Shri Gema Education Trust,, RAJKOT-GUJARAT v. The Commissioner of Income Tax, Rajkot-II,, RAJKOT-GUJARAT

MA 27/RJT/2013 | misc
Pronouncement Date: 10-07-2013 | Result: Dismissed

Appeal Details

RSA Number 2724924 RSA 2013
Assessee PAN AALTS3173K
Bench Rajkot
Appeal Number MA 27/RJT/2013
Duration Of Justice 1 month(s) 17 day(s)
Appellant Shri Gema Education Trust,, RAJKOT-GUJARAT
Respondent The Commissioner of Income Tax, Rajkot-II,, RAJKOT-GUJARAT
Appeal Type Miscellaneous Application
Pronouncement Date 10-07-2013
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 10-07-2013
Assessment Year misc
Appeal Filed On 24-05-2013
Judgment Text
IN THE INCOME TAX APPELLATE TRIBU N AL : RAJKOT BENCH : RAJKOT BEFORE SHRI T. K. SHARM A JM AND SHRI D. K. SRIVASTAVA AM M. A . NO . 27 /RJ T/2013 (ARIS I N G OUT OF ORDER IN ITA NO. 55 /RJT/20 13 ) / ASSESSMENT YEAR 20 13 - 14 SHRI GEMA EDUCATION TRUST V. CO MMISSIONER OF INCOME - TAX GURUKRUPA PUNITNAGAR SR. NO.2 RAJKOT II B/H. PRESS COLONY NAVAL STREET CORNER JAMNAGAR ROAD RAJKOT PAN : AALTS3173K DATE OF HEARING : 07 .0 6 .2013 DATE OF PRONOUNCEMENT : 10 . 0 7 . 2013 FOR THE APPLICANT - ASSESSEE: SHRI AMIT N LAKHANI CA FOR THE REVENUE : SHRI K C MATHEWS DR / ORDER D. K. SRIVASTAVA : THE M ISCELLANEOUS A PPLICATION FILED BY THE ASSESSEE ARISES OUT OF THE ORDER PASSED BY THIS TRIBUNAL ON 15 .0 4 .201 3 AND READS AS UNDER: - THE APPELLANT WAS THE APPLICANT FOR THE ABOVE APPEAL AND IS A CHARITABLE TRUST. THE HONO URABLE BENCH HAS SET ASIDE THE ORDER OF LEARNED CIT RAJKOT - II TO DECIDE THE MATTER A FRESH AFTER ASSESSEE TRUST CARRIED OUT AMENDMENT IN TRUST DEED AS PER THE OBJECTIONS RAISED BY CIT. IN THIS CONNECTION IT IS RESPECTFULLY SUBMITTED THAT WHAT THE AR OF THE APPELLANT TRUST MEANT TO SAY WAS THAT THE PROPERTY APPELLANT TRUST MEANT TO SAY WAS THAT THE PROPERTY DID NOT VEST WITH THE TRUSTEES AS REGARD THE HONORSHIP THEREOF BUT IT IS VESTED ONLY FOR THE MANAGEMENT OF THE TRUST. IT IS RESPECTFULLY SUBMITTED THA T IN GROUNDS OF APPEAL BEFORE THE HONORABLE BENCH THIS PLEA HAS BEEN TAKEN ALONG WITH CASE LAWS SUPPORTING THE VIEW. THIS IS THE VIEW WHICH ALSO FIND PLACE UNDER THE PROVISIONS OF THE BOMBAY PUBLIC TRUSTS ACT 1950. IN VIEW OF THE ABOVE CASE IT IS PRAYE D THAT THE ISSUE MAY KINDLY BE DECIDED IN THE LIGHT OF THE FACTS SAID ABOVE AS THE APPELLANT HAD NO INTENTION TO AMEND THE PROVISIONS OF THE TRUST DEED IN THIS REGARD. THEREFORE IT IS HUMBLY PRAYED THAT THE MATTER MAY KINDLY BE RECONSIDERED. 2 MA 27 - RJT - 2013 SHRI GEMA EDUCATION TRUST 2. FACTS OF THE CASE IN BRIEF ARE THAT THE ASSESSEE FILED AN APPEAL BEFORE THIS TRIBUNAL AGAINST THE ORDER PASSED BY LD COMMISSIONER OF INCOME - TAX RAJKOT ON 21.01.2013 U/S 12AA OF THE INCOME - TAX ACT BY WHICH HE DECLINED TO REGISTER THE ASSESSEE - TRUST WITH THE FOLL OWING OBSERVATIONS: - 4. I HAVE CONSIDERED THE REPLY OF THE TRUST AND IT IS NOT FOUND TO BE ACCEPTABLE UNLESS AND UNTIL THERE IS A CHANGE IN THE TRUST DEED TO THAT EFFECT AND IT IS DULY APPROVED BY THE CHARITY COMMISSIONER BY. IT IS EVIDENT THAT THERE IS A CLEAR PROVISION IN THE TRUST DEED WHICH VESTS THE ASSETS OF THE TRUST IN THE TRUSTEES OF THE TRUST. THIS IS THE CLEAR VIOLATION OF SECTION 13(1)(C) OF THE INCOME TAX ACT 1961. AND THUS THE INCOME OF THE TRUST WOULD NOT BE ELIGIBLE FOR EXEMPTION U/S.11 A ND 12 OF THE INCOME TAX ACT 1961. SINCE THE INCOME OF THE TRUST WOULD NOT BE ELIGIBLE FOR EXEMPTION AB INITIO THE REGISTRATION U/S.12AA OF THE INCOME TAX ACT 1961 CAN NOT BE GRANTED TO THE TRUST. 3. IN ORDER TO ENABLE THE ASSESSEE TO REMOVE THE DEFECT S BY AMENDING THE TRUST DEED THIS TRIBUNAL RESTORED THE MATTER TO THE FILE OF THE LD CIT(A) VIDE ITS ORDER DATED 15.04.2013 IN ITA NO.55/RJT/2013 WITH THE FOLLOWING OBSERVATIONS: - 5. WE HAVE HEARD BOTH THE PARTIES AND CAREFULLY CONSIDERED THEIR SUBMI SSIONS. NO PREJUDICE WOULD BE CAUSED TO THE REVENUE IF LIBERTY IS GRANTED TO THE ASSESSEE - TRUST TO AMEND THE TRUST DEED SO AS TO REMOVE THE OBJECTIONS RAISED BY THE LD COMMISSIONER. IN THIS VIEW OF THE MATTER THE ORDER PASSED BY THE LD. COMMISSIONER IS SE T ASIDE AND THE MATTER IS RESTORED TO THE FILE OF THE LD. COMMISSIONER FOR A FRESH DECISION AFTER THE ASSESSEE - TRUST HAS CARRIED OUT THE REQUISITE AMENDMENT IN THE TRUST DEED AS PER THE OBJECTIONS RAISED BY THE LD COMMISSIONER. APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. 4. THE ASSESSEE NOW SEEKS RECONSIDERATION OF THE AFORESAID ORDER PASSED BY THIS TRIBUNAL FOR THE REASONS STATED IN THE MISCELLANEOUS APPLICATION. 5. WE HAVE HEARD BOTH THE PARTIES. CLAUSE 11 OF THE TRUST - DEED IS ABSOLUTELY CLEAR IN THAT THAT THE OWNERSHIP OF THE PROPERTY OF THE TRUST VEST S IN THE TRUSTEES AND 3 MA 27 - RJT - 2013 SHRI GEMA EDUCATION TRUST NOT IN THE TRUST. IT IS ALSO NOTICED THAT THERE IS NO CLAUSE ON THE TRUST DEED BY WHICH THE ELEMENT OF PRIVATE GAIN IS EXCLUDED. THERE IS NO STIPULA TION IN THE TRUST DEED THAT THE PROFITS/INCOME OF THE TRUST WOULD NOT BE DIVIDED OR DISTRIBUTED AMONG THE MEMBERS/TRUSTEES AT ANY TIME OR AT THE TIME OF DISSOLUTION. IN THE ABSENCE OF SUCH CLAUSES IN THE TRUST DEED IT WAS NOT POSSIBLE TO REVERSE THE ORDER PASSED BY THE LD COMMISSIONER OF INCOME - TAX U/S 12AA. IN ORDER TO ENABLE THE ASSESSEE TO AMEND THE TRUST DEED APPROPRIATELY IT WAS CONSIDERED REASONABLE TO RESTORE THE WHOLE MATTER TO THE FILE OF THE LD . COMMISSIONER TO ENABLE T HE ASSESSEE - TRUST TO CARR Y OUT THE REQUISITE AMENDMENTS IN THE TRUST DEED AS PER THE DIRECTIONS EARLIER GIVEN BY US IN OUR ORDER DATED 15.04.2013. WE THEREFORE DO NOT SEE ANY VALID REASON TO RECONSIDER/RECTIFY OUR ORDER. THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS DISMI SSED. ORDER PRONOUNCED ON 10 . 0 7 . 201 3 SD/ - SD/ - (T. K. SHARMA) ( D. K. SRIVASTAVA) JUDICIAL MEMBER ACCOUNTANT MEMBER RAJKOT : 10 . 0 7 . 2013 * BT COPY OF ORDER FORWARDED TO: - 1 . APPELLANT - SHRI GEMA EDUCATION TR UST JAMNAGAR ROAD RAJKOT 2 RESPONDENT - CIT RAJKOT - II RAJKOT 3 . CONCERNED CIT 4 . DR ITAT RAJKOT 5 . GUARD FILE BY ORDER TRUE COPY PRIVATE SECRETARY ITAT RAJKOT