Mallikarjun School Society, ... vs Assessee

I.T.A. No. 4670/DEL/2014 A.Y. : --------- Mallikarjun School Society, Commissioner of Income Vill. & PO Aincholi, Pithoragarh, VS. Tax, Haldwani (Camp at Distt. Pithoragarh, Uttarakhand Dehradun), (PAN AABTM6832B) Uttarakhand (APPELLANT) (RESPONDENT)

Assessee by : Sh. K. Sampath, Advocate Department by : Sh. Gunjan Prasad, CIT(DR)

Date of Hearing : 15-06-2015 Date of Order : 16-06-2015

ORDER

PER H.S. SIDHU : JM This appeal by the Assessee is directed against the Order of the Ld. Commissioner of Income Tax, Haldwani (Camp at Dehradun) dated 23.7.2014 passed u/s. 12AA(1)(b)(i) of the I.T. Act, 1961 and raised the following ground:-

"That on the facts and in the circumstance of the case and in law the action of the Ld. CIT in refusing to grant registration u/s. 12AA of the Income Tax Act, 1961 is most grossly arbitrary, palpably erroneous and wholly unjust. It is prayed that this action must be quashed with directions to grant the registration as sought."

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2. The facts narrated by the Ld. Commissioner of Income Tax, Haldwani (Camp at Dehradun) are that the assessee-society made an Application for registration under section 12AA of the I.T. Act, 1961 (hereinafter called "the Act") on 13.1.2014. The Ld. CIT, Haldwani, examined the contents of the Application and after providing the opportunity of hearing to the assessee has rejected the Application by passing this impugned order.

2.1 Ld. CIT, Haldwani has passed the impugned order mainly by relying upon the order passed by the Chief Commissioner of Income Tax, Dehradun dated 13.9.2012 wherein Ld. CIT has denied the approval of the Society under section 10(23C)(vi) of the Act. He has also relied upon the judgment passed by the Hon'ble Uttarakhand High Court in the case of M/s Queens Educational Society reported in 177 Taxmann 326.

3. After hearing both the parties, we are of the view that assessee has filed a Writ Petition against the order dated 13.9.2012 before the Hon'ble Uttrakhand High Court and the same is pending, as stated by the Ld. CIT, Haldwani in the impugned order. This finding has also not been controvered by both the parties before us. Secondly, the judgment of the Hon'ble Uttarakhand High Court passed in the case of M/s Queens Educational Society reported in 177 taxmann 326 on the basis of which the Ld. CIT, Haldwani has rejected the Application filed by the assessee u/s. 12A has also been set aside by the Hon'ble Supreme Court of India in Civil Appeal NO. 5167 of 2008 in the case of M/s Queen's Educational Society vs. CIT vide Order dated 16.3.2015 reported in (2015) 55 taxmann.com 255 (SC). No doubt that the Ld. Counsel of the assessee has filed a small paper book containing pages 1 to 65 in which he has attached the copy of the Application for registration in Form no. 10A; letter from AO regarding registration u/s. 12.1.2014; Reply to AO

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dated 20.2.2014; Application for recognition u/s 10(23)(C)(vi) of the I.T. Act in Form NO. 56D; Reply to letter dated 3.9.2012; Copy of Affiliation Certificate issued by CBSE; copy of Order u/s., 10(23C)(vi) dated 13.9.2012; copy of Memorandum of Association; Copy of ITR and computation of taxable income for AY 2012-13 and copies of Audit Reports for assessment years 2012-13 to 2014-15. He stated that once the order relied upon by the CIT, Haldwani has been cancelled, then the impugned order may be set aside and the Appeal of the assessee may be allowed and registration u/s. 12AA of the I.T. Act may be given to the asseessee-society. 3.1 Ld. DR strongly opposed the request of the Ld. Counsel of the assessee and stated that the issue in dispute may be set aside to the file of the Ld. CIT, Haldwani to pass a fresh order, keeping in view of the decision of the Hon'ble Supreme Court of India passed in the case of Queen's Educational Society vs. CIT (Supra).

4. Keeping in view of the aforesaid discussions and the

documentary evidence filed by the Ld. Counsel of the assessee, we

are of the considered that Ld. CIT, Haldwani has passed the

impugned order on the basis of the order dated 13.9.2012 passed by

the Chief Commissioner of Income Tax, Dehradun against which a

Writ Petition is pending before the Hon'ble Uttrakhand High Court.

According to the provisions of section 12AA of the I.T. Act, the

Commissioner, on the receipt of Application for registration of a trust

or institution shall (a) call for such documents or information from

the trust or institution as he thinks necessary in order to satisfy

himself about the genuineness of activities of the trust or institution

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and may also make such inquiries as he may deem necessary in this

behalf; (b) after satisfying himself about the objects of the trust or

institution and the genuineness of its activities, he shall pass an

order in writing registering the trust or institution; if he is not so

satisfied, pass an order in writing refusing to register the trust or

institution. In the present case, we find that Ld.CIT, Haldwani in the

impugned order has not followed the prescribed procedure u/s. 12AA

of the I.T. Act and passed the impugned order on the basis of the

order dated 13.9.2012 passed by the Chief Commissioner of Income

Tax,Dehradun against which a Writ Petition is pending before the

Hon'ble Uttrakhand High Court. In our considered view the

impugned order is not sustainable in the eyes of law, therefore, is

deserved to be cancelled. Secondly, the Ld. CIT, Haldwani has also

not given full opportunity to the assessee for substantiating its claim

before him and passed the impugned order in a hurry manner which

is also not permissible under the law and is contrary to the principles

of natural justice. We are not commenting upon the merits of the

case as well as documentary evidence filed by the assessee in the

shape of Paper Book as discussed above. Therefore, in the interest

of justice, we are setting aside the issue in dispute to the Ld. CIT,

Haldwani to pass a speaking order, after giving the assessee proper

opportunity, after going through the judgment of the Hon'ble

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Supreme Court of India delivered in the case of Queens Educational

Society vs. Commissioner of Income Tax (Supra).

5. In the result, the Appeal filed by the Assesssee stands allowed for statistical purpose.

Order pronounced in the Open Court on 16/6/2015.

Sd/- Sd/-

[J.S. REDDY] [H.S. SIDHU] ACCOUNTANT MEMBER JUDICIAL MEMBER

Date 16/6/2015 "SRBHATNAGAR" Copy forwarded to: - 1. Appellant -

2. Respondent - 3. CIT 4. CIT (A) 5. DR, ITAT

TRUE COPY By Order,

Assistant Registrar, ITAT, Delhi Benches

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