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M/s Sushil Ansal Foundation, 115-Ansal Bhawan, 16-K.G.Marg, New Delhi. vs DCIT(E), Aayakar Bhawan, Distt. Centre, Laxmi Nagar, Delhi-92.
November, 18th 2013
                                          1                I.T.A .No.-3947 & 3948/Del/2011

                     DELHI BENCH: `G' NEW DELHI


                        I.T.A .No.-3947 & 3948/Del/2011

  M/s Sushil Ansal Foundation,                DCIT(E),
  115-Ansal Bhawan, 16-K.G.Marg,              Aayakar Bhawan, Distt. Centre,
  New Delhi.                             vs   Laxmi Nagar,
  PAN-AAPCS1285H                              Delhi-92.
  (APPELLANT)                                 (RESPONDENT)

             Appellant by       Sh. H.Mitter, CA
             Respondent by      Sh. Ramesh Chandra, CIT DR


      These are two appeal filed by the assessee against the order dated 27.07.2011
of DIT(E) u/s 12A(1)(b) r.w.s 12A of the Income Tax Act, 1961 and order u/s 80G
consequent to the order u/s 12A(1)(b) r.w.s 12A of the Income Tax Act, 1961 on the
following grounds :-
      "1.    That the impugned order passed by the learned Director of
             Income-tax (Exemption) refusing registration to the appellant u/s
             12AA of the Income-tax Act is wholly erroneous, illegal and
             based on irrelevant and flimsy grounds.
      2.     That the learned D.I. (E) failed to appreciate that the appellant
             was a company registered u/s 25 of the Companies Act, 1956
             under a licence granted by the Central Government after its
             satisfaction that:
             i)     the company was formed for promoting art, science,
                    religion, charity or any other useful object, and
             ii)    intends to apply its income in promoting its objects and to
                    prohibit the payment of any dividend to its members, i.e. it
                    is not a profit making company.
             Thus with the grant of registration, the fulfillment of the above
                                  2                I.T.A .No.-3947 & 3948/Del/2011

     conditions is outside the place of any controversy.
3.   That the learned D.I. (E) has not pointed out any of its 'Main
     Object' as of not charitable nature.
4.   That the learned D.I. (E) wrongly observed that objects specified
     as incidental to were also the main objects and that the Main
     Objects were of business nature with profit motive and against
     the provisions of Section 2(15) of the Income-tax Act. He also
     failed to appreciate the provisions of section 13(1)(d) of the
     Companies Act, 1956 in this behalf.
5.   That the impugned order is wholly illegal and unsustainable in
     as much as u/s 12AA of the Income-tax Act, at the stage of
     granting registration the CIT or D.I.(E) has only to satisfy
     himself about the genuineness of the activities and objects of the
     trust or institution. Issues concerning the application of income,
     utilization of funds and satisfaction of other conditions specified
     in sections 11 and 13 of the Income-tax Act are always subject to
     scrutiny while assessing the income of the trust from year to
6. That on the facts and in the circumstances of the case, the learned D.I. (E) has further erred in observing that the society had not organized any activity except giving two cheques aggregating to Rs.50 lacs to its group concern Ansal Properties & Infrastructure Limited and that the purpose of this amount was not known. The above observations are totally contrary to facts and evidence on record as evidenced by copy of the agreement 27th day of January,2011 for purchase of Higher Education plot of land by the Appellant for establishing the Educational Institute filed as per requirement of the learned D.I.(E)which clearly shown that the land has been specially allotted by the group concern Ansal Properties & Infrastructure Limited for establishing higher education Ansal Institute of Technical & Management (AITM); and that Rs.50 lacs were paid as first deposit towards the cost of the land. He further failed to appreciate that with the step for purchase of higher education plot at a consideration of Rs.12.60 crores, the first activity in the direction of education commenced and it cannot be said that no charitable activity had been done. 7. That even otherwise, independent of and without prejudice to the foregoing grounds, the order passed by the learned D.I.(E) refusing registration was wholly illegal and liable to be quashed as no reasonable opportunity had been provided by him to the 3 I.T.A .No.-3947 & 3948/Del/2011 appellant for meeting and satisfying the objections in his mind. 8. That the order of the learned D.I.(E) is bad in law and on facts of the case. 9. That the Appellant craves leave to add, alter or amend or forego any grounds of appeal at the time of hearing." 2. The appeal argued by Smt. Renuka Jain Gupta, Sr. DR was refixed for clarification by the Bench. On the next date it was argued by Sh. Ramesh Chandra, CIT DR who stated that as per the Departmental instructions appeals arising out of orders u/s 12AA/12A have to be necessarily argued by CIT DR's only and not by Sr. DR. In the peculiar aforementioned facts and circumstances, both the sides were required to address the issue afresh. Accordingly both the sides argued, Ld. AR, Sh. H.Mitter, CA was required to address the shortcoming pointed out in as much as the grounds raised were argumentative and not as per the ITAT Rules. The LD. AR responded that Ground No-1 would cover his grievance and all the other grounds may be treated as arguments in support of the said ground. He was further required to address Ground No-7 wherein the assessee has agitated lack of opportunity. In response thereto inviting attention to the impugned order it was his submission that whatever was required to be filed by the DIT(E) was filed however on the legal objections which were posed by the DIT(E) in deciding the issue against the assessee it was argued that they were not confronted to the assessee. It was his argument that had the assessee been confronted by the objections which were prevailing in the mind of the DIT(E), the assessee would have responded to them. Since no such opportunity was provided the assessee had to file additional evidence before the Tribunal to show that incidental/ancillary objects were for promoting the main objects. It was his submission that at the time of grant of Registration what is necessary to be considered are the objects and there is no occasion to consider the applicability of section 11, 12 & 13 which is a settled legal position. Reliance was placed on the following decisions referred in the paper Book :- 4 I.T.A .No.-3947 & 3948/Del/2011 S.No. Particulars Page No. 1) Decision of Supreme Court in the case of ACIT 1 to13 vs Thanthi Trust reported in (2001) 115 Taxman 126 (SC) 2) Decision in the case of IILM Foundation Academy 14 to 20 vs CIT reported in (2011) 44 SOT 37 (Del) 3) Decision of High Court of Madras in the case of New 21 to 25 Life in Christ Evangelistic Association (NLC) vs CIT Reported in (2000) 111 Taxman 16 (Mad) 4) Decision of All India Tax Tribunal Judgements in the 26 to 29 Case of Ajit Education Trust vs CIT reported in (2010) 134 TTJ (Ahd) 483 5) Decision of All India Tax Tribunal Judgements in the 30 to 35 Case of Bhagwan Mahavir Purusharth Prerna Nidhi Nyas vs CIT reported in (2012) 144 TTJ (Jp) 379 6) Decision of All India Tax tribunal Judgements in the 36 to 38 case of Modern Defence Shikshan Sansthan vs CIT reported in (2007) 108 TTJ (Jd) 732 7) Decision of High Court of Madras in the case of 39 to 54 Director of Income Tax (Exemption) vs Willington Charitable Trust reported in (2011) 225 Taxation 4 (Mad.)." 3. Apart from that reliance was further placed upon the following orders:- 1. Aggarwal Mitra Mandal Trust vs. DIT(Exemption) (2007) 293 ITR AT 259 (Del); 2. Mahatma Gandhi Charitable Society vs CIT (2013) 142 ITD 568 (Coch-Trib); 3. New Life in Christ Evangelistic Society (NLC) vs. CIT (2000) 111 Taxman 16 (Mad); 4. Bhagwan mahavir Purusharth Prerna Nidhi Vyas vs CIT (2012) 144 TTJ (Jai) 379; 5. Ajit Education Trust vs CIT (2010) 134 TTJ (Ahd.) 483; and 6. Modern Defence Shikshan Sansthan vsCIT (2007) 108 TTJ (Jd) 732." 3.1. It was submitted that had the opportunity been granted the assessee would have been able to address the distinction which should have been considered between the main objects and the objects incidental to the main objects as considered in IILM Foundation Academy vs CIT (2011) 44 SOT 37 (Del.); Dharma 5 I.T.A .No.-3947 & 3948/Del/2011 Deepti vs CIT (1978) 114 ITR 454 (SC); Social Pedia Knowledge Foundation vs DIT (Exemption) (2013) 22 ITR (Trib) 236 (Chennai). 3.2. Referring to the facts it was his submission that the society was Registered u/s 25 of the Companies Act, 1956 which mandates that the income and property of the company whensoever derived, shall be applied solely for the promotion of the objects as stated qua the Memorandum of Association and that no portion thereof shall be paid or transferred directly or indirectly by way of dividend bonus or otherwise by way of profit to persons who had any time or have been members of the said company or to any persons claiming through them. Clause 7 of the licence further provides that no alternation shall be made to the Memorandum of Association in force unless the alteration has been submitted to and approved by the Central Government. 3.3. It was stated that the copy of the Registration u/s 25 of the Companies Act, 1956 is placed at paper book page 10 and the Memorandum of Association of company is placed at pages 1 to 8. 4. The Ld. CIT DR inviting attention to the impugned order submitted that as far as the impugned order is concerned, the DIT(E) has specifically addressed the reasons on the basis of which Registration has been denied to the assessee on which he would place reliance. It was also his stand that if the Bench is inclined to agree with the Ld. AR's submissions that specific opportunities to address the objections taken into consideration for denial of relief was not confronted to the assessee then it was his vehement plea that the issue may be restored to the DIT(E) instead of deciding the issue in the present forum as these arguments and additional evidence now sought to be relied upon in its favour by the assessee was never made available to the DIT(E). A perusal of the record also shows that the Co-ordinate Bench on 28.02.2012 had admitted additional evidence which consisted of the following documents and evidences:- 6 I.T.A .No.-3947 & 3948/Del/2011 "S.No. PARTICULARS Page No. of Paper Book 1) Copy of the Audited Balance Sheet and Income & 1to 12 Expenditure Account dated 4th August, 2011 of the Appellant Company for the year ended 31.3.2011 2) Copy of the Registered Sale Deed dated 27.4.2011 13 to 30 Executed by Ansal Properties & Infrastructure Limited In respect of sale of educational plot to the appellant 3) Copy of licnece granted by the Central Government u/s 31 to 32 25 of the Companies Act, 1956." 5. In the afore-mentioned peculiar facts and circumstances, we deem it appropriate to restore the issue back to the DIT(E). Once additional evidence has been admitted by a Co-ordinate Bench judicial propriety demands that the same should be made available to the authority before whom it ought to have been filed and in the circumstances it would not be appropriate to give any finding either legally or factually as the veracity of the facts and arguments based thereon need to be taken into consideration before deciding the issue. Since the outcome in ITA No- 3948/Del/2011 is dependent upon the finding arrived at in ITA No.-3947/Del/2011 accordingly the same is also restored to the file of the DIT(E) who shall decide the same in accordance with law after giving the assessee a reasonable opportunity of being heard by way of a speaking order. 6. In the result, ITA No-3947 & 3948/Del/2011 are allowed for statistical purposes. The order is pronounced in the open Court on 14th November, 2013. Sd/- Sd/- (S.V.MEHROTRA) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER Dated: 14/11/2013 *Amit Kumar* 7 I.T.A .No.-3947 & 3948/Del/2011 Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(Appeals) 5. DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI
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