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Income Tax Appellate Tribunal, DELHI BENCH: ‘E’ NEW DELHI
Before: SHRI N.K. BILLAIYA & MS SUCHITRA KAMBLE
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: ‘E’ NEW DELHI BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND MS SUCHITRA KAMBLE, JUDICIAL MEMBER I.T.A. No. 6505/DEL/2017
Om Welfare and Educational Trust Vs CIT(E) 2nd Floor, City Hospital, Azad Nagar, Sector- 17- E, Hisar, Chandigarh Haryana PAN: AAATO4595L (Appellant) (Respondent)
Appellant by Sh. Gautam Jain, Adv., Sh. Piyush K. Kamal, Adv. Respondent by Ms. Pramita M. Biswas, CIT, D.R.
Date of Hearing 10.06.2019 Date of Pronouncement 13.06.2019
ORDER PER SUCHITRA KAMBLE, JM
This appeal is filed against the order dated 31.08.2017 passed by the Commissioner of Income Tax (Exemption), Chandigarh u/s 80G(5)(vi) of the Income Tax Act, 1961.
Grounds of appeal read as under: “1. That the learned Commissioner of Income Tax (Exemptions) Chandigarh has grossly erred both in law and, on facts in not granting approval under section 80G(5)(vi) of the Act read with Rule 12AA of the Income Tax Rules, 1962 vide order dated 31.8.2017
2 ITA No. 6505/Del/2017 Om Welfare & Educational Trust, Hisar 2. That the impugned order has been made in an arbitrary and whimsical manner and that too without giving any proper opportunity of being heard much less a fair opportunity and as such the order passed is against the principles of natural justice.
That the learned Commissioner of Income Tax (Exemptions) has failed to appreciate that, while examining the application under section 80G(5)(vi) of the Act, the scope was to merely examine the genuineness of the activities of the assessee trust and, whether income received by the assessee trust is liable to be considered under section 11 and 12 of the Act and, not whether the income is actually exempt under section 11 and 12 of the Act.
That the learned Commissioner of Income Tax (Exemptions) ought to have independent entitle to the applicant trust and not merely rely on the non-filing appeal before Hon’ble Tribunal against order dated 21.3.2016 which too was based on factual misconception and, not in accordance with law.
It is, therefore, prayed that it be held that the appellant is a charitable institution and, is therefore entitled to registration u/s 80G(5)(vi) of the Act. It be further held that, the impugned order is not based on correct appreciation of the statutory provisions of law and thus, the order is totally untenable both on facts and in law.” 3. The applicant is an Association Welfare Society running educational institution and medical facilities. The motive of the trust is imparting education to the children and not to earn the profits but only that of philantherophic purpose. The trust is running a High School and Vocational Courses for skill India (ITI) and diploma in Polytechnic College at village Garhi Tehsil Hansi
3 ITA No. 6505/Del/2017 Om Welfare & Educational Trust, Hisar District Hisar (Haryana). The trust is affiliated with Haryana State Board of Technical Education, Panchkula. The trust is also running a free OPD clinic at Azad Nagar, Hisar (Haryana). The application u/s 80G(50(vi) was filed by the applicant on 23.02.2017 in the office of Commissioner of Income Tax (Exemption) for approval u/s 80G of the Act. Registration u/s 12AA of the Act was given vide order dated 10.09.2015. The assessee submitted various documents as per the requirement of the application u/s 80G approval. The Commissioner of Income Tax (Exemption) rejected the application made u/s 80G(5)(vi) of the Act only on the ground that the applicant has not filed any appeal before the Tribunal as the earlier 80G application was rejected vide the said office order dated 31.03.2016.
Being aggrieved by the order u/s 80G(5)(vi), the applicant filed present appeal before us.
The Ld. AR submitted that the Commissioner of Income Tax (Exemption) erred in not approving section 80G(5)(vi) read with Rule 12AA of the Income Tax Rules, 1962 without giving any proper opportunity of being heard. The Ld. AR further submitted that the scope of the application u/s 80G(5)(vi) was to merely examine the genuineness of the activities of the applicant trust and whether income received by the applicant trust is liable to be considered u/s 11 & 12 of the Act. But not to examine whether the income is actually exempt u/s 11 & 12 of the Act. The Ld.AR further submitted that merely non filing of appeal before the Tribunal 3
4 ITA No. 6505/Del/2017 Om Welfare & Educational Trust, Hisar against the earlier order dated 21.03.2016 cannot be the sole ground for rejecting application u/s 80G(5)(vi).
The Ld. DR relied upon the order of the Commissioner of Income Tax (Exemption) and submitted that the Commissioner of Income Tax (Exemption) has taken due recourse of the earlier order, which was not challenged by the assessee/applicant trust before any forum.
We have heard both the parties and perused all the relevant material available on record. It is pertinent to note that the assessee was granted registration u/s 12AA vide order dated 10.09.2015. The earlier application for approval u/s 80G was rejected vide order dated 21.03.2016 on the ground that receipt and payment account which was specifically asked was not furnished. The applicant trust while making a fresh application has submitted all the required documents in February, 2017 which was not at all taken cognizance by the Commissioner of Income Tax (Exemption). The Commissioner should have taken cognizance about the documents placed before him and after going through the documents should have decided the application on merit, but Commissioner failed to do so. Therefore, we are of the opinion that the matter may be restored to the file of the Commissioner of Income Tax (Exemption) for taking cognizance of the application along with the documents submitted by the applicant trust and after going through the appropriate order may be passed
5 ITA No. 6505/Del/2017 Om Welfare & Educational Trust, Hisar accordingly. Therefore, appeal of the applicant trust is partly allowed for statistical purpose.
In the result, the appeal of the appellant is partly allowed for statistical purpose.
Order pronounced in the Open Court on 13th June, 2019.
Sd/- Sd/- (N.K. BILLAIYA) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEMBER
Dated: 13/06/2019 *Kavita Arora