Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, “A” BENCH, KOLKATA
Before: Shri M. Balaganesh
This appeal of the assessee arises out of the order of the CIT , Kol –XXI, Kolkata rejecting the claim of exemption u/s 80G of the Income Tax Act, 1961 vide proceedings in M.No. CIT-Kol-XXI/12A&80G/2012-13/4290-92 dated 31.1.2013.
The brief facts of this issue is that the assessee society was formed on 29.6.2005 and applied for registration u/s 12AA of the Income Tax Act, 1961 (hereinafter referred to as the ‘Act’) and exemption u/s 80G of the Act. The Learned CIT rejected the application seeking for registration u/s 12AA of the Act . Against this , the assessee had preferred an appeal before this tribunal and we are informed by the Learned AR that the said appeal has been disposed off in Nov 2015 in favour of the assessee. With regard to the exemption u/s 80G of the Act, the Learned CIT rejected the application on the following ground:- -A-AM Digamber Jain Samaj 1 . Murshdabad District
On perusal of records it is observed that the society is not filing return of income for last three years. The society has also not furnished audit report in Form 10B as per provisions of Rule 17B of the IT Rules.
Therefore application of the society is not in accordance with the rules. Accordingly the petition of exemption u/s 80G is rejected.
The assessee has raised the following grounds before us:-
1) For that the Ld. CI.T., Kolkata-XXI, under the facts and circumstances of the case, was unjustified in rejecting the application made by the appellant for granting it approval u/s 80G (5) (vi) of the Income Tax Act.
2) For that the Ld. CI.T., Kolkata-XXI grossly erred in law in rejecting the application made by the appellant for grant of approval u/s 80G (5) (vi) of the Income Tax Acton the grounds that "the society is not filing return of income for the last three years and has also not furnished audit report in Form 10B as per provisions of the IT Rules" when the Act and/or the Rules do not provide for and or prescribe such conditions.
3) For that without prejudice to the above, the learned (IT erred in passing the impugned order rejecting the application made by the appellant for granting it approval u/s 80G (5) (vi) of the Income Tax Act without complying with the mandatory requirements of the principles of natural justice, as before refusing such approval, he failed in giving the appellant a reasonable opportunity of being heard, as required under proviso to Rule 11AA (5) of the Income Tax Rules.
4) For that the appellant craves leave to alter, modify or amend any of the above ground/s and to add further ground/s on or before the final hearing of this appeal.
The Learned AR argued that the audited balance sheets were duly filed before the Learned CIT and for this purpose, he referred to the relevant portions of the paper book filed before us. He also stated that the audit report in Form 10B could be filed -A-AM Digamber Jain Samaj 2 . Murshdabad District only when the society is registered u/s 12AA of the Act and that too at the time of filing the returns. He further stated that the total income of the society in the earlier years is less than the maximum amount not chargeable to tax and hence the society is not required to file its returns. He prayed that this appeal may be restored back to Learned CIT to adjudicate afresh since this tribunal had directed the Learned CIT to grant registration u/s 12AA of the Act by its order in November 2015. We find from the paper book filed by the assessee that the audited balance sheets had indeed been filed before the Learned CIT along with other details. We find lot of force in the arguments of the Learned AR that when the income is below the taxable limit, then the society cannot be compelled to file its returns. We also hold that filing of audit report in Form 10B would arise only in the event of society enjoying registration u/s 12AA of the Act. Since this tribunal had already disposed off the appeal in respect of registration u/s 12AA of the Act and held it in favour of the assessee, we deem it fit and appropriate, in the facts and circumstances, in the interest of justice and fairplay, to restore this appeal to the file of the Learned CIT to consider the exemption u/s 80G of the Act in the light of tribunal order passed in November 2015 in respect of registration u/s 12AA of the Act.
In the result, the appeal of the assessee is allowed for statistical purposes. ORDER PRNOUNED IN THE OPEN COURT ON 16/12/2015