Seth Manakmall Lodha Charitable Trust, Kolkata v. DIT, Exemption, Kolkata, Kolkata

ITA 2157/KOL/2009 | misc
Pronouncement Date: 05-05-2010

Appeal Details

RSA Number 215723514 RSA 2009
Assessee PAN AAHTS8505K
Bench Kolkata
Appeal Number ITA 2157/KOL/2009
Duration Of Justice 4 month(s) 11 day(s)
Appellant Seth Manakmall Lodha Charitable Trust, Kolkata
Respondent DIT, Exemption, Kolkata, Kolkata
Appeal Type Income Tax Appeal
Pronouncement Date 05-05-2010
Appeal Filed By Assessee
Bench Allotted A
Tribunal Order Date 05-05-2010
Date Of Final Hearing 05-05-2010
Next Hearing Date 05-05-2010
Assessment Year misc
Appeal Filed On 24-12-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL BENCH - A KOLKATA ( ) BEFORE . . SHRI B.R.MITTAL JUDICIAL MEMBER. /AND . . SHRI C.D. RAO ACCOUNTANT ME MBER . / I.T.A.NO S . 2157 AND 2158/KOL/2009 SETH MANAKMALL LODHA CHARITABLE TRUST 6/1/2 QUEENS PARK KOLKATA 700 019 AAHTS 8505 K. - - - VERSUS - . DIT(EXEMPTION) KOLKATA. ( / A PPELLANT ) ( / RESPONDENT ) / FOR THE APPELLANT : / SHRI S.M.SURANA AR / FOR THE RESPONDENT : / SHRI SANJAY BARA DR / ORDER . . SHRI B.R.MITTAL JUDICIAL MEMBER. THE ASSESSEE - TRUST HAS FILED THESE TWO APPEALS AGAI NST ORDER DT.11/24.9.2009 OF THE DIRECTOR OF INCOME - TAX (EXEMPTION) KOLKATA REJECTING THE APPLICATIONS DT.16.3.2009 FILED BY THE ASSESSEE IN FORMS NO.10A AND 10G FOR GRANT OF REGISTRATION U/S.12AA AND APPROVAL U/S.80G(5)(VI) OF THE INCOME - TAX ACT 1961. BO TH THE APPEALS WERE HEARD TOGETHER AND ARE NOW DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. THE ASSESSEE - TRUST CAME INTO EXISTENCE ON 24.11.2008 FOR VARIOUS PUBLIC CHARITABLE PURPOSES. THE ASSESSEE FILED APPLICATION IN FORM NOS.10A A ND 10G BEFORE THE LEARNED DIRECTOR OF INCOME - TAX (EXEMPTION) KOLKATA FOR GRANT OF REGISTRATION U/S. 12AA AND APPROVAL U/S.80G(5) OF THE ACT ON 16.03.2009 . THE ASSESSEES AFORESAID APPLICATION FOR GRANT OF REGISTRATION UNDER SECTION 12AA AND EXEMPTION UND ER SECTION 80G(5) WERE REJECTED BY THE LEARNED DIT(EXEMPTION) VIDE HIS SINGLE ORDER DATED 1 1 /24.09.2009 MAINLY ON THE GROUND THAT THE ASSESSEE - TRUST IS YET TO COMMENCE ANY ACTIVITIES . ACCORDING TO THE LEARNED DIT(EXEMPTION) AS PER SECTION 12AA (I)(B) OF THE ACT IT IS MANDATORY FOR HIM TO / I.T.A.NOS.2157 AND 2158/KOL/2009 2 SATISFY HIMSELF ABOUT THE NATURE OF OBJECTS OF THE TRUST AND THE GENUINENESS OF THE ACTIVITIES CONDUCTED . THE LEARNED DIT(EXEMPTION) WAS OF THE VIEW THAT UNLESS ANY PUBLIC ACTIVITY AS INTENDED BY THE INSTRUMENT GOVERN ING THE ASSESSEE - TRUST STARTS IT WOULD NOT BE POSSIBLE TO EXAMINE THE GENUINENESS OF NATURE OF ACTIVITIES PERFORMED. ON THE ABOVE REASONING THE LEARNED DIT(EXEMPTION) REJECTED THE ASSESSEES APPLICATION S FOR GRANT OF REGISTRATION U/S.12AA AND ALSO FOR AP PROVAL U/S.80G(5) OF THE ACT. HENCE THE ASSESSEE HAS FILED THESE APPEALS BEFORE THE TRIBUNAL. 3. AT THE TIME OF HEARING THE LEARNED AR OF THE ASSESSEE CONTENDED THAT ON SIMILAR FACTS THE ITAT KOLKATA BENCHES IN SEVERAL CASES HAS DIRECTED THE LEARNED DIT TO GRANT REGISTRATION U/S.12AA AND ALSO TO GRANT EXEMPTION CERTIFICATE UNDER SECTION 80G OF THE ACT. HE RELIED ON THE ORDERS OF THE TRIBUNAL IN THE FOLLOWING CASES COPIES OF WHICH ARE PLACED ON RECORD TO SUBSTANTIATE HIS STAND AND THEY ARE - SL.NO . ITA NO S . AND DATE OF ORDER. NAME OF PARTIES. 1 . 1619 & 1222/KOL/2009 DT.9.10.2009 SHREE NARSINGH MANAV KALYAN V. DIT(E) 2 . 202 AND 203/KOL/2009 DT.27.3.2009 BALAJI PUNBL;IOC CHARITABLE TRUST V. DIT(E) 3 . 2095/KOL/2008 AND 27/KOL/2009 DT.23.1.2009 VIVEKANAND A WELFARE TRUST V. DIT(E) 4 . 2101/KOL/2008 AND 44/KOL/2009 DT.30.1.2009 SHE FOUNDATION V. DIT(E). 5 . 1461 AND 1462/KOL/2009 DT.23.10.2009 JAI SHRE SHYAM JAI HANUMAN PARIWAR CHURIDHAM TRUST V. DIT(E). 6 . 1342 AND 1343/KOL/2009 DT.16.9.2009 RUPA FOUNDATION V. D IT(E) 7 . 1256 AND 1527/KOL/2009 DT.19.10.2009 BACHHARAJ BIJAY SINGH DAGA CHARITABLE TRUST V. DIT(E) 8 . 45/KOL/2009 AND OTHERS VIDE CONSOLIDATED ORDER DT.24.4.2009 RAMNIKLAL VANMALIVASA CHARITABLE TRUST & ANOTHER V. DIT(E) THE LEARNED DR DID NOT DISPUTE TH E ABOVE SUBMISSION OF THE LEARNED AR OF THE ASSESSEE. / I.T.A.NOS.2157 AND 2158/KOL/2009 3 4. HEARD THE LEARNED REPRESENTATIVES OF THE PARTIES AND GONE THROUGH THE ORDERS OF THE LEARNED DIT(E) AND ALSO THE ORDER OF THE TRIBUNAL RELIED ON BY THE LEARNED AR OF THE ASSESSEE. IN ITA NO. 2101/KO L/2008 AND 44/KOL/2009 DT.30.1.2009 IN THE CASE OF SHE FOUNDATION V. DIT(E) WHICH HAS BEEN SUBSEQUENTLY FOLLOWED BY THE TRIBUNAL WHILE DECIDING IDENTICAL ISSUE IN SEVERAL OTHER CASES THE TRIBUNAL HAS DIRECTED THE LEARNED DIT(E) TO GRANT REGISTRATION U/S. 12AA AND ALSO TO GRA NT APPROVAL U/S.80G OF THE ACT. IT IS RELEVANT TO REPRODUCE PARA 4 OF THE SAID ORDER DT.30.1.2009 PASSED BY THE TRIBUNAL. 4. WE HAVE HEARD THE PARTIES AND PERUSED THE MATERIAL 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 SPECIFYING PURPOSES OF PUBLIC CHARITABLE TRUST. WE FIND THAT ID ENTICAL 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 THAT THE APPLICANT - TRUST HAS NOT MADE ANY CHARITABLE ACTIVITY OR EVEN HAS NOT PERFORMED ANY OTHER ACTIVITY AND THEREFORE HE WAS NOT SATISFIED WITH THE GENUINENESS OF THE ACTIVITIES OF THE TRUST. HE THEREFORE REJECTED THE ASSESSEES APPLICATION FOR GRANT OF REGISTRATION U/S.12A. THE ASSESSEE - TRUST CAME IN APPEAL BEFORE TH E 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 - TRUST AND HELD AS UNDER: - 9. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS IN THE LIGHT OF THE MATERIAL PLACED BEFORE US. WE HAVE GONE THROUGH THE SUPPLEMENTARY TRUST DEED COPY O F 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 MAR.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 ALSO NOT DISPUTED BY THE LEARNED DEPARTMENTAL REPRESENTATIVE. THE REGISTRATION CANNOT BE DENIED TO THE ASSESSEE FOR THE REASON THAT IT IS NOT CARRYING ON CHARITABLE ACTIVITIES. RELIGIOUS ACTIVITIES ARE ALSO CONSTRUED TO BE CHARITABLE ACTIVITIES AS PER THE DECISION OF THE HONBLE ALLAHABD HIGH COURT IN THE CASE OF CI T / I.T.A.NOS.2157 AND 2158/KOL/2009 4 VS. RADHAWAMI SATSANG (SUPRA) AND THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF HAZARAT PIRMAHOMED 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 DISSOLUTION OF TRUST IT IS OBSERVED THAT CL.78 OF THE TRUST DEED SPECIFIES THAT IN CASE OF DISSOLUTION OF TRUST EVERYTHING RELATED TO TRUST SHALL BE HANDED OVER TO THE JUSTFUL NATIONAL GOVERNMENT. THUS THIS OBSERVATION OF THE CIT IS CONTRARY TO TH E FACTS FOUND ON RECORD. 10. THE LAW IS NOW WELL - SETTLED THAT WHILE GRANTING 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 CHARITABLE IN NATURE AND THIS WELL ESTABLISHED LAW IS SUPPORTED BY THE DECISIONS RELIED UPON THE LEARNED 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 CHARITABLE IN NATURE. THUS THE ASSESSEE ALSO FULFILLS SUCH CONDITION. THE CARRYING OF CHARITABLE ACTIVITY AT THE STAGE OF COMMENCEMENT OF INSTITUTION IS NOT RELEVANT TO DECIDE THAT WHETHER 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 ACT ION OF THE CIT VIDE WHICH THE ASSESSEE 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 TRIBUNAL TOOK INTO CONSIDERATION THE DECISIONS OF TRIBUNAL IN THE CASES OF ACHARYA SEWA NIVAS UTTRANCHAL VS. CIT (2006) 105 TTJ (DEL) 761] AND MODERN DEFENCE SHIKSHAN SANSTHAN VS. C.I.T (2007) 108 TTJ (JD) 732]. FACTS OF THE PRESENT CA SE BEFORE US BEING IDENTICAL TO THE CASE REFERRED TO ABOVE WE RESPECTFULLY FOLLOWING THE DECISION OF THE 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. / I.T.A.NOS.2157 AND 2158/KOL/2009 5 UNDISPUTEDLY THE F ACTS BEING SIMILAR IN THE INSTANT CASE BY FOLLOWING THE AFORESAID ORDERS OF THE TRIBUNAL WE SET ASIDE THE IMPUGNED ORDER OF THE LEARNED DIT(E) AND DIRECT HIM TO GRANT REGISTRATION TO THE ASSESSEE TRUST U/S.12AA AND ALSO GRANT APPROVAL U/S.80G OF THE INCOME - TAX ACT 1961. 5. IN THE RESULT BOTH THE APPEALS ARE ALLOWED THIS ORDER IS PRONOUNCED IN OPEN COURT ON DT. 05 TH MAY 2010 SD/ - SD/ - ( . . ) (C.D. RAO) ACCOUNTANT MEMBER ( . . ) ( B.R.MITTAL ) JUDICIAL MEMBER ( ) DATE : 5.5.2010 - COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT : SETH MANAKMALL LODHA CHARITABLE TRUST 6/1/2 QUEENS PARK KOLKATA 700 019 2 / THE RESPONDENT - DIT(EXEMPTION) KOLKATA. 3. / THE CIT 4. ( )/ THE CIT(A) 5. / DR KOLKATA BENCH 6. GUARD FILE . / TRUE COPY / BY ORDER / DEPUTY REGISTRAR . ( / ) H.K.PADHEE / SNR.PRIVATE SECRETARY.