SHREE ANDHERI VAGAD VISHA OSWAL CHOVISI MAHAJAN MEDICAL CENTRE, MUMBAI v. DIT(E), MUMBAI

ITA 5499/MUM/2013 | misc
Pronouncement Date: 31-07-2015 | Result: Allowed

Appeal Details

RSA Number 549919914 RSA 2013
Assessee PAN ODUCE2911T
Bench Mumbai
Appeal Number ITA 5499/MUM/2013
Duration Of Justice 1 year(s) 11 month(s) 11 day(s)
Appellant SHREE ANDHERI VAGAD VISHA OSWAL CHOVISI MAHAJAN MEDICAL CENTRE, MUMBAI
Respondent DIT(E), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 31-07-2015
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted E
Tribunal Order Date 31-07-2015
Date Of Final Hearing 15-06-2015
Next Hearing Date 15-06-2015
Assessment Year misc
Appeal Filed On 19-08-2013
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH E MUMBAI BEFORE A.D.JAIN JUDICIAL MEMBER AND SHRI RAJENDRA ACCOUNTANT MEMBER ITA NO.5499/MUM/2013 ASSESSMENT YEAR: 2009-10 SHREE ANDHERI VAGAD VISHA OSWAL CHOVISI MAHAJAN JAIN MEDICAL CENTRE FLAT NO.A-101/102 SONAL CLASSIC CHS LTD. BHARDAWADI PATH ANDHERI (W) MUMBAI-400059 VS. DIT (E ) PIRAMAL CHAMBERS MUMBAI-20 (APPELLANT) (RESPON DENT) ASSESSEE BY : SHRI A.D.CHHEDA REVENUE BY : SHRI MANJUNATHA SWAMY DATE OF HEARING : 23 .07.2015 DATE OF PRONOUNCEMENT : 31 .07 .2015 O R D E R PER A.D.JAIN JM: THE PRESENT APPEAL IS DIRECTED AGAINST THE ORDER O F DIRECTOR OF INCOME-TAX (EXEMPTIONS) MUMBAI [FOR SHORT THE DIT (E)] DATED 31.07.2013 U/S. 12AA(1)(B)(II) OF THE INCOME-TAX AC T ON THE FOLLOWING GROUNDS: 1) THE LEARNED DIT(E) HAS ERRED IN LAW & IN FACTS T O REJECT APPLICATION U/S 12AA FOR REGISTRATION OF PUBLIC TRUST. 2) THE LEARNED DIT(E) HAS ERRED IN LAW & IN FACTS I N NOT FOLLOWING THE JURISDICTION HIGH COURT JUDGMENT OF CIT VS. AGRICUL TURE PRODUCE 2911TR 419 FOLLOWED IN GRAMEEN INITIATIVE FOR WOMEN VS. DI T(E) WHICH HELD THAT ITA NO. 5499/MUM/2013 2 IT IS NOT NECESSARY TO HAVE REGISTRATION WITH CHARI TY COMMISSIONER AS A TRUST AND FOLLOWING ABOVE RATIO COMPLIANCE WITH BOM BAY PUBLIC TRUST ACT MAY NOT BE GROUND FOR REJECTION OF APPLICATION U/S 12AA. 3) THE LEARNED DIT(E) HAS ERRED IN LAW & IN FACTS I N NOT FOLLOWING JUDGMENT OF DY.DIT VS. GKR CHARITIES OF HON. MUMBAI ITAT(ITA NO.8210/MUM/2010.) 4) THE LEARNED DIT(E) HAS ERRED IN LAW & IN FACTS I N NOT CONSIDERING JUDGMENT OF DREAMLAND EDUCATION TRUST VS. SOCIETY A MRITSAR ITAT 109 TTJ 850 WHICH HELD NOT TO CONSIDER EXTRANEOUS FACTO RS FOR REJECTION OF APPLICATION U/S 12AA. 5) THE LEARNED DIT(E) HAS ERRED IN LAW & IN FACTS T O HELD THAT NOT OBTAINING PERMISSION OF CHARITY COMMISSIONER AMOUNT S TO DOUBTFUL OF GENUINENESS OF OBJECTS & ACTIVITY OF TRUST AND ALSO ERRED ON THAT BASIS FOR REJECTION OF REGISTRATION. 6) THE LEARNED DIT(E) HAS ERRED BY NOT ALLOWING REA SONABLE OPPORTUNITY OF HEARING FOR REJECTION OF APPLICATION. 7) YOUR APPLICANT PRAYS THAT DIT(E) MAY BE DIRECTED TO GRANT REGISTRATION U/S 12AA. 8) THE APPELLANT LEAVES THE RIGHT TO AMEND ADD OR ALTER THE GROUNDS AT THE TIME-OF REGULAR HEARING. 2. THE FACTS OF THE CASE OF THE ASSESSEE ARE THAT A N APPLICATION FOR REGISTRATION U/S. 12AA OF INCOME-TAX ACT WAS FILED AS THE TRUST WAS CONSTITUTED AND REGISTERED WITH THE CHARITY COMMISS IONER VIDE REGISTRATION NO. E-29350(MUMBAI) DATED 16.01.2013. A NOTICE DAT ED 10.04.2013 WAS ISSUED TO THE ASSESSEE REQUIRING THE APPLICANT/APPE LLANT TO FURNISH CERTAIN DETAILS/DOCUMENTS LIKE PAN CARD DETAILS OF THE TRU STEE BANK ACCOUNT NOC IN RESPECT OF OFFICE PREMISES CERTIFICATE OF R EGISTRATION ISSUED BY THE CHARITY COMMISSIONER AND AUDITED ACCOUNT AND THE AC TIVITIES UNDERTAKEN BY THE TRUST WITH DOCUMENTARY EVIDENCE. THE REPRESE NTATIVE OF THE ITA NO. 5499/MUM/2013 3 ASSESSEE ATTENDED THE OFFICE OF THE DIT(E) AND SUBM ITTED THE DETAILS VIDE THEIR LETTERS DATED 12.06.2013 AND 24.06.2013. HOWE VER THE DIT(E) WHILE REJECTING THE APPLICATION OF ASSESSEE HAS TAKEN THE GROUND AT THE ASSESSEE TRUST HAS NOT COMPLIED WITH SECTION 36(A)(3) OF THE BOMBAY PUBLIC TRUST ACT AND THAT THE COMPLIANCE IS NECESSARY FOR REGIST RATION OF THE TRUST BY CHARITY COMMISSIONER AND FOR THE PURPOSE OF REGISTR ATION OF TRUST U/S. 12AA OF INCOME-TAX ACT AND NON-COMPLIANCE WITH THE LOCAL ACT GOVERNING THE TRUST IS IN VIOLATION OF PUBLIC POLICY AND THE GENUINENESS OF THE OBJECT AND THE ACTIVITIES OF THE TRUST ITSELF WERE DOUBTFU L. 3. THE PROVISIONS OF SECTION 12AA OF THE ACT ARE RE PRODUCED BELOW: 12AA. (1) THE COMMISSIONER ON RECEIPT OF AN APPLIC ATION FOR REGISTRATION OF A TRUST OR INSTITUTION MADE UNDER CLAUSE (A) [FOR CLAUSE (A A) OF SUB-SECTION (1)] OF SECTION 12A SHALL - (A) CALL FOR SUCH DOCUMENTS OR INFORMATION FROM THE TRU ST OR INSTITUTION AS HE THINKS NECESSARY IN ORDER TO SATISFY HIMSELF ABOUT THE GENUINENESS OF ACTIVITIES OF THE TRUST OR INSTITUTION AND MAY ALSO MADE SUCH INQUIRIES AS HE MAY DEEM NECESSARY IN THIS BEHALF; AND (B) AFTER SATISFYING HIMSELF ABOUT THE OBJECTS OF THE T RUST OR INSTITUTION AND THE GENUINENESS OF ITS ACTIVITIES HE (I) SHALL PASS AN ORDER IN WRITING REGISTERING THE TRUS T OR INSTITUTION; (II) SHALL IF HE IS NOT SO SATISFIED PASS AN ORDER IN WRITING REFUSING TO REGISTER THE TRUST OR INSTITUTION AND A COPY OF SUCH ORDER SHALL BE SENT TO THE APPLI CANT. 4. WE HAVE HEARD THE PARTIES AND HAVE PERUSED THE M ATERIAL AVAILABLE ON RECORD. THE LD. COUNSEL FOR THE ASSESSEE RELIED ON THE FOLLOWING JUDGMENTS: (1) DDI VS. M/S GKR CHARITIES (2) M/S ORGANISATION FOR AUTISTIC INDIVIDUALS VS. DIT(E) (3) DREAM LAND EDUCATIONAL TRUST VS. CIT( 109 TTJ A SR 850) (4) SHANTA EDUCATION ITA NO. 5499/MUM/2013 4 ACADEMY VS. CIT-I 47 TAXMANN.COM 231. (5) SAINT KA BIR EDUCATIONAL TRUST VS. CIT (41 DTR 267) (6) SHRI GAIN GANGA VOCATIONAL VS. ASSESSE E ITA NOS. 5706 & 5707/DEL/2012 (7) CIT VS. RED ROSE SCHOOL 163 TAXMAN 19(ALL.) (8) APMC VS. CIT 100 ITD 1 NAGPUR (9) CIT VS. AGRICULTURAL PRODUCE AND MARKET 210 CTR BOM 386 (10) KUL FOUNDATION VS. CIT-1 PUNE [2015] 54 TAXMANN.COM 143 (11) SOHAM FO R KIDS EDUCATION VS. DIT(E) 49 TAXMAN.COM 493 DELHI ITAT (12) GRAMIN INITIATIVE FO R WOMEN VS. DIT(E) (ITA NO. 1937/M/2009) (13) PREMIUM INVESTMENT VS. DCIT 3(2) 4879/M/2012 (14) MANOCKJEE COWASJEE VS. DIT(E) & (15) CIT VS. VARANASI WELFAR E TRUST. 5. THE LD. DR RELIED ON THE IMPUGNED ORDER. 6. WE HAVE CONSIDERED THE JUDGMENTS CITED BY THE LD. REPRESENTATIVE. THE RECOURSE TAKEN BY THE LD. CIT IS NOT CORRECT A S THE LANGUAGE OF SECTION 12AA OF THE ACT NOWHERE PROVIDES THAT WHILE GRANTIN G REGISTRATION THE DIT(E) IS REQUIRED TO GO INTO THE COMPLIANCE OR OTH ERWISE OF THE PROVISIONS OF THE BOMBAY PUBLIC TRUST ACT 1950. HENCE THE ORD ER OF DIT(E) IS PATENTLY ILLEGAL U/S. 12AA THE CIT(A) IS ONLY EMPO WERED TO SATISFY HIMSELF ABOUT THE OBJECTS OF THE TRUST AND THE GENUINENESS O F ITS ACTIVITIES. ONCE THE CIT(A) HAS NOT DOUBTED EITHER THE GENUINENESS O F THE ACTIVITIES OF THE ASSESSEE OR ITS OBJECTS HIS POWER U/S. 12AA ENDS. I N ACHARYA SEWA NIWAS UTTARANCHAL V. CIT (2006) 105 TTJ (DEL) 761 IT W AS HELD THAT UNDER SECTION 12AA THE JURISDICTION OF THE CIT IS CONFINE D TO SATISFYING HIMSELF ABOUT THE OBJECTS OF THE TRUST AND THE GENUINENESS OF ITS ACTIVITIES; THAT WHERE THE CIT HAD NOT TAKEN ANY OBJECTION TO THE CH ARITABLE NATURE OF THE TRUST THE REASONS GIVEN BY THE CIT FOR REFUSAL TO GRANT REGISTRATION WERE EXTRANEOUS TO SECTION 12AA; AND THAT THEREFORE THE REGISTRATION WAS TO BE ITA NO. 5499/MUM/2013 5 ALLOWED TO THE ASSESSEE TRUST. NO DECISION TO THE C ONTRARY HAS BEEN BROUGHT TO OUR NOTICE. 7. IN. VIEW OF THE ABOVE WE HOLD THAT THERE WAS NO JUSTIFICATION FOR REFUSING REGISTRATION U/S. 12AA OF THE ACT TO THE A SSESSEE WHICH IS ACCORDINGLY ALLOWED TO THE ASSESSEE AND THE ORDER O F THE DIT(EXEMPTIONS) IS REVERSED AND THE GRIEVANCE OF THE ASSESSEE IS AC CEPTED. 8. AS A RESULT APPEAL FILED BY THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 3 RD DAY OF JULY 2015. SD/- SD/- (RAJENDRA) (A.D.JAIN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI DATED: 03.07.2015 SHARWAN P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT CONCERNED MUMBAI THE CIT(A) CONCERNED MUMBAI THE DR E BENCH // TRUE COPY// BY ORDER DY/ASSTT. REGISTRAR ITAT MUMBAI.