Shia Dawoodi Bohra Jamat Madarsa Mohmmediyeh, Mandsaur v. The CIT,

ITA 57/IND/2009 | misc
Pronouncement Date: 30-04-2010 | Result: Allowed

Appeal Details

RSA Number 5722714 RSA 2009
Assessee PAN AAHTS0813Q
Bench Indore
Appeal Number ITA 57/IND/2009
Duration Of Justice 1 year(s) 2 month(s) 12 day(s)
Appellant Shia Dawoodi Bohra Jamat Madarsa Mohmmediyeh, Mandsaur
Respondent The CIT,
Appeal Type Income Tax Appeal
Pronouncement Date 30-04-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 30-04-2010
Date Of Final Hearing 26-04-2010
Next Hearing Date 26-04-2010
Assessment Year misc
Appeal Filed On 16-02-2009
Judgment Text
PAGE 1 OF 5 - IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH : INDORE BEFORE SHRI JOGINDER SINGH JUDICIAL MEMBER AND SHRI V.K. GUPTA ACCOUNTANT MEMBER PAN NO. : AAHTS0813Q I.T.A.NO.57/IND/2009 U/S 12A/12AA/254 SHIA DAWOODI BOHRA JAMAT CIT MADARSA MOHAMMADIAH VS UJJAIN MOHAMMADI MARG DAULATGANJ MANDSAUR DIST. MANDAUR APPELLANT RESPONDENT PAN NO. : AAHTS0816M I.T.A.NO.58/IND/2009 U/S 12A/12AA/254 SHIA DAWOODI BOHRA JAMAT CIT MADARSA MOHAMMEDIYAH VS UJJAIN RAMPURA DISTRICT NEEMUCH APPELLANT RESPONDENT PAN NO. : AAHTS0815J I.T.A.NO.63/IND/2009 U/S 12A/12AA/254 SHIA DAWOODI BOHRA JAMAT CIT SAIFIYAH SCHOOL BOHRA MASJID BOHRA BAKHAL RATANGARH VS UJJAIN PAGE 2 OF 5 - DIST. NEEMUCH APPELLANT RESPONDENT APPELLANT BY : SHRI MANUBHAI PATEL RESPONDENT BY : SHRI RAJEEV VASHNEY DATE OF HEARING : 26.4.2010 O R D E R PER V.K. GUPTA A.M. THIS APPEAL FILED BY THE ASSESSEE ARISES OUT OF ORD ER OF THE LD. CIT(A) UJJAIN DATED 27.02.2007 FOR THE ASSESSME NT YEAR 2001-02. 2. WE HAVE HEARD BOTH THE PARTIES AND HAVE ALSO PERUSE D THE MATERIAL AVAILABLE ON RECORD. 3. FIRST WE SHALL TAKE UP ASSESSEES APPEAL IN I.T.A. NO. 57/IND/2009 WHEREIN THE ISSUE OF ELIGIBILITY OF AS SESSEE FOR REGISTRATION U/S 12-A/12AA IS INVOLVED. 4. THE LEARNED COUNSEL SUBMITTED THAT IN THIS APPEAL MAINLY THE ISSUE INVOLVED WAS REGARDING EXISTENCE OF WAKF BEFO RE 1.4.1961 IN VIEW OF SPLITTING OF MAIN WAKF INTO SCHOOL WAKF WAS INVO LVED. IT WAS FURTHER POINTED OUT HAT IF THE CLAIM OF EXISTENCE OF THE AS SESSEE BEFORE 1.4.1961 WAS PROVED THEN OTHER ISSUES WOULD NOT BE RELEVANT . THE LEARNED COUNSEL FURTHER SUBMITTED THAT WHEN THE LD. CIT DECIDED THI S ISSUE AGAINST THE ASSESSEE WHEN THE DECISION OF THE TRIBUNAL IN THE C ASE OF MAJAR SYEDY PAGE 3 OF 5 - YUSUFI SAHEB IN I.T.A.NO. 698/IND/2007 AND 699/IND/ 2008 ORDER DATED 24.10.2008 WAS NOT BEFORE HIM. HENCE IN THE IDENTI CAL FACTS THE ISSUE NOW STOOD COVERED IN FAVOUR OF THE ASSESSEE. THE LD . CIT DR AT THIS STAGE SUBMITTED THAT THE ISSUE WHETHER FACTS WERE IDENTICAL OR NOT HAD TO BE LOOKED INTO. HENCE IN THE INTERESTS OF REVENUE THE MATTER COULD BE RESTORED TO THE FILE OF CIT TO DECIDE THIS MATTER A FTER TAKING INTO CONSIDERATION THE SAID DECISIONS OF THE TRIBUNAL. A CCORDINGLY WE RESTORE THIS ISSUE TO THE FILE OF THE LD. CIT FOR RE-ADJUDI CATION THEREOF AFRESH AFTER TAKING INTO CONSIDERATION THE SAID DECISION OF THE TRIBUNAL AND THE ASSESSEE WOULD ALSO BE AT LIBERTY TO RELY ON OTHER JUDICIAL DECISIONS IN THE CASE OF NECESSITY. THUS ALL THE GROUNDS RAISED IN THIS APPEAL ARE RESTORED TO THE FILE OF LD. CIT. 5. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE STA NDS ALLOWED FOR STATISTICAL PURPOSES. 6. NOW WE SHALL TAKE UP ASSESSEES APPEALS IN I.T.A.N O. 58/IND/2009 AND 63/IND/2009. IN BOTH THESE APPEALS THE ISSUES INVOLVED ARE REGARDING EXISTENCE OF WAQF BEFORE 1.4.1961 I NCOME AND PROPERTIES WERE NOT USED FOR THE OBJECT OF TRUST. THE LEARNED COUNSEL FURTHER SUBMITTED THAT IF THE EXISTENCE OF WAQF BEFORE 1.4. 1961 WAS PROVED THEN THERE WAS NO QUESTION OF APPLICABILITY OF PROVISION S OF SECTION 13(1)(B) OF PAGE 4 OF 5 - THE ACT. THE LEARNED COUNSEL HAS RELIED ON FILING J UDICIAL DECISIONS IN RESPECT OF ITS VARIOUS CONTENTIONS :- (I) DAWOODI BOHRA JAMAT VS. CIT 317 ITR 133 (AT) (INDORE.) (II) MAHARASHTRA ACADEMY OF ENGI AND EDUCATIONAL RESEARCH VS. CIT (3 TAXMAN 35) ( PUNE) (III) CIT VS. BARKATRE SAIFIYAH SOCIETY 213 ITR 492. (IV) CIT VS. CHANDRA CHARITABLE TRUST 294 ITR 876 (GUJ ) (V) CIT VS. SHRI DIGAMBER JAIN MANDIR 189 TAXMAN 106 (RAJ). 7. THE LEARNED COUNSEL ALSO REFERRED TO PAGE 45 OF THE PAPER BOOK IN THE CASE OF SHIA DAWOODI BOHRA JAMAT MADARS A MOHAMMADIYA RAMPUR NEEMUCH IN I.T.A.NO. 58/IND/2009 AND AT PAG E 38 OF THE PAPER BOOK IN I.T.A.NO. 63/IND/2009 TO SHOW THAT EXISTENC E OF THE WAQF EXISTED BEFORE 1.4.1961. THE LEARNED COUNSEL ALSO SUBMITTED THAT IN REGARD TO PANCHAYAT CERTIFICATE AND AFFIDAVITS WERE ALSO FILE D TO SUBSTANTIATE SUCH CLAIM. THE LD. CIT DR HOWEVER CONTENDED THAT THE ASSESSEE FAILED TO GIVE SPECIFIC DOCUMENTARY EVIDENCES TO PROVE THE EX ISTENCE OF WAQF BEFORE 1.4.1961. HENCE THE LD. CIT RIGHTLY REJECTE D THE APPLICATION OF THE ASSESSEE TRUST FOR REGISTRATION U/S 12A. THE LEARNE D COUNSEL AT THIS STAGE DREW OUR ATTENTION TO COLUMN NO.16 AT PAGE NO.45 W HEREIN IT WAS MENTIONED THAT APPLICATION FOR REGISTRATION OF WAQF WITH WAQF BOARD HAD PAGE 5 OF 5 - BEEN MADE IN 1960. ON A QUERY FROM THE BENCH THE L EARNED COUNSEL HOWEVER ACCEPTED THAT THIS FACT WAS NOT BROUGHT TO THE NOTICE OF LD. CIT. 8. WE HAVE CONSIDERED THE SUBMISSIONS MADE BY BOTH THE SIDES MATERIAL ON RECORD AND THE ORDERS OF THE AUTHORITIE S BELOW. IN OUR OPINION THESE APPEALS ARE ALSO REQUIRED TO BE RESTORED TO T HE FILE OF LD. CIT FOR DECIDING THE ISSUE AFRESH AS PER LAW AFTER TAKING I NTO CONSIDERATION THE DOCUMENTARY EVIDENCES AND VARIOUS FACTS MENTIONED B Y THE ASSESSEE BEFORE US AND THE AFORESAID JUDICIAL DECISIONS REL IED ON BY THE ASSESSEE . ACCORDINGLY BOTH THESE APPEALS OF THE ASSESSEE ARE RESTORED TO THE FILE OF LD. CIT WHO SHALL DECIDE THE SAME AS EXPEDITIOUSLY AS POSSIBLE AFTER AFFORDING DUE OPPORTUNITY TO THE ASSESSEE. IN THE R ESULT THESE APPEALS OF THE ASSESSEE ARE ALSO RESTORED TO THE FILE OF LD. CIT. 9. TO SUM UP ALL THESE APPEALS ARE ALLOWED FOR STATIS TICAL PURPOSES. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 30 TH APRIL 2010. SD/- SD/- (JOGINDER SINGH) (V. K. GUPTA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 30 TH APRIL 2010. CPU* 26284