ASSOCIATION OF OTOLARYNGOLOGISTS AHMEDNAGAR ,AHMEDNAGAR vs. COMMISSIONER OF INCOME TAX, EXEMPTION, PUNE, PUNE

After vouching sufficiency of reasons beyond 143 days delay in instituting these twin appeals, we deem it fit to condone the delay in the light of ‘Collector, Land Acquisition, Anantnag and Anr. Vs Ms Katiji and Others’ reported at 167 ITR 5 (SC) and proceeded for adjudicate the issues on merit.

Briefly stated facts borne out of these case records are; the appellant assessee was accorded a provisional registration u/s 12A & 80G of the Act, pursuant to which it has e-filed its application in Form No 10AB on 28/09/2022 seeking grant of regular registration u/s 12A(1)(ac)(iii) under the category of charitable trust / institution and further Form 10AB on 30/09/2022 for recognition u/s 80G(iii) of the Act. The Ld. CIT(E) in-order to verify objects, activities and to ascertain the fulfilment of conditions for granting registration u/s 12A and recognition u/s 80G of the Act, was put the appellant to two notices from time to time, which remained effectively un-replied, un- attended or non-complied by the appellant assessee.

In so far as the application for 12A is concerned, for the want of evidences in support of activities purported to be engaged by the assessee, without putting the assessee to show-case notice, the Ld. CIT(E) has rejected the said application and cancelled the provisional registration granted to it u/s 12AB r.w.s. 12A(1)(ac)(iii) of the Act. Consequent to the aforestated denial to grant regular registration u/s 12AB of the Act, as a corollary the application of the appellant seeking regular registration for 80G is also rejected by the Ld. CIT(E) by an impugned order of even date.

Aggrieved by the aforestated rejections and cancellation of provisional registration granted to its, the appellant assessee has set-up these twin appeals against respective impugned orders alleging the action of Ld. CIT(E) as violative of principle of audi alteram partem.

We have heard both rival parties; and subject to the provisions of rule 18 of ITAT Rules, perused material placed on record which suggests that, the preliminary submission of the appellant did failed to give plausible response to various queries raised by the registering authority and also failed to substantiate its activities with cogent evidences so as enable him to draw a reasonable conclusion about the genuineness of the activities of the appellant. As a consequence, the Ld. CIT(E) rejected these applications in violation of principle of natural justice as commanded by sub-clause (B) of section 12AB(1)(b)(ii) and by clause (ii)(b)(B) of 2nd proviso to 80G(5) of the Act r.w. proviso to rule 11AA(5) of the Income Tax Rules, 1962.

It is a trite law as laid down by Hon’ble Supreme Court in case ‘Chandra Kishore Jha Vs Mahavir Prasad’ reported in 8 SCC 266 (SC), that ‘if a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner’. Applying this ratio, in our considered view, the Ld. CIT(E)’s failure to confront his negative satisfaction or his dissatisfaction over the application to the appellant before he could reject its twin applications, were against the provisions of statute as the action of rejection suffered from sufficiency of reasonable opportunity to the appellant to refute negative observation or dissatisfaction.

It shall be worthy to underlined that the opportunity of being heard should be real, reasonable and effective and same should not be empty formalities, it should not be a paper opportunity, the doctrine of natural justice is a facet of ITAT-Pune Page 3 of 4

In the light of aforestated discussion, without commenting on the merits of these cases, we deem it fit to remand these matters back to the file of Ld. CIT(E) to adjudicate the issue in accordance with law after according two effective opportunities to the assessee to refute negative satisfaction recorded against its twin application.

Resultantly, both these appeals of the appellant assessee are ALLOWED FOR STATISTICAL PURPOSE. In terms of rule 34 of ITAT Rules, the order pronounced in the open court on this Wednesday, 22nd day of November, 2023.