ITO(TDS),WD-58(4),KOLKATA, KOLKATA vs. SRI NIRMAL KUMAR KEJRIWAL., KOLKATA

Both the stay applications and the appeals relate to one assessee for the same assessment year 2015-16, the common issues involve, therefore, these have been clubbed and heard together and a consolidated order is being passed for the sake of ITA Nos.250 & 251 and SP Nos.35 & 36/Kol/2016 M/s. Kishinchand P. Belani Trust convenience and brevity. As both stay applications have arisen out of the appeals in & 251/Kol/2016 respectively therefore, we have decided to dispose off the stay applications simultaneously. First we are going to deal with the main appeals.

The facts of the case are stated in brief. The assessee (trust) has filed an application in form No.10A for getting registered under section 12AA of the Act, but the same was rejected (vide order No.10E/240/2015-16 dated 29th December, 2015), by the Commissioner holding that non appeared on the date of hearing. The CIT ( Exemptions) also held that there is no provision of dissolution clause in the deed of trust and therefore, the deed of trust is defective.

The Ld. A.R. for the assessee submitted that the Commissioner of Income- Tax (Exemptions) did not give adequate opportunity of being heard to the assessee. The Ld. A.R. further submitted that the assessee was ready to file or rectify the clause relating to dissolution of the trust in the Trust Deed.The Ld. A.R. also submitted that the Ld. CIT ( Exemptions) passed both the orders without giving an adequate opportunity of being heard, therefore, it is against the natural justice.

On the other hand, the Ld. DR for the Revenue has submitted that the application which was submitted by the assessee to obtain the exemption under & 251 and SP Nos.35 & 36/Kol/2016 M/s. Kishinchand P. Belani Trust section 12AA contained certain mistakes. He stated that the clause relating to dissolution of the trust in the Trust deed was absent and therefore, the Ld. CIT(Exemptions) had rejected both the applications of the assessee.

Having heard the rival submissions, we are of the view that there is merit in the submissions of the Ld. A.R. for the assessee. As the Ld. AR pointed out that the assessee had requested the CIT (Exemptions) to give him some more time to get rectified the relevant clause pertaining to dissolution of the trust but he did not give opportunity to the assessee to get the rectification done and both the orders had been passed by him without giving adequate opportunity to the assessee under consideration. Accordingly, we set aside both the orders of the Ld.CIT (Exemptions) and restore the issue to his file, with the direction to re-adjudicate this issue after giving an adequate opportunity to the assessee, in the light of the discussion made supra.

As we have already decided to restore the main appeals filed by the assessee in to the file of the Ld. CIT (Exemptions) for re- adjudication, hence the stay applications filed by the assessee become infructuous and therefore, the stay applications are dismissed.

In the result, both the appeals filed by the assessee are allowed for statistical purposes and both the Stay applications are dismissed. Order Pronounced in the Court on 10-08-2016