Shri Gopal Mandir, v. The C I T,

ITA 184/IND/2009 | misc
Pronouncement Date: 22-07-2011 | Result: Allowed

Appeal Details

RSA Number 18422714 RSA 2009
Assessee PAN AACAS1187M
Bench Indore
Appeal Number ITA 184/IND/2009
Duration Of Justice 2 year(s) 3 month(s) 12 day(s)
Appellant Shri Gopal Mandir,
Respondent The C I T,
Appeal Type Income Tax Appeal
Pronouncement Date 22-07-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 22-07-2011
Date Of Final Hearing 19-05-2011
Next Hearing Date 19-05-2011
Assessment Year misc
Appeal Filed On 09-04-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH INDORE BEFORE SHRI JOGINDER SINGH J.M. AND SHRI R.C.SHARMA A.M. PAN NO. : AACAS1187M I.T.A.NO. 184 / IND /200 9 SHRI GOPAL MANDIR COMMISSIONER OF INCOME - TAX JHABUA VS UJJAIN APPELLANT RE SPONDENT APPELLANT BY : SHRI S. C. GOYAL ADV. RESPONDENT BY : SHRI ARUN DEWAN SR. DR O R D E R PER R. C. SHARMA A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF COMMISSIONER OF INCOME - TAX DATED 3 RD MARCH 2009 IN THE MATTER OF ORDER PASSED U/S 12A/12A A OF THE INCOME - TAX ACT 1961 . 2. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORDS PERUSED. THE FACTS IN BRIEF ARE THAT THE ASSESSEE TRUST HAS FILED AN APPLICATION FOR REGISTRATION U/S 12A/12AA ON 7.2.2007 WHICH WAS REJECTED VIDE CIT S OFFICE ORDER DATED - : 2 : - 2 21.8.2007. THE HON'BLE TRIBUNAL VIDE THEIR ORDER DATED 23.5.08 HAS SET ASIDE AND RESTORED THE MATTER TO THE FILE OF THE CIT WITH THE DIRECTION THAT THE CIT WILL CONSIDER THE OBJECTS OF THE TRUST AND GENUINENESS OF THE ACTIVI TIES IN THE LIGHT OF DISCUSSION HELD IN THE ORDER . THE HON'BLE I.T.A.T. HAS SPECIFICALLY MENTIONED IN PARA 11 THAT AT THE STAGE OF REGISTRATION OF TRUST THE CIT IS ONLY REQUIRED TO CONSIDER THE OBJECTS OF THE TRUST AND GENUINENESS OF THE ACTIVITIES OF TH E TRUST IRRESPECTIVE OF THE FACT THAT THE TRUST WAS BENEFICIAL ONLY TO A PART OF SOCIETY RELIGION CASTE OR CREED. THE APPLICATION OF T HE FUND APPLIED FOR THE OBJECTS OF THE TRUST I.E. O N RELIGIOUS AND CHARITABLE PURPOSE ARE TO BE SEEN BY THE ASSESSING OF FICER AT THE TIME OF FRAMING THE ASSESSMENT. 3. IN THE SET - ASIDE PROCEEDINGS THE LD. CIT OBSERVED THAT THE LAND WAS GIVEN BY THE TRUSTEE TO THE TRUST FOR CARRYING OUT ITS OBJECTS. HE FURTHER OBSERVED THAT THERE IS NO DOUBT THAT TWO OF THE PROPERTIES OF THE TRUST I.E. TEMPLE AND THE GARDEN ARE OPEN TO THE PUBLIC BUT NOT ALL THE PROPERTIES ARE OPEN TO ALL THE PUBLIC. HE THEREFORE HELD - : 3 : - 3 THAT THE ASSESSEE TRUST IS NOT FULLY RELIGIOUS AND CHARITABLE IN NATURE. THEREFORE DECLINED REGISTRATION U/S 12A/12AA. AGAIN ST THE ABOVE ORDER OF THE LD CIT THE ASSESSEE IS IN FURTHER APPEAL BEFORE US. 4. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND CAREFULLY GONE THROUGH THE MATERIAL PLACED BEFORE US AND FOUND THAT IN THE FIRST ROUND OF THE APPEAL BEFORE THE TRIBUNAL THE MATTER WAS RESTORED TO THE LD. CIT WITH A SPECIFIC DIRECTIONS WHEREIN CIT WAS REQUIRED TO CONSIDER ONLY THE OBJECTS OF THE TRUST AND GENUINENESS OF ACTIVITIES OF THE TRUST AT THE TIME OF GRANTING REGISTRATION U/S 12A/12AA IRRESPECTIVE OF TH E FACT THAT TRUST WAS BENEFICIAL ONLY TO A PART OF THE SOCIETY RELIGION CASTE OR CREED. IT WAS ALSO CATEGORICALLY OBSERVED BY THE TRIBUNAL IN ITS ORDER THAT THE APPLICATION OF THE FUND APPLIED FOR THE OBJECTS OF THE TRUST I.E. RELIGIOUS OR CHARITABLE PURPOSE ARE TO BE SEEN B Y THE ASSESSING OFFICER AT THE TIME OF FRAMING THE ASSESSMENT. WHILE HOLDING SO THE TRIBUNAL HAD FOLLOWED THE DECISION OF THE COORDINATE BENCH IN THE CASE OF DAWOODI BOHRA ZAMAT AND OTHERS IN I.T.A.NO. 617 IN - : 4 : - 4 ORDER DATED 28.2.2008 WHEREIN FOLLOWING WAS TH E OBSERVATION : - IN VIEW OF ABOVE FINDINGS WE ARE OF THE VIEW THAT THE ASSESSEE IS A PUBLIC RELIGIOUS TRUST AND THAT THE ACTION OF THE CIT IN REFUSING TO GRANT REGISTRATION TO THE ASSESSEE TRUST ON THE GROUND OF VIOLATION OF PROVISIONS OF SECTIONS 13(1)( B) AND 13(1)(C) OF THE ACT IS NOT JUSTIFIED ESPECIALLY WHEN THE LD. CIT HAD NOT DOUBTED EITHER THE NATURE OF ITS OBJECTS OR GENUINENESS OF THE ACTIVITIES OF THE TRUST. IN THIS VIEW OF THE MATTER WE SET - ASIDE THE IMPUGNED ORDER AND DIRECT THE LD. CIT UJJA IN TO GRANT REGISTRATION TO THE ASSESSEE TRUST U/S 12A/12AA OF THE INCOME - TAX ACT. THE TRIBUNAL IN ITS ORDER DATED 23.5.2008 HAD ALSO OBSERVED THAT WHILE DISPOSING THE ASSESSEE S APPLICATION U/S 12A THE LD. CIT WITHOUT CONSIDERING THE OBJECTS OF THE ASSESSEE TRUST AND PROPER PERSPECTIVE DECLINED TO GRANT REGISTRATION BECAUSE BENEFIT RECEIVED BY THE TRUST ARE - : 5 : - 5 MEANT ONLY FOR RESIDENTS OF GOPAL COLONY. IT WAS FURTHER OBSERVED THAT LD. CIT HAS FAILED TO NOTE THAT PERSONS LIVING IN GOPAL COLONY ARE PERSO NS FROM PUBLIC AND COULD GET BENEFIT ALONGWITH OTHER PERSONS FROM THE CHARITABLE TRUST. THUS THE MATTER WAS RESTORED TO THE LD. CIT WITH THE SPECIFIC DIRECTION WHEREIN HE WAS REQUIRED TO CONSIDER THE OBJECT OF THE TRUST AND GENUINENESS OF ITS ACTIVITY. IT IS PERTINENT TO MENTION THAT AGAINST TH IS ORDER OF THE TRIBUNAL DATED 25.2.2008 THE REVENUE HAS ALREADY APPROACHED TO THE HON'BLE HIGH COURT BY FILING A WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION BUT THE SAME WAS DISMISSED BY THE HON'BLE HIGH C OURT VIDE ITS ORDER DATED 5.2.2009. THEREAFTER IN THE SET - ASIDE PROCEEDINGS THE LD. CIT TRAVELED BEYOND THE DIRECTION GIVEN BY THE TRIBUNAL. INSPITE OF THE CLEAR DIRECTION BY THE TRIBUNAL THAT APPLICATION OF THE FUND APPLIED FOR THE OBJECT OF THE TRUST A RE TO BE SEEN BY THE ASSESSING OFFICER AT THE TIME OF FRAMING THE ASSESSMENT THE LD. CIT HAS NOT CONSIDERED THE SAME AND AFTER GIVING HIS COMMENTS THEREON WITHOUT ANY COGENT REASON HELD THAT ASSESSEE - : 6 : - 6 TRUST WAS NOT GENUINE. THUS IN THE SET - ASIDE PROCEEDI NGS THE LD. CIT WAS REQUIRED TO RECONSIDER THE ISSUE STRICTLY IN ACCORDANCE WITH THE DIRECTIONS GIVEN BY THE TRIBUNAL IN ITS ORDER. HOWEVER HE TRAVELED BEYOND THESE DIRECTIONS AND DECLINED TO GRANT REGISTRATION. THE OBJECTION RAISED BY THE LD. CIT HAS AL READY BEEN MET BY THE ASSESSEE DURING THE COURSE OF PROCEEDINGS BEFORE HIM AS IS EVIDENT FROM THE REPLY PLACED ON RECORD. EVEN THE CASE LAWS CITED BY THE LD. CIT REPORTED AT 235 ITR 367 AND 241 ITR 76 ARE ON DIFFERENT FACTS AS THERE WAS NO OBLIGATION CAST HOW THE INCOME DERIVED WILL BE USED EXCLUSIVELY FOR THE CHARITABLE PURPOSES. THE CASES SO REFERRED BY THE LEARNED CIT WAS IN RELATION TO A COMPANY LIMITED BY GUARANTEE. THERE WAS NO OBLIGATION OR OBJECT IN THE SAID CASE AS TO HOW THE INCOME WILL BE EARNED BY TRUST FOR CHARITABLE PURPOSES. THE COMMISSIONER RELIED ON THE CASES WHICH ARE NOT APPLICABLE TO THE FACTS OF PRESENT CASE. WE FOUND THAT IN ITS EARLIER ORDER THE TRIBUNAL IN PARA 12 HAS CLEARLY STATED AS TO HOW THE MONEY WILL BE SPENT. IT WAS ALSO EXPLAINED THAT THE AMOUNT EARNED WILL BE SPENT AND BALANCE SHEET - : 7 : - 7 WAS FILED FOR THE PERIOD ENDING ON MARCH 2007 NOTED THAT THE TOTAL RECEIPTS OF THIS TRUST IS RS. 2 86 139/ - AND THE TOTAL AMOUNT SPENT WAS RS. 2 64 269/ - GIVING SAVING OF RS. 21 870/ - ONLY WHICH IS CLEARLY DEPICTED AT PAGE 78 IN BALANCE SHEET PLACED ON RECORD. WE ALSO FOUND FROM ORIGINAL TRUST DEED AS PLACED ON RECORD THAT OUT OF PROCEEDS OF 95 PLOTS CONSTRUCTION SHALL BE MADE OF TEMPLE REST HOUSE SCHOOL BOARDING HOUSE GENERAL STORES C OOPERATIVE STORES AND OTHER SHOPS. THUS THE TRUST HAD CLEARLY INDICATED THE NATURE OF INCOME OF THE TRUST AND HOW IT WAS TO BE UTILIZED FOR THE PUBLIC CHARITIES. FROM THE RECORD WE FOUND THAT THE ASSESSEE TRUST WAS RUNNING A MANDIR AND ALSO CARRYING ON CHARITABLE PROJECT. SO FAR AS THE APPLICATION OF THE FUND FOR CHARITABLE PURPOSES IS CONCERNED THE SAME IS REQUIRED TO BE SEEN AT THE TIME OF ASSESSMENT IN TERMS OF THE DIRECTIONS GIVEN BY THE TRIBUNAL IN ITS ORDER DATED 23.5.2008. KEEPING INTO VIEW THE D OCUMENTS PLACED ON RECORD WE FOUND THAT OBJECT AND ACTIVITIES OF TRUST ARE GENUINE THEREFORE IT IS A FIT CASE FOR GRANTING OF REGISTRATION U/S 12A/12AA OF THE INCOME - TAX - : 8 : - 8 ACT 1961. THE DEPARTMENT IS AT LIBERTY TO VERIFY THE UTILIZATION OF THE FUNDS COLL ECTED BY THE ASSESSEE TRUST TO MEET OUT THE OBJECTS AS MENTIONED IN ITS MEMORANDUM AT THE TIME OF FRAMING THE REGULAR ASSESSMENT. 5. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED IN TERMS INDICATED HEREIN ABOVE. THIS ORDER HAS BEEN PRONOUNCED IN T HE OPEN COURT ON 22 ND JU LY 2011. SD/ - SD/ - (JOGINDER SINGH) ( R.C.SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 22 ND JU LY 2011 . CPU* 20217