Shjri Gokulesh Shiksha Prasar Samiti, Mathura v. CIT, Agra

ITA 457/AGR/2009 | 2009-2010
Pronouncement Date: 15-07-2011 | Result: Allowed

Appeal Details

RSA Number 45720314 RSA 2009
Assessee PAN AAETS2685R
Bench Agra
Appeal Number ITA 457/AGR/2009
Duration Of Justice 1 year(s) 7 month(s) 14 day(s)
Appellant Shjri Gokulesh Shiksha Prasar Samiti, Mathura
Respondent CIT, Agra
Appeal Type Income Tax Appeal
Pronouncement Date 15-07-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 15-07-2011
Date Of Final Hearing 13-07-2011
Next Hearing Date 13-07-2011
Assessment Year 2009-2010
Appeal Filed On 01-12-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH AGRA BEFORE SHRI P.K. BANSAL ACCOUNTANT MEMBER AND SHRI H.S. SIDHU JUDICIAL MEMBER ITA NO.457/AGR/2009 ASST. YEAR: 2009-10 SHRI GOKULESH SHIKSHA PRASAR SAMITI VS. COMMIS SIONER OF INCOME TAX-1 NAVI BAI RAMJI AASER DHAR AGRA. AMSHALA GOLKUL MATHURA (PAN : AAETS 2685 R) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI DEEPENDRA MOHAN C.A. RESPONDENT BY : SHRI VINOK KUMAR JR. D.R. ORDER PER H.S. SIDHU J.M. : THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST T HE IMPUGNED ORDER DATED 18.09.2009 PASSED BY THE LD. CIT-I AGRA ON THE FOL LOWING GROUNDS OF APPEAL :- 1. THE LEARNED COMMISSIONER OF INCOME TAX HAS ERRE D IN LAW AND ON FACTS IN NOT ALLOWING RENEWAL U/S 80G OF THE INC OME TAX ACT 1961 EVEN WHEN THE TRUST IS ESTABLISHED FOR CHARITABLE P URPOSES. 2. THE LEARNED COMMISSIONER OF INCOME TAX HAS ERRED IN LAW AND ON FACTS IN NOT GRANTING RENEWAL U/S 80G EVEN WHEN THE SOCIETY HAD PREVIOUSLY GOT THE REGISTRATION U/S 80G. 3. THAT THE ORDER PASSED BY THE LEARNED COMMISSIONE R OF INCOME TAX IS BAD IN LAW AND AGAINST THE FACTS OF THE CASE . 2 4. THE APPELLANT CRAVES LEAVE TO ADD ALTER AMEND OR VARY THE GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING. 2. THE FACTS RELATING TO THE ISSUE IN DISPUTE ARE T HAT THE ASSESSEE SOCIETY HAS MOVED AN APPLICATION DATED NIL IN FORM NO.10G FOR R ENEWAL OF GRANT OF APPROVAL UNDER SECTION 80G(5) OF THE INCOME TAX ACT 1961 ( THE ACT HEREINAFTER). THE APPLICATION WAS SUBMITTED IN THE OFFICE OF THE LD. CIT-I AGRA ON 20.03.2009. ON PERUSAL OF THE SAME THE LD. CIT-I AGRA OBSERVED T HAT THE SOCIETY IS RUNNING SCHOOL IN THE NAME AND STYLE OF GOKULESH BAL MANDI R AND KANHAIYA PRABHU JUNIOR HIGH SCHOOL. SHE ALSO PERUSED THE FINAL AC COUNTS OF THE SOCIETY AND AUDIT REPORT IN FORM 10B AND OBSERVED THAT ACCOUNTS OF TH E ABOVE SCHOOLS ARE NOT AUDITED NOR THESE HAVE BEEN INCLUDED IN THE ACCOUNT S OF THE SOCIETY. SHE FURTHER NOTICED THAT NO CHARITABLE ACTIVITY HAS BEEN DONE B Y THE SOCIETY. KEEPING IN VIEW OF THESE POINTS SHE ISSUED SHOW CAUSE NOTICE TO TH E ASSESSEE AS TO WHY APPLICATION FOR GRANT OF APPROVAL UNDER SECTION 80G(5)(VI) MAY NOT BE REJECTED. IN RESPONSE TO THE SAME THE ASSESSEE TRUST FILED ITS WRITTEN SUBM ISSION STATING THAT THE SOCIETY IS WORKING TO HELP IN MAINTENANCE OF SCHOOL BUILDING A ND OTHER SOCIAL WORK. THE SOCIETY ALSO REPLIED THAT THE SOCIETY DOES NOT OPER ATE ANY SCHOOL AND THAT THE APPLICATION FOR RENEWAL OF GRANT OF APPROVAL UNDER SECTION 80G IS FOR THE SOCIETY AND NOT FOR THE SCHOOL. AFTER CONSIDERING THE REPL Y FILED BY THE ASSESSEE SOCIETY THE LD. CIT-I AGRA PERUSED THE REPLY ALONG WITH OT HER DOCUMENTARY EVIDENCES 3 FILED BY THE SOCIETY AND FINALLY REJECTED THE APPLI CATION OF THE SOCIETY VIDE THE IMPUGNED ORDER DATED 18.09.2009 BY HOLDING THAT THE ACTIVITIES OF THE SCHOOLS ARE SEPARATE FROM SOCIETY AND SOCIETY DOES NOT OPERATE ANY SCHOOL IS NOT FOUND TO BE ACTUALLY CORRECT AND THE EVIDENCES PRODUCED BY THE ASSESSEE ESTABLISHED THAT THE ASSESSEE SOCIETY IS RUNNING SCHOOLS. SHE FURTHER H ELD THAT THE INCOME EARNED BY SUCH SCHOOLS HAS NOT BEEN INCLUDED IN THE ACCOUNTS OF SOCIETYS INCOME. AS PER PROVISIONS OF SECTION 12A OF THE ACT WHICH ENLISTS THE CONDITIONS FOR APPLICABILITY OF SECTION 11 & 12 OF THE ACT THE INCOME EARNED FR OM SUCH SCHOOLS RUN BY THE ASSESSES SOCIETY IS LIABLE TO BE INCLUDED IN THE AC COUNTS OF ASSESSEE SOCIETY AND SUCH ACCOUNTS NEED TO BE AUDITED BY AN ACCOUNTANT. BUT IN THE PRESENT CASE NEITHER THE INCOME OF THE SCHOOLS HAS BEEN INCLUDED NOR SUCH ACCOUNTS OF THE ASSESSEE SOCIETY HAVE BEEN AUDITED. THE CIT-I AGR A REJECTED THE APPLICATION FILED BY THE ASSESSEE SOCIETY FOR THE RENEWAL OF GRANT O F APPROVAL UNDER SECTION 80G(5) OF THE ACT VIDE HER IMPUGNED ORDER DATED 18.09.2009 . THE ASSESSEE AGGRIEVED BY THE IMPUGNED ORDER FILED THE PRESENT APPEAL. 3. THE LD. COUNSEL FOR THE ASSESSEE FILED 2 PAPER B OOKS CONTAINING PAGE NOS.1 TO 48 IN WHICH HE HAS INCLUDED RENEWAL CERTIFICATE U/S 80G FOR ASSESSMENT YEAR 2005-06 TO 2008-09 CERTIFICATE OF REGISTRATION U/S 12A DATED 28.09.1994 LETTER DATED 16.09.2009 TO CIT LETTER DATED 14.09.2009 TO CIT LETTER DATED 15.05.2009 TO 4 ITO 3(4) APPLICATION FOR RENEWAL OF REGISTRATION U /S 80G AND COPY OF ITR 7 FILED ALONG WITH AUDIT REPORT IN FORM 10B AND AUDITED FIN ANCIAL STATEMENTS FOR ASSESSMENT YEAR 2006-07 2007-08 & 2008-09 AUDITED BALANCE SHEET & INCOME & EXPENSES ACCOUNT OF SHRI KANHAIYA PRABHU JUNIOR H IGH SCHOOL AND SHRI GOLULESH BAL MANDIR FOR YEAR 2006-07 2007-08 & 200 8-09 AND CERTIFICATE OF REGISTRATION OF SOCIETY ALONG WITH THE MEMORANDUM A ND RULES AND REGULATION OF THE SOCIETY. HE HAS ALSO FILED COPIES OF TWO DECISIONS RENDERED BY THE HONBLE HIGH COURT OF GUJARAT IN THE CASE OF ORPAT CHARITABLE TR UST VS. CIT REPORTED IN 256 ITR 690 (GUJ) AND N.N. DESAI CHARITABLE TRUST VS. CIT 246 ITR 452 (GUJ). HE SATED THAT KEEPING IN VIEW OF THE DOCUMENTARY EVIDENCES FILED BY HIM BEFORE THE AUTHORITIES BELOW AND BEFORE THIS BENCH THE ISSUE IN DISPUTE MAY KINDLY BE SET ASIDE TO THE LD. CIT-I AGRA TO DECIDE THE SAME AFR ESH UNDER THE LAW AFTER GIVING OPPORTUNITY TO THE ASSESSEE. 4. ON THE CONTRARY THE LD. DEPARTMENTAL REPRESENTA TIVE RELIED UPON THE IMPUGNED ORDER PASSED BY THE LD. CIT-I AGRA AND DI D NOT OPPOSE THE REQUEST OF THE ASSESSEES COUNSEL. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ELEVANT RECORDS AVAILABLE WITH US ESPECIALLY THE PAPER BOOKS FILED BY THE AS SESSEE WHICH IS IN TWO PARTS 5 FIRST PART CONTAINING PAGE NOS.1 TO 31 AND SECOND P ART CONTAINING PAGE NOS.32 TO 48. WE HAVE ALSO THOROUGHLY GONE THROUGH THE JUDGEMENT CITED BY THE LD. COUNSEL FOR THE ASSESSEE. AFTER PERUSING THE PAPER BOOKS FILED BY THE ASSESSEE ESPECIALLY PAGE NOS.32 TO 40 I.E. AUDITED BALANCE SHEET AND INCOME & EXPENDITURE ACCOUNT OF SHRI KANHAIYA PRABHU JUNIOR HIGH SCHOOL & SHRI GOKULESH BAL MANDIR FOR THE YEARS 2006-07 2007-08 & 2008-09 THE BENCH ASKED THE ASS ESSEE THAT WHETHER THE ASSESSEE HAS PREPARED THE AUDIT REPORT WHICH IS DAT ED 06.06.2011 RECENTLY I.E. DURING THE PENDENCY OF PRESENT APPEAL THE LD. COUN SEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAS PREPARED THE AUDIT REPORT DUR ING THE COURSE OF PENDENCY OF APPELLATE PROCEEDINGS BEFORE THIS BENCH. IT IS AN ADMITTED FACT THAT THE ASSESSEE HAS NOT GOT DONE THE ACCOUNTS OF SOCIETY AUDITED FOR TH E YEAR RELEVANT TO THE ASSESSMENT YEAR IN DISPUTE AND HE GOT AUDITED THE SAME DURING THE PENDENCY OF THE PRESENT APPEAL BEFORE THE TRIBUNAL. THEREFORE THE ASSESSE E SOCIETY HAS NOT FILED THE SAME BEFORE THE LD. CIT-I AGRA. IT IS ALSO ADMITTED FA CT THAT FOR CLAIMING THE DEDUCTION UNDER SECTION 80G OF THE ACT THE SOCIETY MUST FULF ILL THE PROVISIONS OF SECTION 11 & 12 WHERE THE INCOME HAS BEEN EXEMPTED. SINCE THE SOCIETY DOES NOT FULFILL THE CONDITIONS LAID DOWN UNDER SECTION 80G OF THE ACT THE LD. FIRST APPELLATE AUTHORITY HAS RIGHTLY REJECTED THE APPLICATION FOR RENEWAL OF GRANT OF APPROVAL UNDER SECTION 80G(5)(VI) BUT NOW THE ASSESSEE HAS FILED AN AUDITED BALANCE SHEET AND INCOME & EXPENDITURE ACCOUNT OF THE SCHOOLS ALO NG WITH VARIOUS OTHER 6 DOCUMENTARY EVIDENCES. KEEPING IN VIEW OF THE EVID ENCES PRODUCED BY THE ASSESSEE BEFORE THE LD. CIT-I AGRA AS WELL AS BEFO RE US WE ARE OF THE CONSIDERED OPINION THAT IN THE INTEREST OF JUSTICE THE REQUE ST OF THE ASSESSEE FOR SETTING ASIDE THE ISSUE UNDER DISPUTE TO THE CIT-I AGRA COULD BE ACCEPTED AND WE ACCEPT THE SAME. WE ARE NOT COMMENTING UPON THE MERIT OF THE CASE BUT KEEP OPEN TO THE LD. CIT-I AGRA TO GO THROUGH THE DOCUMENTARY EVIDENCES FILED BY THE ASSESSEE AT PAGE NOS.1 TO 48 OF THE PAPER BOOKS ESPECIALLY THE AUDI T REPORT AT PAGES NOS.32 TO 40 AND DECIDE THE ISSUE IN DISPUTE AFRESH UNDER THE LA W AFTER GIVING OPPORTUNITY TO THE ASSESSEE. 6. IN THE RESULT APPEAL FILED BY THE ASSESSEE IS A LLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 15.07.20 11). SD/- SD/- (P.K. BANSAL) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER PLACE: AGRA DATE: 15 TH JULY 2011 PBN/* 7 COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT BY ORDER 3. CIT CONCERNED 4. CIT (APPEALS) CONCERNED 5. DR ITAT AGRA BENCH AGRA 6. GUARD FILE ASSISTANT REGISTRAR INCOME-TAX APPELLATE TRIBUNAL AGRA TRUE COPY