Referred Sections: Section 80G(5)(vi) of the Act Section 11 and 12 of the Act
IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH: `E' NEW DELHI
BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER
AND
MS SUCHITRA KAMBLE, JUDICIAL MEMBER
I.T.A. No. 6505/DEL/2017
Om Welfare and Educational Trust Vs CIT(E)
2nd Floor, City Hospital, Azad Nagar, Sector- 17- E,
Hisar, Chandigarh
Haryana
PAN: AAATO4595L
(Appellant) (Respondent)
Appellant by Sh. Gautam Jain, Adv.,
Sh. Piyush K. Kamal, Adv.
Respondent by Ms. Pramita M. Biswas, CIT, D.R.
Date of Hearing 10.06.2019
Date of Pronouncement 13.06.2019
ORDER
PER SUCHITRA KAMBLE, JM
This appeal is filed against the order dated 31.08.2017 passed
by the Commissioner of Income Tax (Exemption), Chandigarh u/s
80G(5)(vi) of the Income Tax Act, 1961.
2. Grounds of appeal read as under:
"1. That the learned Commissioner of Income Tax
(Exemptions) Chandigarh has grossly erred both in law
and, on facts in not granting approval under section
80G(5)(vi) of the Act read with Rule 12AA of the Income Tax
Rules, 1962 vide order dated 31.8.2017
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Om Welfare & Educational Trust, Hisar
2. That the impugned order has been made in an arbitrary
and whimsical manner and that too without giving any
proper opportunity of being heard much less a fair
opportunity and as such the order passed is against the
principles of natural justice.
3. That the learned Commissioner of Income Tax
(Exemptions) has failed to appreciate that, while examining
the application under section 80G(5)(vi) of the Act, the scope
was to merely examine the genuineness of the activities of
the assessee trust and, whether income received by the
assessee trust is liable to be considered under section 11
and 12 of the Act and, not whether the income is actually
exempt under section 11 and 12 of the Act.
4. That the learned Commissioner of Income Tax
(Exemptions) ought to have independent entitle to the
applicant trust and not merely rely on the non-filing appeal
before Hon'ble Tribunal against order dated 21.3.2016
which too was based on factual misconception and, not in
accordance with law.
It is, therefore, prayed that it be held that the appellant is a
charitable institution and, is therefore entitled to
registration u/s 80G(5)(vi) of the Act. It be further held that,
the impugned order is not based on correct appreciation of
the statutory provisions of law and thus, the order is totally
untenable both on facts and in law."
3. The applicant is an Association Welfare Society running
educational institution and medical facilities. The motive of the
trust is imparting education to the children and not to earn the
profits but only that of philantherophic purpose. The trust is
running a High School and Vocational Courses for skill India (ITI)
and diploma in Polytechnic College at village Garhi Tehsil Hansi
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Om Welfare & Educational Trust, Hisar
District Hisar (Haryana). The trust is affiliated with Haryana State
Board of Technical Education, Panchkula. The trust is also
running a free OPD clinic at Azad Nagar, Hisar (Haryana). The
application u/s 80G(50(vi) was filed by the applicant on 23.02.2017
in the office of Commissioner of Income Tax (Exemption) for
approval u/s 80G of the Act. Registration u/s 12AA of the Act was
given vide order dated 10.09.2015. The assessee submitted various
documents as per the requirement of the application u/s 80G
approval. The Commissioner of Income Tax (Exemption) rejected
the application made u/s 80G(5)(vi) of the Act only on the ground
that the applicant has not filed any appeal before the Tribunal as
the earlier 80G application was rejected vide the said office order
dated 31.03.2016.
4. Being aggrieved by the order u/s 80G(5)(vi), the applicant filed
present appeal before us.
5. The Ld. AR submitted that the Commissioner of Income Tax
(Exemption) erred in not approving section 80G(5)(vi) read with Rule
12AA of the Income Tax Rules, 1962 without giving any proper
opportunity of being heard. The Ld. AR further submitted that the
scope of the application u/s 80G(5)(vi) was to merely examine the
genuineness of the activities of the applicant trust and whether
income received by the applicant trust is liable to be considered u/s
11 & 12 of the Act. But not to examine whether the income is
actually exempt u/s 11 & 12 of the Act. The Ld.AR further
submitted that merely non filing of appeal before the Tribunal
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against the earlier order dated 21.03.2016 cannot be the sole
ground for rejecting application u/s 80G(5)(vi).
6. The Ld. DR relied upon the order of the Commissioner of
Income Tax (Exemption) and submitted that the Commissioner of
Income Tax (Exemption) has taken due recourse of the earlier order,
which was not challenged by the assessee/applicant trust before
any forum.
7. We have heard both the parties and perused all the relevant
material available on record. It is pertinent to note that the
assessee was granted registration u/s 12AA vide order dated
10.09.2015. The earlier application for approval u/s 80G was
rejected vide order dated 21.03.2016 on the ground that receipt and
payment account which was specifically asked was not furnished.
The applicant trust while making a fresh application has submitted
all the required documents in February, 2017 which was not at all
taken cognizance by the Commissioner of Income Tax (Exemption).
The Commissioner should have taken cognizance about the
documents placed before him and after going through the
documents should have decided the application on merit, but
Commissioner failed to do so. Therefore, we are of the opinion that
the matter may be restored to the file of the Commissioner of
Income Tax (Exemption) for taking cognizance of the application
along with the documents submitted by the applicant trust and
after going through the appropriate order may be passed
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accordingly. Therefore, appeal of the applicant trust is partly
allowed for statistical purpose.
8. In the result, the appeal of the appellant is partly allowed for
statistical purpose.
Order pronounced in the Open Court on 13th June, 2019.
Sd/- Sd/-
(N.K. BILLAIYA) (SUCHITRA KAMBLE)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Dated: 13/06/2019
*Kavita Arora
Copy forwarded to:
1. Appellant
2. Respondent
3. CIT
4. CIT(Appeals)
5. DR: ITAT
ASSISTANT REGISTRAR
ITAT NEW DELHI
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ITA No. 6505/Del/2017
Om Welfare & Educational Trust, Hisar
Date
Draft dictated on 13.6.2019
Draft placed before author 13.6.2019
Draft proposed & placed before the
second member
Draft discussed/approved by
Second Member.
Approved Draft comes to the 13.6.2019
Sr.PS/PS
Kept for pronouncement on 13.6.2019
&
Order uploaded on : 14.6.2019
File sent to the Bench Clerk 14.6.2019
Date on which file goes to the AR
Date on which file goes to the Head
Clerk.
Date of dispatch of Order.
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