M/s. Ginia Devi Todi Charitable Trust, Kolkata v. DIT(Exemption) , Kolkata, Kolkata

ITA 2107/KOL/2009 | misc
Pronouncement Date: 09-04-2010

Appeal Details

RSA Number 210723514 RSA 2009
Assessee PAN AABTG2461J
Bench Kolkata
Appeal Number ITA 2107/KOL/2009
Duration Of Justice 3 month(s) 29 day(s)
Appellant M/s. Ginia Devi Todi Charitable Trust, Kolkata
Respondent DIT(Exemption) , Kolkata, Kolkata
Appeal Type Income Tax Appeal
Pronouncement Date 09-04-2010
Appeal Filed By Assessee
Bench Allotted B
Tribunal Order Date 09-04-2010
Assessment Year misc
Appeal Filed On 11-12-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : KOLKATA [BEFORE HONBLE SRI D. K. TYAGI JM & HONBLE SRI C . D. RAO AM] I.T.A. NO. 2107/KOL/2009 ASSESSMENT YEAR : M/S. GINIA DEVI TODI CHARITABLE TRUST -VS- DIRECTO R OF INCOME-TAX (EXEMPTION) (PA NO.AABTG 2461 J) (APPELLANT) (RESPONDENT) APPELLANT BY : SRI SUBASH AGARWAL RESPONDENT BY : SMT. JYOTI KUMARI O R D E R PER D. K. TYAGI JM : THIS APPEAL PREFERRED BY THE ASSESSEE IS DIRECTED A GAINST THE ORDER OF THE LD. DIT(E) KOLKATA DATED 17.06.2009 IN REJECTING THE A PPLICATION OF THE ASSESSEE DATED 19.12.2008 IN FORM 10A AND 10G FOR GRANTING REGISTR ATION U/S. 12AA OF THE I. T. ACT AND INITIAL EXEMPTION U/S. 80G OF THE I. T. ACT. . 2. THIS APPEAL OF THE ASSESSEE HAS BEEN TIME BARRED BY 66 DAYS. AN APPLICATION FOR CONDONATION OF DELAY HAS BEEN FILED BY THE ASSESSEE . AFTER HEARING BOTH THE PARTIES AND CONSIDERING THE CONDONATION APPLICATION OF THE ASSE SSEE THE DELAY OF 66 DAYS HAS BEEN CONDONED AND THE APPEAL IS ADMITTED FOR HEARING. 3. AT THE TIME OF HEARING BEFORE US THE LD. COUNSE L FOR THE ASSESSEE CONTENDED THAT THE ASSESSEE IS AGGRIEVED BY THE REJECTION OF APPLI CATION U/S. 12AA AND INITIAL EXEMPTION U/S. 80G BUT HAS FILED ONLY ONE APPEAL. HE THEREFO RE REQUESTED THE BENCH TO TREAT THIS APPEAL AGAINST THE ORDER U/S. 12AA WITH THE PERMIS SION TO FILE ANOTHER APPEAL FOR REJECTION OF EXEMPTION U/S. 80G OF THE ACT. 4. THE FACTS OF THE CASE AS REVEALED FROM THE ORDER OF THE LD. DIT(E) ARE AS UNDER : AS PER THE INFORMATION AVAILABLE FROM THE RECORDS IT IS SEEN THAT THE APPLICANT TRUST HAS COME INTO EXISTENCE ON 27.05.2008 AND IS YET TO COM MENCE ACTIVITIES. AS SUCH THERE IS NO BAR ON THE ACTIVITIES TO BE CONDUCTED OR PERFORMED BY A CHARITABLE TRUST INSTITUTION IN THE ABSENCE OF THE REGISTRATION UNDER I. T. ACT. MOREOV ER THE SECTION 12AA OF ACT MAKES IT MANDATORY FOR THE DIRECTOR/COMMISSIONER OF INCOME T AX TO SATISFY HIMSELF ABOUT THE NATURE OF OBJECTS OF THE TRUST/INSTITUTION AND THE GENUINENESS OF THE ACTIVITIES CONDUCTED. THE QUESTION OF EXAMINING THE ACTIVITIES TO ASCERTA IN THE GENUINE NATURE THEREOF CAN ARISE ONLY WHEN THE ACTIVITIES CONTEMPLATED IN THE TRUST DEED COMMENCE IN RIGHT EARNEST. UNLESS ANY PUBLIC ACTIVITY AS INTENDED BY THE INSTR UMENT GOVERNING THE APPLICANT STARTS IT WOULD NOT BE POSSIBLE TO EXAMINE THE GENUINENESS OF NATURE OF ACTIVITIES PERFORMED- THE A/R INCIDENTALLY HAS ALSO ADMITTED IN THE HEARI NG GRANTED THAT THE APPLICANT IS YET TO COMMENCE THE ACTIVITIES AS CONTEMPLATED IN THE T RUST DEED. 2 ACCORDINGLY THE APPLICANT TRUST DOES NOT DESERVE T HE GRANT OF THE REGISTRATION U/S 12AA OF THE ACT SINCE THE APPLICANT IS YET TO COMMENCE I TS ACTIVITIES. RELIANCE IS DRAWN ON THE DECISION OF KERALA HIGH COURT IN THE CASE OF SELF E MPLOYEES SERVICE SOCIETY VS. CIT (2001) 247 ITR 18 (KERALA). I AM TO INFORM YOU THAT YOUR ABOVE-CITED APPLICATIONS DTD. 19.12.2908 FILED IN FORM NO. 10A AND 10C HAVE BEEN REJECTED. AGGRIEVED BY THIS ORDER NOW THE ASSESSEE IS IN APP EAL BEFORE US. 5. AT THE TIME OF HEARING BEFORE US THE LD. COUNSE L FOR THE ASSESSEE SUBMITTED THAT THE ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE TRUS T BY VARIOUS DECISIONS OF THE TRIBUNAL VIZ. ITA NO.2095/KOL/2008 & ITA NO.27/KOL/2009 V IVEKANANDA WELFARE TRUST VS- DIT(E) DATED 23.1.2009 ITA NO. 2101/KOL/2008 & ITA NO.44/KOL/2009 SHE FOUNDATION VS- DIT(E) DATED 30.1.2009 AND ITA NO.1 444 AND 1445/KOL/2009 NATHURAM HARIKA CHARITABLE TRUST VS- DIT(E) DATED 28.10.2009. HE THEREFORE URGED BEFORE THE BENCH TO GRANT REGISTRATION U/S. 12AA OF THE I. T. ACT. 6.. ON THE OTHER HAND THE LD. DR RELIED ON THE ORD ER OF THE LD. DIT(E). 7. WE HAVE HEARD BOTH THE SIDES PERUSED THE MATERI AL AVAILABLE ON RECORD AND THE DECISIONS CITED BY THE LD. COUNSEL FOR THE ASSESSEE . WE FIND THAT ON AN IDENTICAL ISSUE THE TRIBUNAL IN THE CASE OF VIVEKANANDA WELFARE TRU ST VS- DIT(E) (SUPRA) HAS HELD AS UNDER : 4. WE HAVE HEARD THE PARTIES AND PERUSED THE MATE RIAL PLACED BEFORE US. WE HAVE ALSO GONE THROUGH THE TRUST DEED AND OBJECTS OF THE TRUST COPY OF WHICH IS PLACED IN THE PAPER BOOK FILED BEFORE US. THE ASSESSEE-TRUST IS REGISTERED WITH THE REGISTRAR OF ASSURANCE KOLKATA. THE OBJECTS OF THE TRUST ARE S PECIFYING PURPOSES OF PUBLIC CHARITABLE TRUST. WE FIND THAT IDENTICAL ISSUE HAS BEEN EXAMINED BY THE I.T.A.T. DELHI BENCH IN THE CASE OF DHARMA SANSTHAPAK SANGH (NIVAS ) VS. CIT REPORTED IN (2008) 118 TTJ (DEL) 823. IN THAT CASE THE C.I.T. OBSERVED TH AT THE APPLICANT-TRUST HAS NOT MADE ANY CHARITABLE ACTIVITY OR EVEN HAS NOT PERFORMED A NY OTHER ACTIVITY AND THEREFORE HE WAS NOT SATISFIED WITH THE GENUINENESS OF THE ACTIV ITIES OF THE TRUST. HE THEREFORE REJECTED THE ASSESSEES APPLICATION FOR GRANT OF RE GISTRATION U/S. 12A . THE ASSESSEE- TRUST CAME IN APPEAL BEFORE THE I.T.A.T. THE DELHI BENCH OF I.T.A.T. AFTER CAREFULLY CONSIDERING THE RIVAL SUBMISSIONS TRUST DEED ETC. DID NOT ENDORSE THE ACTION OF THE C.I.T. IN REFUSING GRANT OF REGISTRATION TO THE ASSESSEE-T RUST AND HELD AS UNDER :- 9. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSI ONS IN THE LIGHT OF THE MATERIAL PLACED BEFORE US. WE HAVE GONE THROUGH THE SUPPLEM ENTARY TRUST DEED COPY OF WHICH IS PLACED AT PP. 8 TO 11 OF THE PAPER BOOK. THE SAME IS REGISTERED WITH THE SUB-REGISTRAR VIDE HIS ORDER DT. 24 TH MAY 2007. WE HAVE ALSO GONE THROUGH THE OBJECTS OF THE TRUST A COPY OF WHICH IS PLACED AT P.5 OF THE PAPER BOOK. THE OBJECTS OF THE TRUST ARE SPECIFYING PURPOSE OF RELIGIOUS ACTIVITIES. SUCH FACTS ARE AL SO NOT DISPUTED BY THE LEARNED DEPARTMENTAL REPRESENTATIVE. THE REGISTRATION CANN OT BE DENIED TO THE ASSESSEE FOR THE REASON THAT IT IS NOT CARRYING ON CHARITABLE ACTIVI TIES. RELIGIOUS ACTIVITIES ARE ALSO CONSTRUED TO BE CHARITABLE ACTIVITIES AS PER THE DE CISION OF HONBLE ALLAHABAD HIGH COURT IN THE CASE OF CIT VS. RADHASWAMI SATSANG (SU PRA) AND THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF HAZARAT PIRMAH OMED SHAH SAHEB ROZA COMMITTEE VS. CIT (SUPRA). THE OBSERVATIONS OF CIT THAT TRUST DEED DOES NOT SPECIFY THE FATE OF ASSETS AND LIABILITIES IN CASE OF DISSOLUTI ON OF TRUST IT IS OBSERVED THAT CL. 78 OF THE TRUST DEED SPECIFIES THAT IN CASE OF DISSOLUTIO N OF TRUST EVERYTHING RELATED TO TRUST 3 SHALL BE HANDED OVER TO THE JUSTIFIED NATIONAL GOVE RNMENT. THUS THIS OBSERVATION OF THE CIT IS CONTRARY TO THE FACTS FOUND ON RECORD. 10. THE LAW IS NOW WELL-SETTLED THAT WHILE GRANTI NG THE REGISTRATION TO THE CHARITABLE INSTITUTION OR TRUST IF IT IS AT THE COMMENCEMENT STAGE THE POWERS OF CIT WITH WHOM THE APPLICATION IS FILED BY SUCH TRUST/INSTITUTION ARE LIMITED TO THE ASPECT OF EXAMINING THAT WHETHER OR NOT THE OBJECTS OF TRUST ARE CHARIT ABLE IN NATURE AND THIS WELL ESTABLISHED LAW IS SUPPORTED BY THE DECISIONS RELIED UPON THE L EARNED AUTHORISED REPRESENTATIVE AND REFERRED TO IN THE EARLIER PART OF THE ORDER. IT HAS ALREADY BEEN OBSERVED THAT OBJECTS OF TRUST WHICH ARE RELIGIOUS ARE CHARITAB LE IN NATURE. THUS ASSESSEE ALSO FULFILLS SUCH CONDITION. THE CARRYING OF CHARITABLE ACTIVITY AT THE STAGE OF COMMENCEMENT OF INSTITUTION IS NOT RELEVANT TO DECIDE THAT WHETH ER SUCH TRUST/ INSTITUTION IS ENTITLED FOR REGISTRATION. SO LONG THE OBJECTS OF THE TRUST ARE CHARITABLE IN NATURE REGISTRATION CANNOT BE REFUSED IF THE TRUST IS GENUINE . THEREFORE WE FIND NO MATERIAL ON RECORD TO JUSTIFY THE ACTION OF THE CIT VIDE WHICH THE ASSESS EE TRUST HAS BEEN REFUSED FOR GRANT OF REGISTRATION. WE DIRECT CIT TO GRANT REGISTRATION TO THE CIT (SIC-ASSESSEE-TRUST). THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. [EMPHASIS SUPPLIED] WHILE DECIDING THE APPEAL IN THE ABOVE CASE THE TR IBUNAL TOOK INTO CONSIDERATION THE DECISIONS OF TRIBUNAL IN THE CASES OF ACHARYA SEWA NIYAS UTTARANCHAL VS. CIT [(2006) 105 TTJ (DEL) 761] AND MODERN DEFENCE SHIKSHAN SANS THAN VS. C.I.T. [(2007) 108 TTJ (JD) 732]. FACTS OF THE PRESENT CASE BEFORE US BE ING IDENTICAL TO THE CASE REFERRED TO ABOVE WE RESPECTFULLY FOLLOWING THE DECISION OF TH E TRIBUNAL IN THE CASE OF DHARMA SANSTHAPAK SANGH (NIVAS) VS. CIT (SUPRA) DIRECT THE D.I.T. (EXEMPTION) TO GRANT REGISTRATION TO THE ASSESSEE-TRUST U/S. 12AA OF THE ACT AND ALSO GRANT EXEMPTION CERTIFICATE U/S. 80G OF THE ACT. IN VIEW OF THE ABOVE AND FOLLOWING THE AFORESAID OR DER OF THE TRIBUNAL WE DIRECT THE LD. DIT(E) TO GRANT REGISTRATION TO THE ASSESEE TRUST U /S. 12AA OF THE ACT. THEREFORE THE APPEAL OF THE ASSESSEE IS ALLOWED. 8. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 9.4.2010 SD/- SD/- (C. D. RAO) ( D. K. TYAGI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 9TH APRIL 2010 COPY FORWARDED TO THE :- 1) M/S. GINIA DEVI TODI CHARITABLE TRUST 19/1 CAM AC STREET 3 RD FLOOR KOLKATA-17. 2) DIT(E) KOLKATA 3) CIT KOLKATA. 4) D. R. ITAT KOLKATA. (TRUE COPY) BY ORDER DEPUTY REGISTRAR JD. (SR. P.S.) I.T.A.T. KOLKATA