Bhiwadi Real Estate Dev. Associa., ... vs Assessee

Jh vkj-ih-rksykuh] U;kf;d lnL; ,oa Jh Vh-vkj-ehuk] ys[kk lnL; ds le{k BEFORE: SHRI R.P. TOLANI, JM & SHRI T.R. MEENA, AM

vk;dj vihy la-@ITA No. 749/JP/2009 fu/kZkj.k o"kZ@Assessment Year : - Section 12AA of the I.T. Act, 1961

CREDAI (old Name M/s. cuke The CIT Bhiwadi Real Estate Vs. Alwar Developers Association E-127, Industrial Area, Bhiwadi, Alwar LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AAAAB 7947 A vihykFkhZ@Appellant izR;FkhZ@Respondent

fu/kZkfjrh dh vksj ls@ Assessee by : Mr. Swati Agarwal, CA (Representative of ld. AR - Adjournment application rejected )

jktLo dh vksj ls@ Revenue by : Mrs. Rolee Agarwal, CIT - DR

lquokbZ dh rkjh[k@ Date of Hearing : 12/02/2015 ?kks"k.kk dh rkjh[k@ Date of Pronouncement : 13/03/2015

vkns'k@ ORDER PER R.P. TOLANI, JM

This is an appeal filed by the assessee against the order of the ld.

CIT, Alwar dated 29-07-2009 for registration of trust/Sansthan u/s 12AA

of the I.T. Act, 1961 wherein solitary ground raised by the assessee is as

under:-

2 ITA No.749/JP/2009

CREDAI (Old Name Bhiwadi Real Estate Developers Association vs. CIT, Alwar . .

''1. That ld. CIT, Alwar erred in not granting registration u/s 12A of I.T. Act on the ground that the application was premature and it was necessary for the appellant to carry out charitable activity before grant of registration u/s 12A. He further erred in not appreciating that the conditions for grant of registration were very much fulfilled by the appellant and the objects of the association in case of appellant.

Accordingly, the impugned order passed u/s 12AA of I.T. Act deserves to be quashed and the application for grant of registration u/s 12A deserves to be allowed.''

2.1 Brief facts of the case are that the assessee is an organization of

builders of Bhiwadi. The ld. CIT rejected the application of the assessee

trust dated 28-01-2009 for grant of registration u/s 12AA of the Act by

following observations.

''I am aware of the counter argument that registration of a trust/institution can be given on the basis of the objects mentioned in its trust if they satisfy the conditions of charitable purpose. As without registration & 80G donation approval it would be difficult to start any worthwhile charitable activities due to constraints of fund. However, the trust is not bound to carry out charitable activities only after receiving donations It can also carry out such activities by itself initially before applying for grant of registration u/s 12A(a) of the I.T. Act, 1961. Since the trust has been created on 04-10-2007 but it had not carried out any charitable activity till date, its claim for grant of registration u/s 12A(a) is non-verifiable. Having regard to the facts of the case, it is apparent that the trust/ association has not been able to bring any evidence on record to establish that any activities of the trust/ association is to be taken for charitable purpose as a result 3 ITA No.749/JP/2009 CREDAI (Old Name Bhiwadi Real Estate Developers Association vs. CIT, Alwar . .

genuineness of the activities cannot be verified. The trust/ association is therefore, not eligible for registration u/s 12AA and hence its application is hereby rejected as pre-mature.

However, it will be open for the trust/ association to file fresh application, when it starts its activity, which is for charitable purpose and which can be verified and that time mater would be considered in accordance with law.''

2.2 Aggrieved, assessee preferred first appeal which was dismissed ex

parte in limine by the ITAT vide its order dated 20-05-2011.

2.3 The assessee filed a Misc. Application for recall of the dismissal

order, wherein it claimed its name as CREDAI-Bhiwadi (Formerly

known as Bhiwadi Real Estate Developers Association); it shall be

pertinent to mention that no documents of it being part of CREDAI were

furnished. M.A. made following prayers.

''The above mentioned case was decided ex-party by your honours on 20-05-2011. It is very humbly submitted that the notice for hearing was not received by the appellant, otherwise the case would have been attended on the date of hearing.

Since, there is reasonable and genuine cause for not attending the case, we request you to kindly accept our Misc. application by restoring the appeal for hearing and oblige. An affidavit stating is facts is enclosed herewith.''

2.4 The same was registered as Misc. Application No. 38/JP/2012,

after hearing vide order dated 8-08-2014, the ITAT recalled its earlier ex 4 ITA No.749/JP/2009 CREDAI (Old Name Bhiwadi Real Estate Developers Association vs. CIT, Alwar . .

parte order dated 20-05-2011, fixing the hearing of the appeal on merits.

On the hearing dated 16-12-14 it was observed by the Bench that the

while filing and arguing the Miscellaneous Application for recall of

earlier ex parte order, assessee has not provided proper documentation

and disclosure. Which lead to recalling the earlier order. Consequently, at

the time of hearing of this appeal on 16-12-2014, the following

proceeding sheet was noted.

''Present for the assessee Shri Kranti Mehta, CA Present for the Department Miss. Rolee Agarwal, ld CIT (DR)

Learned Counsel for the assessee contends that the name of the assessee has been changed from M/s. Bhiwadi Real Estate Developers Association to Credai-Bhiwadi subsequent to the filing of the ITA appeal. By mistake, the corresponding evidence has not been filed alongwith necessary application for admission of additional evidence. Therefore, time may be granted. Besides, we further find that the certificate given by the assessee's counsel is not in prescribed proforma, which also needs to be corrected as per rules.

It is further observed that the learned counsel has obtained the M.A. order dated 08-08-2014 without furnishing proper disclosure about the change of name, adopting a notionally registered name (CREDAI). Therefore, in exercise of suo moto powers of Bench, the assessee is given opportunity of hearing to show cause as to why miss-disclosure of facts, the order passed in M.A. No. 38/JP/2012 dated 08-08-2014 based on non-disclosure should not be recalled.

Appeal is adjourned to 12-02-2015 which is informed to parties.

Copies of this notice sheet may be provided to both the parties free of cost.

5 ITA No.749/JP/2009

CREDAI (Old Name Bhiwadi Real Estate Developers Association vs. CIT, Alwar . .

Sd/- Sd/- (T.R, Meena) (R.P. Tolani) Accountant Member Judicial Member''

2.5 Despite undertaking to do so, the assessee applied for adjournment

for dated 12-02-2015 without giving any reasonable cause. Seeing no

merit in adjournment application which is rejected and we are left with no

alternative to decide the appeal ex parte qua assessee after hearing the ld.

DR and perusal of material available on record.

2.6 The ld. DR contends that the assessee is indulging in

misrepresentation of facts and dilatory tactis in hearing of the appeal on

merits. The CREDAI name has been pre-fixed to assessee's name without

any lawful justification to mislead the Court. The Court was influenced

by such misrepresentation which led to recall its order . The assessee is

totally non-cooperative and is abusing the legal process. Therefore, the

appeal of the assessee needs to be dismissed and order relating to M.A.

No. 38/JP/2012 needs to be recalled.

2.7 We have heard the rival contentions and perused the materials

available on record. We find from the record and facts of the case that the

assessee has been adopting dilatory tactis and misrepresenting the facts.

When the assessee was asked for necessary papers for its claim about 6 ITA No.749/JP/2009 CREDAI (Old Name Bhiwadi Real Estate Developers Association vs. CIT, Alwar . .

CREDAI it was undertaken to be furnished before next hearing so that ld.

DR could be ready for proper reply in this behalf. Since it has failed to

provide the necessary documents without even whispering about it in the

adjournment application, it leads to a belief that the purported CREDAI

claim in this behalf is not bona fide. Consequently the recall order dated

08-08-2014 in M.A. No.38/JP/2012 dated 20-05-2011 was obtained by

assessee by suppressing the relevant facts.

2.8 Adverting to merits of the appeal, in our view assessee failed to

discharge it's onus to demonstrate that it is CREDAI on the basis whereof

registration u/s 12AA is based. Thus there is no change in facts and

circumstances as present before ld. CIT while refusing the registration. In

view of all the above observations, we see no infirmity in the impugned

order of CIT which is upheld, assesses grounds are dismissed.

2.9 Before parting we wish to express disappointment at the conduct of

the assessee in misrepresenting and twisting the facts and indulging in

dilatory tactis.

7 ITA No.749/JP/2009

CREDAI (Old Name Bhiwadi Real Estate Developers Association vs. CIT, Alwar . .

3.0 In the result, the appeal of the assessee stands dismissed.

Order pronounced in the open court on 13 /03/2015.

Sd/- Sd/-

¼Vh-vkj-ehuk½ ¼vkj-ih-rksykuh½ (T.R. Meena) (R.P.Tolani) ys[kk lnL;@ Accountant Member U;kf;d lnL;@Judicial Member

Tk;iqj@Jaipur fnukad@Dated:- 13th MARCH, 2015 *Mishra

vkns'k dh izfrfyfi vxzfs 'kr@Copy of the order forwarded to:

1. vihykFkhZ@The Appellant- CREDAI (Old Name M/s. Bhiwadi Real Estate Developers Associaton, Jaipur

2. izR;FkhZ@ The Respondent- The CIT, Alwar

3. vk;dj vk;qDr@ CIT,

4. foHkkxh; izfrfuf/k] vk;dj vihyh; vf/kdj.k] t;iqj@DR, ITAT, Jaipur

5. xkMZ QkbZy@ Guard File (ITA No.749/JP/2009)

vkns'kkuqlkj@ By order,

lgk;d iathdkj@ Assistant. Registrar