Income Tax Appellate Tribunal - Kolkata
Ginia Devi Todi Charitable Trust, ... vs Assessee on 17 June, 2009
IN THE INCOME TAX APPELLATE TRIBUNAL "B" BENCH : KOLKATA
[Before Hon'ble Sri D. K. Tyagi, JM & Hon'ble Sri C. D. Rao, AM]
I.T.A. No. 2107/Kol/2009
Assessment Year :
M/s. Ginia Devi Todi Charitable Trust -Vs- Director of Income-tax (Exemption)
(PA No.AABTG 2461 J)
(Appellant) (Respondent)
Appellant by : Sri Subash Agarwal
Respondent by : Smt. Jyoti Kumari
O R D E R
Per D. K. Tyagi, JM :
This appeal preferred by the assessee is directed against the order of the Ld. DIT(E), Kolkata dated 17.06.2009 in rejecting the application of the assessee dated 19.12.2008 in form 10A and 10G for granting registration u/s. 12AA of the I. T. Act and initial exemption u/s. 80G of the I. T. Act. .
2. This appeal of the assessee has been time barred by 66 days. An application for condonation of delay has been filed by the assessee. After hearing both the parties and considering the condonation application of the assessee, the delay of 66 days has been condoned and the appeal is admitted for hearing.
3. At the time of hearing before us, the Ld. Counsel for the assessee contended that the assessee is aggrieved by the rejection of application u/s. 12AA and initial exemption u/s. 80G but has filed only one appeal. He, therefore, requested the bench to treat this appeal against the order u/s. 12AA with the permission to file another appeal for rejection of exemption u/s. 80G of the Act.
4. The facts of the case as revealed from the order of the Ld. DIT(E) are as under :
"As per the information available from the records it is seen that the applicant trust has come into existence on 27.05.2008 and is yet to commence activities. As such there is no bar on the activities to be conducted or performed by a charitable trust institution in the absence of the Registration under I. T. Act. Moreover, the Section 12AA of Act makes it mandatory for the Director/Commissioner of Income Tax to satisfy himself about the nature of objects of the trust/institution and the genuineness of the activities conducted. The question of examining the activities to ascertain the genuine nature thereof can arise only when the activities contemplated in the trust deed commence in right earnest. Unless any public activity as intended by the instrument governing the applicant starts, it would not be possible to examine the genuineness of nature of activities performed- The A/R incidentally has also admitted in the hearing granted that the applicant is yet to commence the activities as contemplated in the trust deed.2
Accordingly, the applicant trust does not deserve the grant of the Registration u/s 12AA of the Act since the applicant is yet to commence its activities. Reliance is drawn on the decision of Kerala High Court in the case of Self Employees Service Society Vs. CIT (2001) 247 ITR 18 (Kerala). I am to inform you that your above-cited applications dtd.
19.12.2908 filed in Form No. 10A and 10C have been rejected."
Aggrieved by this order, now the assessee is in appeal before us.
5. At the time of hearing before us, the Ld. Counsel for the assessee submitted that the issue is covered in favour of the assessee trust by various decisions of the Tribunal viz., ITA No.2095/Kol/2008 & ITA No.27/Kol/2009 , Vivekananda Welfare Trust -Vs- DIT(E) dated 23.1.2009, ITA No. 2101/Kol/2008 & ITA No.44/Kol/2009, She Foundation -Vs- DIT(E) dated 30.1.2009 and ITA No.1444 and 1445/Kol/2009, Nathuram Harika Charitable Trust -Vs- DIT(E) dated 28.10.2009. He, therefore, urged before the bench to grant registration u/s. 12AA of the I. T. Act.
6.. On the other hand, the Ld. DR relied on the order of the Ld. DIT(E).
7. We have heard both the sides, perused the material available on record and the decisions cited by the Ld. Counsel for the assessee. We find that on an identical issue, the Tribunal in the case of Vivekananda Welfare Trust -Vs- DIT(E) (supra) has held as under :
"4. We have heard the parties and perused the material placed before us. We have also gone through the Trust Deed and objects of the trust, copy of which is placed in the paper book filed before us. The assessee-trust is registered with the Registrar of Assurance, Kolkata. The objects of the trust are specifying purposes of public charitable trust. We find that identical issue has been examined by the I.T.A.T., Delhi Bench in the case of Dharma Sansthapak Sangh (Nivas) vs. CIT, reported in (2008) 118 TTJ (Del) 823. In that case the C.I.T. observed that the applicant-trust has not made any charitable activity or even has not performed any other activity and, therefore, he was not satisfied with the genuineness of the activities of the trust. He, therefore, rejected the assessee's application for grant of registration u/s. 12A . The assessee- trust came in appeal before the I.T.A.T. The Delhi Bench of I.T.A.T. after carefully considering the rival submissions, trust deed etc. did not endorse the action of the C.I.T. in refusing grant of registration to the assessee-trust and held as under :-
"9. We have carefully considered the rival submissions in the light of the material placed before us. We have gone through the supplementary trust deed, copy of which is placed at pp. 8 to 11 of the paper book. The same is registered with the Sub-Registrar vide his order dt. 24th May, 2007. We have also gone through the objects of the trust, a copy of which is placed at p.5 of the paper book. The objects of the trust are specifying purpose of religious activities. Such facts are also not disputed by the learned Departmental Representative. The registration cannot be denied to the assessee for the reason that it is not carrying on charitable activities. Religious activities are also construed to be charitable activities as per the decision of Hon'ble Allahabad High Court in the case of CIT vs. Radhaswami Satsang (supra) and the decision of the Hon'ble Supreme Court in the case of Hazarat Pirmahomed Shah Saheb Roza Committee vs. CIT (supra). The observations of CIT that trust deed does not specify the fate of assets and liabilities in case of dissolution of trust, it is observed that cl. 78 of the trust deed specifies that in case of dissolution of trust everything related to trust 3 shall be handed over to the justified national Government. Thus, this observation of the CIT is contrary to the facts found on record.
10. The law is now well-settled that while granting the registration to the charitable institution or trust, if it is at the commencement stage, the powers of CIT, with whom the application is filed by such trust/institution, are limited to the aspect of examining that whether or not the objects of trust are charitable in nature and this well established law is supported by the decisions relied upon the learned Authorised Representative and referred to in the earlier part of the order. It has already been observed that objects of trust, which are religious, are charitable in nature. Thus, assessee also fulfills such condition. The carrying of charitable activity at the stage of commencement of institution is not relevant to decide that whether such trust/ institution is entitled for registration. So long the objects of the trust are charitable in nature, registration cannot be refused, if the trust is genuine. Therefore, we find no material on record to justify the action of the CIT vide which the assessee trust has been refused for grant of registration. We direct CIT to grant registration to the CIT (sic-assessee-trust). The appeal filed by the assessee is allowed."[Emphasis supplied] While deciding the appeal in the above case, the Tribunal took into consideration the decisions of Tribunal in the cases of Acharya Sewa Niyas Uttaranchal vs. CIT [(2006) 105 TTJ (Del) 761] and Modern Defence Shikshan Sansthan vs. C.I.T. [(2007) 108 TTJ (Jd) 732]. Facts of the present case before us being identical to the case referred to above, we respectfully following the decision of the Tribunal in the case of Dharma Sansthapak Sangh (Nivas) vs. CIT (supra) direct the D.I.T. (Exemption) to grant registration to the assessee-trust u/s. 12AA of the Act and also grant exemption certificate u/s. 80G of the Act."
In view of the above and following the aforesaid order of the Tribunal, we direct the Ld. DIT(E) to grant registration to the assesee trust u/s. 12AA of the Act. Therefore, the appeal of the assessee is allowed.
8. In the result, the appeal filed by the assessee is allowed.
Order pronounced in the open Court on 9.4.2010
Sd/- Sd/-
(C. D. Rao) ( D. K. Tyagi)
Accountant Member Judicial Member
Dated : 9th April, 2010
Copy forwarded to the :-
1) M/s. Ginia Devi Todi Charitable Trust, 19/1, Camac Street, 3rd floor, Kolkata-17.
2) DIT(E), Kolkata
3) CIT, Kolkata.
4) D. R. ITAT, Kolkata.
(True Copy)
By Order
Deputy Registrar
Jd. (Sr. P.S.) I.T.A.T., Kolkata