Shri Ramkrishna Vivekanand, Kolhapur v. ITO (Tech-II), Kolhapur

ITA 971/PUN/2012 | misc
Pronouncement Date: 25-07-2013 | Result: Allowed

Appeal Details

RSA Number 97124514 RSA 2012
Assessee PAN AABTS7792N
Bench Pune
Appeal Number ITA 971/PUN/2012
Duration Of Justice 1 year(s) 2 month(s) 9 day(s)
Appellant Shri Ramkrishna Vivekanand, Kolhapur
Respondent ITO (Tech-II), Kolhapur
Appeal Type Income Tax Appeal
Pronouncement Date 25-07-2013
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 25-07-2013
Assessment Year misc
Appeal Filed On 16-05-2012
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV JUDICIAL MEMBER AND SHRI R.K. PANDA ACCOUNTANT MEMBER ITA NO. 970 AND 971/PN/2012 SHRI RAMAKRISHNA VIVEKANAND SEVA KENDRA BHADOLE TAL : HATKANANGALE DIST :KOLHAPUR. .. APPELLANT PAN NO. AABTS 7792N VS. ITO (TECH-II) AAYAKAR BHAVAN 31 C/2 TARABAI PARK KOLHAPUR .. RESPONDENT ASSESSEE BY : SHRI M.K. KULKARNI REVENUE BY : SMT. M.N. VERMA DATE OF HEARING : 24-07-2013 DATE OF PRONOUNCEMENT : 25-07-2013 ORDER PER R.K. PANDA AM : THE ABOVE 2 APPEALS FILED BY THE ASSESSEE ARE DIRE CTED AGAINST THE SEPARATE ORDERS DATED 16-03-2012 OF THE CIT-II KOL HAPUR REFUSING TO GRANT REGISTRATION U/S.12AA AS A CHARITABLE INSTITU TION AND CANCELLING THE REGISTRATION GRANTED EARLIER ON 06-09-1993 U/S.12AA OF THE INCOME TAX ACT AND THEREBY WITHDRAWING APPROVAL GRANTED EARLIE R U/S.80G(5)(VI) OF THE INCOME TAX ACT. 2. AFTER HEARING BOTH THE SIDES WE FIND THE ASSESSE E SOCIETY NAMELY SRI RAMAKRISHNA VIVEKANAND SEVA KENDRA WAS GRANTED REGISTRATION U/S.12AA ON 06-09-1993 VIDE NO. S-892/45/1993-94 BY THE THEN CIT KOLHAPUR. SUBSEQUENTLY THE LD.CIT NOTED THAT MOST OF THE OBJECTS OF THE ASSESSEE SOCIETY ARE PURELY RELIGIOUS IN NATURE AND THE ASSESSEE HAS SPENT CERTAIN AMOUNTS TOWARDS RELIGIOUS ACTIVITIES WHICH IS IN EXCESS OF 5% OF 2 THE TOTAL RECEIPTS. THEREFORE ACCORDING TO THE LD . CIT ASSESSEE SOCIETY HAS VIOLATED THE PROVISIONS OF SECTION 80G(5B) OF T HE INCOME TAX ACT. HE THEREFORE ISSUED NOTICE TO THE ASSESSEE SOCIET Y TO EXPLAIN AS TO WHY THE REGISTRATION GRANTED EARLIER U/S.12AA AS A CHAR ITABLE INSTITUTION/TRUST SHOULD NOT BE CANCELLED. IN ABSENCE OF ANY EXPLANA TION TO OFFER FOR THE PROPOSED ACTION OF CANCELLATION OF REGISTRATION GRA NTED U/S.12AA OF THE I.T. ACT THE LD. CIT CANCELLED THE REGISTRATION GRA NTED EARLIER. SINCE HE CANCELLED THE REGISTRATION GRANTED EARLIER U/S.12AA OF THE I.T. ACT HE HELD THAT THE ASSESSEE SOCIETY IS NOT ELIGIBLE FOR CONTI NUATION OF APPROVAL U/S. 80G(5)(VI) OF THE I.T. ACT 1961. HE THEREFORE W ITHDREW THE APPROVAL GRANTED EARLIER U/S. 80G(5)(VI) ON 29-10-2010. 3. AGGRIEVED WITH SUCH ORDER OF THE CIT THE ASSESSE E IS IN APPEAL BEFORE US WITH THE FOLLOWING GROUNDS : GROUNDS IN ITA NO.970/PN/2012 : 1) WHETHER ON THE FACTS AND CIRCUMSTANCES OF TH E CASE AND IN LAW THE LD. CIT-II KOLHAPUR HAD JURISDICTION TO WITHDR AW THE APPROVAL GRANTED TO THE TRUST UNDER S. 80G(V) OF TH E ACT WITHOUT AFFORDING ANY OPPORTUNITY OF HEARING AND TH EREFORE THE ORDER WITHDRAWING APPROVAL DT. 16-3-2012 BEING VIOLATIVE OF FUNDAMENTAL PRINCIPLES OF NATURAL JUSTICE NOT SU STAINABLE IN LAW? 2) WHETHER ON THE FACTS AND CIRCUMSTANCES OF TH E CASE AND IN LAW WHEN IT BECOMES CRYSTAL CLEAR THAT NO OPPORTUNITY A S EXPECTED IN LAW WAS AFFORDED WHEN THE SHOW CAUSE NOTICE MENT IONS THAT 'AN ORDER WITHDRAWING APPROVAL GRANTED UNDER S. 80G (5)(VI) WILL BE PASSED ANY TIME THEREAFTER WITHOUT GIVING FURTHER OPPORTUNITY AND WITHOUT RECORDING A FINDING THAT SH OW-CAUSE NOTICE DT. 13-1-2012 WAS EVER SERVED? 3) WHETHER ON THE FACTS AND CIRCUMSTANCES OF TH E CASE AND IN LAW IT IS THEREFORE PRAYED THAT THE APPROVAL GRANTED U/S 80G(5) BE RESTORED TO THE ASSESSEE-TRUST WHICH HAS BEEN SO WI THDRAWN WITHOUT FOLLOWING THE PROVISIONS OF LAW? 3 GROUNDS IN ITA NO.971/PN/2012 : 1) WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. C.I.T. - II KOLHAPUR WAS JUSTIFIED IN CANCELING/ WITHDRAWING THE REGISTRATION GRANTED TO THE ASSESSE E-TRUST UNDER S. 12-A OF THE ACT ON 06-09-1993 RESORTING TO PROVI SIONS OF S. 12- AA (3) INSERTED IN THE ACT WEF. 01-10-2004 BEING PR OSPECTIVE IN NATURE APPLY ONLY TO REGISTRATIONS GRANTED PRIOR TO 01-10-2004 ? 2) WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE C ASE AND IN LAW AND IN VIEW OF GROUND NO. 1 ABOVE THE REGISTRAT ION CANCELLED/ WITHDRAWN BY LD. C.I.T. -II KOLHAPUR WHEN LD. C.I. T. -II KOLHAPUR HAD NO JURISDICTION VESTED IN HER TO CANCE L REGISTRATION IN THE ABSENCE OF ANY PROVISIONS FOR CANCELLATION T HE ORDER OF CANCELLATION PASSED DT.31-03-2012 IS AB-INITIO VOID ILLEGAL AND WITHOUT JURISDICTION ? 3) WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE C ASE AND IN LAW THE ORDER OF CANCELLATION OF REGISTRATION GRANT ED U/S.12-A TANTAMOUNTS TO REVIEW OF THE ORDER BY LD. C.I.T. -I I KOLHAPUR WHICH IS IMPERMISSIBLE IN LAW ? 4. THE LD. COUNSEL FOR THE ASSESSEE AT THE OUTSET S UBMITTED THAT NO PROPER OPPORTUNITY WAS GRANTED TO THE ASSESSEE FOR WHICH THE ASSESSEE COULD NOT SUBMIT THE REQUISITE DETAILS BEFORE THE L D.CIT. THEREFORE IN THE INTEREST OF JUSTICE THE MATTER SHOULD BE RESTOR ED TO THE FILE OF THE CIT FOR FRESH ADJUDICATION. 5. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHER HAND WHILE SUPPORTING THE ORDER OF THE LD.CIT SUBMITTED THAT T HE ASSESSEE WAS GIVEN AN OPPORTUNITY VIDE LETTER DATED 11-01-2012 TO SUBM IT THE REQUISITE DETAILS BY 21-01-2012. THE ASSESSEE VIDE LETTER DA TED 20-01-2012 REQUESTED FURTHER TIME OF 15 DAYS WHICH WAS GRANTED UPTO 06-02-2012. HOWEVER THERE WAS NO COMPLIANCE FROM THE SIDE OF T HE ASSESSEE. THEREFORE THE ORDER OF THE LD. CIT BEING JUSTIFIED SHOULD BE UPHELD. 4 6. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES AND PERUSED THE ORDERS OF THE LD.CIT. THERE IS NO DISPUTE TO THE FACT THAT ON BEING DIRECTED BY THE CIT TO FILE ITS EXPLANATIO N FOR NOT CANCELLING THE REGISTRATION GRANTED EARLIER U/S.12AA/80G THE ASSES SEE SOUGHT TIME WHICH WAS GRANTED UPTO 06-02-2012. HOWEVER THEREA FTER THERE WAS NO COMPLIANCE BY THE ASSESSEE FOR WHICH THE LD.CIT HAS TO PASS AN EXPARTE ORDER CANCELLING THE REGISTRATION GRANTED EARLIER A ND WITHDRAWING THE APPROVAL GRANTED EARLIER U/S.80G(5)(VI). CONSIDERI NG THE TOTALITY OF THE FACTS OF THE CASE AND IN THE INTEREST OF JUSTICE W E DEEM IT PROPER TO RESTORE THE ISSUE TO THE FILE OF THE LD.CIT WITH A DIRECTION TO GIVE ONE MORE OPPORTUNITY TO THE ASSESSEE TO SUBMIT ITS EXPL ANATION IF ANY AND DECIDE THE ISSUE AFRESH AS PER LAW AND FACTS. IN C ASE THE ASSESSEE FAILS TO APPEAR BEFORE THE LD.CIT THE LD.CIT MAY TAKE APPRO PRIATE VIEW AS PER LAW. WE HOLD AND DIRECT ACCORDINGLY. THE GROUNDS RAISED BY THE ASSESSEE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PU RPOSES. 7. IN THE RESULT BOTH THE APPEALS FILED BY THE ASS ESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS THE 25 TH DAY OF JULY 2013. SD/- SD/- (SHAILENDRA KUMAR YADAV) (R.K. PANDA ) JUDICIAL MEMBER ACCOUNT ANT MEMBER PUNE DATED: 25 TH JULY 2013 SATISH COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. DEPARTMENT 3. CIT(A)-II KOLHAPUR 4 THE D.R A PUNE BENCH 5. GUARD FILE BY ORDER // TRUE COPY // SENIOR PRIVATE SECRETARY ITAT PUNE BENCHES PUNE