MAHYCFO RESEARCH FOUNDATION ( NOW BANWALE FOUNDATION), MUMBAI v. DIT (E), MUMBAI

ITA 5392/MUM/2009 | misc
Pronouncement Date: 22-07-2011 | Result: Allowed

Appeal Details

RSA Number 539219914 RSA 2009
Bench Mumbai
Appeal Number ITA 5392/MUM/2009
Duration Of Justice 1 year(s) 9 month(s) 27 day(s)
Appellant MAHYCFO RESEARCH FOUNDATION ( NOW BANWALE FOUNDATION), MUMBAI
Respondent DIT (E), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 22-07-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted B
Tribunal Order Date 22-07-2011
Date Of Final Hearing 14-07-2011
Next Hearing Date 14-07-2011
Assessment Year misc
Appeal Filed On 25-09-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH B MUMBAI BEFORE SHRI R.S. SYAL A.M. AND SHRI V. DURGA RAO J.M. ITA NO. 5392/MUM/2009 MAHYCO RESEARCH FOUNDATION . APPELLANT BARWALE FOUNDATION 19 RAJ MAHAL84 VEER NARIMAN ROAD MUMBAI 400 020. (PAN AAA CM 3561) VS. THE DIRECTOR OF INCOME TAX(EXEMPTION( RESPONDENT 6 TH FLOOR PIRAMAL CHAMBERS LALBAUG MUMBAI 400 020. APPELLANT BY : MR. HIRO RAI RESPONDENT BY : MR. P.C. MAURYA ORDER PER V. DURGA RAO J.M.: THE ASSESSEE IS A TRUST REGISTERED U/S 12A OF THE ACT WHICH WAS GRANTED BY DIT(E) MUMBAI VIDE ORDER DATED 14/0 5/1987 ON THE BASIS OF MOU DTD. 21/01/1987. SUBSEQUENTLY THE ASS ESSEE MADE A RESOLUTION DATED 30/09/05 STATING THAT THERE IS AN AMENDMENT IN THE OBJECT NO. 1 2 3(A) 3(C) AND ADDED TWO NEW OBJECTS NO. 3(F) AND 3(G) OF MOU DT. 21/11/2005. THE SAID CHANGE/AMENDMENT WAS N OT COMMUNICATED TO THE DIT(E) MUMBAI. THE DIT(E) MU MBAI CANCELLED THE REGISTRATION WHICH WAS GRANTED U/S 12A OF THE ACT ON THE GROUND THAT AS PER THE FORM NO. 10A IT IS THE DUTY OF THE ASSESSEE TO INFORM THE CONCERNED AUTHORITY IF ANY AMENDMENT MADE OR CHANGES IN THE TERMS AND CONDITIONS OF THE TRUST. AGAINST THE ORDE R OF DIT(E) THE ASSESSEE FILED AN APPLICATION. 2. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THERE WERE SOME CHANGES IN THE OBJECT BUT THE OBJECT IS NOT AT ALL AFFECTED. IN ITA NO. 5392/M/2009 MAHYCO RESEARCH FOUNDATION 2 FACT THE CHANGES WERE COMMUNICATED TO THE DIT(E) W HILE FILING THE FORM NO. 3CF(3). THE LEARNED COUNSEL FOR THE ASSESS EE SUBMITTED THAT DIT(E) PASSED CANCELLATION ORDER WITHOUT CONSIDERIN G THE SECTION 12AA(3) OF THE ACT AND NO OPPORTUNITY OF HEARING W AS GIVEN TO THE ASSESSEE. 3. ON THE OTHER HAND THE LEARNED DR SUBMITTED THAT IT IS THE BOUNDEN DUTY OF THE ASSESSEE TO INTIMATE THE CHANGE S MADE IN MOU AND SINCE THE ASSESSEE FAILED TO INTIMATE THE CHANG ES MADE IN MOU THE DIT(E) HAS RIGHTLY CANCELLED THE REGISTRATION. 4. WE HAVE HEARD THE BOTH THE SIDES AND PERUSED THE RELEVANT MATERIAL ON RECORD. WE FIND THAT THE REGISTRATION G RANTED BY THE DIT(E) U/S 12A OF THE ACT HAS BEEN SUBSEQUENTLY CANCELLED ON THE GROUND THAT THE CHANGES/AMENDMENTS MADE BY THE ASSESSEE IN ITS MOU WERE NOT INTIMATED TO HIM. IT IS ARGUED THROUGH GROUND NO. 3 BEFORE US THAT THE LD. DIT(E) TOOK NOTE OF FACTS AGAINST THE ASSESSEE AS WELL AS THE LEGAL POSITION WITHOUT GRANTING ANY OPPORTUNITY OF HEARING. IT IS ALSO NOTED FROM THE IMPUGNED ORDERS THAT THERE IS N O REFERENCE OF REQUIRING THE ASSESSEE TO OBTAIN THE POSITION ON TH E POINTS CONSIDERED BY HIM AGAINST THE ASSESSEE. AS PER SECTION 12AA(3) OF THE ACT IT IS THE BOUNDEN DUTY OF THE CONCERNED AUTHORITY THAT BE FORE PASSING ANY ORDER AN OPPORTUNITY OF HEARING SHALL BE GIVEN TO T HE ASSESSEE. IN THIS CASE NO SUCH OPPORTUNITY HAS BEEN GIVEN THEREFORE THE ORDER PASSED BY THE DIT(E) IS CONTRARY TO THE PRINCIPLES OF NATU RAL JUSTICE. WE ACCORDINGLY SET ASIDE THE ORDER PASSED BY THE DIT( E) AND DIRECT HIM TO PASS A FRESH ORDER IN ACCORDANCE WITH LAW AFTER PROVIDING AN OPPORTUNITY OF HEARING TO THE ASSESSEE IN THE MATTE R. ITA NO. 5392/M/2009 MAHYCO RESEARCH FOUNDATION 3 5. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED AS INDICATED ABOVE. PRONOUNCED IN THE OPEN COURT ON THIS 22 ND DAY OF JULY 2011. SD/- SD/- (R.S. SYAL) (V. D URGA RAO) ACCOUNTANT MEMBER JUDI CIAL MEMBER MUMBAI DATED: 22 ND JULY 2011 KV COPY TO:- 1) THE APPELLANT. 2) THE RESPONDENT. 3) THE CIT (A) CONCERNED. 4) THE CIT CONCERNED. 5) THE DEPARTMENTAL REPRESENTATIVE B BENCH I.T .A.T. MUMBAI. BY ORDER //TRUE COPY// ASST. REGISTRAR I.T.A.T. MUMBAI.