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Income Tax Appellate Tribunal, B BENCH, MUMBAI
order : 10.02.2023 O R D E R Per Rahul Chaudhary, Judicial Member: 1. By way of the present appeal the Appellant has challenged the order, dated 27.10.2022, passed by the Ld. Commissioner of Income Tax (Exemptions), Pune [hereinafter referred to as „the CIT(E)‟] rejecting application [Application No. : CIT EXEMPTION 01.04.2022] filed by the PUNE/2022-23/12AA/10180, dated Appellant for seeking approval under Section 12AB read with Section 80G(5) of the Income Tax Act, 1961 (hereinafter referred to as „the Act‟).
Assessment Year: 2022-23 2. The Appellant has raised following grounds of appeal:
1 Order passed by the Learned Commissioner of Income- Tax, Exemption, Pune Under Section 12AB rws 80G(5)(iii) dated 27/10/2022 [DIN : ITBA/EXM/F/EXM45/2022- 23/11046486774(1) is bad in law as (a) it seems that the Judicial Mind has not been applied, (b) the Proper Reasonable Opportunity of being Heard has not been given & (c) Rejected only for the want of Note on the Activities of the Trust or Rebutting the same for its compliance and ignoring the fact that the registration under section 12AB has been granted and therefore the aforesaid Original Order passed may please be restored.
When the appeal was taken up for hearing, none appeared for the Appellant. The Ld. Departmental Representative appraised the Bench about the adjournment for application moved by the Appellant. On perusal of the grounds of appeal raised by the Appellant we noted that the Appellant has, inter alia, contended that the Appellant was not granted a reasonable opportunity of being heard and that the CIT(E) has passed the order without application of mind. On perusal of the record we found that the written submissions, dated 06.02.2023, filed by the Appellant are on record. Therefore, we rejected the adjournment application and proceeded to examine contention raised by the Appellant in view of the material on record including the aforesaid written submissions.
We have heard the Learned Departmental Representative. He supported the order passed by the CIT(E) and submitted that the Appellant had failed to furnish necessary details and documents despite sufficient opportunities having been granted to the Appellant. He submitted that CIT(E) has returned clear finding that the despite opportunities having been granted the Appellant has failed to upload even the basis documents such as copy of instrument creating the trust which 2
Assessment Year: 2022-23 were to be filed along with the application itself and the note on the activities carried out by the Appellant along with documentary proof in support of the same. Further, the Appellant had also not provided details of the beneficiaries. Therefore, the CIT(E) was correct in rejecting the application seeking approval filed by the Appellant and the contention of the Appellant that reasonable opportunity was not granted is without any merit. He relied upon the order passed by the CIT(E) in order to support his contention.
We have perused the material on record and have taken into consideration the submissions advanced by the Learned Departmental Representative and written submission, dated 06.02.2023, filed by the Appellant.
The Appellant is a trust holding a valid registration under Section 12A(1)(ac)(i) of the Act for Assessment Year 2022-23 to Assessment Year 2026-27. The Appellant-trust was also granted provisional approval under Section 80G(5)(iv) of the Act for the period commencing w.e.f. 24.09.2021 till Assessment Year 2024-25. The Appellant is aggrieved by the order of the CIT(E) dismissing the application filed by the Appellant in Form 10AB for seeking approval under Clause (iii) of the First Proviso to Section 80G(5) of the Act.
On perusal of record, we find that only 1 notice, dated 29.08.2022, was issued to the Appellant by the CIT(E). This notice was served on the Appellant through Income Tax Business Application (ITBA) portal. In compliance with the same, the Appellant filed response. A copy of e-proceedings response acknowledgement bearing acknowledgment number 489996021130922 has been placed on record. A perusal of the 3
Assessment Year: 2022-23 aforesaid e-proceedings response acknowledgement shows that a number of documents were uploaded as annexures to the same. No other notice or intimation was received by the Appellant from CIT(E) before passing of the impugned order. A perusal of order passed by the CIT(E) shows that the CIT(E) was not satisfied with the documents submitted by the Appellant. According to the CIT(E) the Appellant had failed to provide basic documentation regarding constitution of the Appellant- trust and note given specific details of actual activities carried out by the Appellant-trust. However, we note that the Appellant was not specifically confronted with the aforesaid facts and was, thus, denied a reasonable opportunity of being heard as mandated by Second Proviso to Section 80G(5) of the Act read with Rule 11AA of the Income Tax Rules, 1962. We are of the view that sufficient opportunity of being heard has not been granted to the Appellant and the Appellant has been, in effect, proceeded ex-parte. We, therefore, set aside the order dated 27.10.2022, passed by the CIT(E) and direct the CIT(E) to pass a fresh order on the application filed by the Appellant [Application No. :CIT Exemption Pune /2022-23 /12AA/ 10180, dated 01.04.2022]. The Appellant is directed to furnish all documents/details specified in the impugned order passed by the CIT(E) which, according to the CIT(E), were called for and not furnished by the Appellant. The CIT(E) is directed to take into consideration the documents/details filed by the Appellant and give the Appellant a reasonable opportunity of being heard. It is clarified that the CIT(E) would be at liberty to call for such further information and details as he deems fit for deciding the aforesaid application filed by the Appellant as per law. In view of the aforesaid, Ground No. 1 raised by the Appellant is allowed for statistical purposes. 4
Assessment Year: 2022-23 8. In result the appeal is allowed for statistical purposes. Order pronounced on 10.02.2023.