Income Tax Appellate Tribunal - Amritsar
Madan Lal Puran Devi,, Amritsar. vs Assessee on 21 August, 2012
IN THE INCOME TAX APPELLATE TRIBUNAL
AMRITSAR BENCH; AMRITSAR.
BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER
AND SH. B.P.JAIN, ACCOUNTANT MEMBER
I.T.A. No.278(Asr)/2012
Assessment year:
PAN :AADTM0634P
M/s. Madan Lal Puran Devi Jain Trust, vs. Commissioner of Income-tax-II,
Amritsar. Amritsar.
(Appellant) (Respondent)
Appellant by:Sh. K.R.Jain, Advocate
Respondent by:Sh. Tarsem Lal, DR
Date of hearing:21/08/2012
Date of pronouncement:21/08/2012
ORDER
PER BENCH ;
The assessee has filed the present appeal against the impugned order of the Commissioner of Income Tax-II, Amritsar, dated 25.05.2012, on the following grounds:
"1. That the order of the Ld. CIT rejecting the application u/s 12AA of the Income Tax Act, 1961 is wrong, illegal and without jurisdiction.
2. That the Ld. CIT has not appreciated the facts of the case, documents filed and processed to reject the appeal arbitrarily.2 ITA No.278(Asr)/2012
3. That the details of activities carried on by the trust have been duly submitted and are on record and the same has not been considered by the AO.
4. That certain wrong facts have been mentioned in the order. The trust has received contribution from the trustee and utilized it for charitable activities.
5. That during the proceedings original trust deed was produced and copy PAN car have also been filed.
Accordingly it is prayed that order of the CIT be quashed and appellant trust may be granted registration u/s 12Aa of the Income Tax Act, 1961."
2. The assessee filed an application under section 12A(1)(aa) in form No.10A for grant of registration u/s 12AA of the Income-tax Act, 1961, on 16.11.2011 in the office of the CIT-II, Amritsar. The application filed by the appellant-trust was accompanied with photocopy of the trust deed which is an instrument vide which the trust has been created. According to the Ld. CIT-II, Amritsar, the assessee has not filed a certified copy of trust deed as well as no other documentary evidence has been filed by the assessee alongwith the application. The Ld. CIT-II, Amritsar, called for the report from the ACIT, Circle-V, Amritsar, about the genuineness of objects and activities of the appellant trust, which was submitted on 10.05.2012. The Ld. CIT-II, Amritsar fixed the hearing for 23.05.2012 and Sh. K.R. Jain, Advocate, appeared before the ld. CIT and filed the details. After perusing the same, the Ld. CIT-II, Amritsar, stated that appellant trust is registered 3 ITA No.278(Asr)/2012 with Sub-Registrar, Amritsar and there are only six trustees, namely, S/Sh. Kulwant Rai Jain, Balwant Rai Jain, Rajneesh Jain, Sunit Jain, Yogesh Jain and Manoj Jain and all trustees are family members. The Ld. CIT-II, Amritsar, has also reproduced aims and objects of the appellant trust at page 2 (para 3) of his order and for the sake of convenience the same are reproduced as under:
i) To acquire, establish, manage and maintain institutions for imparting and promoting education and learning in all its branches and for giving donations, grants, aids to such educational institutions.
ii) To help to the deserving students by the way of awards of scholarships, grants, aid, prizes, monetary assistance, supply of text books, cloth etc. and all the kinds of such helps to the deserving students including provisions of food and/or residence.
iii) To purchase and distribute literature for creating awareness in environment activities and community welfare literature.
iv) If any trustee die or retire or become incapable or unfit to act, the continuing or surviving trustee or trustee shall be entitled to appoint a successor in the place of the trustee dying or retiring or becoming incapable or unfit to act.
v) Should all the trustee die or retire or become incapable or unfit to act the person or persons nominated by them in writing shall becomes trustee.
vi) Upon the appointment of new trustee, the trust estate shall vest in the new trustee jointly with the continuing or surviving trustee with the powers and subject to the trust hereby created.
vii) The trustee may from time to time frame schemes and rules and regulations for carrying out the object of the trust and/or the management and running of the institutions that may be established, run or aided and for regulating the meeting of the board of trustees or otherwise to add and/or alter and/or vary the same from time to time as the trustees may think fit and proper.4 ITA No.278(Asr)/2012
viii) To make the provisions for affording medical relief such as nursing, medical, surgical, or remedial assistance for the sick, wounded and surgical appliances, medicines, food and other comforts or necessities and for that to acquire, establish, manage, aid hospitals, clinics and dispensaries, nursing homes, maternity homes and other such institutions and/or give donations these or similar institutions.
3. The Ld. CIT-II, Amritsar, after considering the evidence produced by the appellant-trust was of the opinion that the appellant trust has not been able to furnish any worthwhile evidence to prove the considerable activity to achieve its aims and objects of the trust. The Ld. CIT-II, Amritsar, has held that the appellant trust is just a family trust of only one family members. Moreover, assets and liabilities statement of M/s. Madan Lal Puran Devi Jain Trust reveals that as on 31.03.2011 an amount of Rs.1,00,000/- has been shown as assets with HDFC Bank as settler's contribution as corpus, but as per records, neither the trust has obtained the Permanent Account Number nor any bank account opened in the name of trust. He also held that settler's contribution can not be treated as contribution of the settler to the trust. Since, no corpus has been standing in the name of trust and the trust cannot be created without any asset, therefore, the application of the appellant trust for registration u/s 12AA of the Act is void ab initio. Finally, the Ld. CIT-II, Amritsar, rejected the application filed by the appellant trust for registration under section 12AA dated 5 ITA No.278(Asr)/2012 16.11.2011 by holding that appellant trust is unable to satisfy or to convince him for its charitable face and its formation, vide impugned order dated 25/28.05.2012. Aggrieved by the order of the Ld. CIT-II, Amritsar, the assessee filed the present appeal before this Bench.
4. At the time of hearing, the ld. counsel for the assessee, Sh. K.R.Jain, who himself is a trustee in the present trust, argued that the appellant trust had filed various documentary evidences before the Ld. ACIT as well as before the Ld. CIT-II, Amritsar, which have not been properly considered and appreciated. He has filed the paper book containing pages 1 to 41, in which he has attached copy of Trust Deed, copy of letter dated 03-06/02/2012 from ACIT, Cir.5, Amritsar, Copy of letter dated 09/02/2012 addressed to ACIT, Cir.5, Amritsar, copy of letter dated 03.05.2012 addressed to ACIT Cir.5, Amritsar, Copy of PAN Card of M/s. Madan Lal Puran Devi Jain Trust, copy of letter dated May 10,2012 to ACIT along with statement of affairs of the trust as on 31.03.2011, copy of detail of Income & Expenditure as on 01.04.2012 to 31.03.2012, copy of bill of Fortis Escort Hospital for the treatment of poor patient Sh. Harbans Singh, copy of payment made for purchase of 480 glasses for distribution to poor persons and copy of application's received from poor & deserving students for educational support duly recommended by head of the Institutions. In addition to the said paper 6 ITA No.278(Asr)/2012 book, he has also filed copy of order of the Hon'ble Allahabad High Court in the case of Fifth Generation Education Society vs. CIT, reported in (1990) 185 ITR 634 (All) and also the decision of ITAT, Delhi , in the case of, Shri Sain Ji Dharmarth Trust vs. CIT (2006) 8 SOT 446 (Del) to support his contention and further requested that the impugned order of the Ld. CIT-II, Amritsar, may be cancelled with the direction to the Ld. CIT-II, Amritsar to grant registration under section 12A(1)(aa) to the appellant trust.
5. On the contrary, the Ld. DR relied upon the impugned order passed by the Ld. CIT-II, Amritsar. He further stated that all the trustees are family members meaning thereby appellant trust is a family trust. Secondly, he also stated that keeping in view the powers of the trustees, as mentioned in the objects of the appellant trust, all powers have been given to the trustees, which is a family trust and investment made in the trust can be used for their benefit and the trust is not entitled for registration as requested. The Ld. DR drew our attention towards para 7 of the deed and stated that all powers have been given to the Trustees to use the funds of the Trust in any manner as they like, which is not permissible under the law. In support of his contention, the Ld. DR relied upon the order passed by the ITAT, Delhi 'E"
Bench in the case of Shanti Devi Educational Trust, 315-L, Model Town, 7 ITA No.278(Asr)/2012 Rewari vs. CIT, Aayakar Bhawan, Opp. Mansrover Park, Rohtak, passed in ITA No. 4439/Del/2010 dated 29.02.2012.
6. After hearing both the parties and perusing the relevant material available with us, especially the paper book filed by Sh. K.R. Jain, Advocate alongwith citations cited by both the parties as well as the impugned order passed by the Ld. CIT-II, Amritsar, we are of the considered opinion that the ld. CIT-II, Amritsar, has passed the impugned order without commenting upon the evidences filed by the appellant trust, which the appellant has filed in the shape of paper book containing pages 1 to 41. Keeping in view the facts and circumstances of the case, we are of the view that the Ld. CIT-II, Amritsar, has passed the impugned order against the assessee without appreciating or considering the documentary evidence filed by the assessee before him. We are not commenting upon the merit of the case and we are also not appreciating the evidence filed by the appellant trust, which is in the shape of paper book containing pages 1 to 41 alongwith citations cited by the ld. counsel for the assessee as well as one citation cited by the Ld. DR, as mentioned hereinabove. But in the interest of justice, we are of the considered opinion that the issue in dispute requires re-consideration by the Ld. CIT-II, Amritsar, in view of the documentary evidences filed by the assessee in the shape of paper book mentioned above. Therefore, in the 8 ITA No.278(Asr)/2012 interest of justice, we are setting aside the issue in dispute to the file of the Ld. CIT-II, Amritsar, to pass a speaking order on the issue in dispute after considering the evidences filed by the assessee alongwith two decisions rendered by the Hon'ble Allahabad High Court in the case of Fifth Generation Education Society vs. CIT, reported in (1990) 185 ITR 634 (All) and ITAT, Delhi, in the case of, Shri Sain Ji Dharmarth Trust vs. CIT (2006) 8 SOT 446 (Del) as well as decision of ITAT, Delhi 'E" Bench, relied upon by the Ld. DR, in the case of Shanti Devi Educational Trust, 315-L, Modewl Town, Rewari vs. CIT, Aayakar Bhawan, Opp. Mansrover Park, Rohtak, passed in ITA No. 4439/Del/2010 dated 29.02.2012. Accordingly, we set aside the matter to the file of the ld. CIT-II, Amritsar, with the direction to decide the same afresh, as indicated above.
7. In the result, the appeal filed by the assessee in ITA No.278(Asr)/2012 is allowed for statistical purposes, as indicated above.
Order pronounced in the open court on 21st August, 2012.
(B.P. JAIN) (H.S. SIDHU)
ACCOUNTANT MEMBER JUDICIAL MEMBER
st
Dated: 21 August, 2012
/SKR/
Copy of the order forwarded to:
1. The Assessee:M/s. Madan Lal Puran Devi Jain Trust, Amritsar.
2. The ITO Cir.II, Amritsar.
3. The CIT(A), Asr.
4. The CIT, Asr.