TMI Blog2017 (12) TMI 868X X X X Extracts X X X X X X X X Extracts X X X X ..... A, ACCOUNTANT MEMBER For The Appellant : Anurag Sinha, Advocate For The Respondent : Inderjeet Singh, CIT DR ORDER 1. Both the appeals are directed against the orders of Ld. CIT (Exemptions), Lucknow dated 06.08.2015 and 28.09.2015 passed u/s 12AA(1)(b)(ii) and 154 of the Income Tax Act, 1961 (The Act in short), respectively. 2. In ITA No. 476/AGR/2015 assessee has challenged the action of Ld. CIT (E) in rejecting application u/s 12AA by taking up the following grounds of appeal: 1. BECAUSE, the Ld CIT (Exemption) Lucknow had fallen in error of facts as well as in law and in rejecting the Application seeking Registration under section 12AA of IT Act vide order dated 06.08.2015. The rejection is based on incorrect assumption of facts rendering the impugned order to be perverse. 2. BECAUSE, while holding that notice dated 29.05.2015 was not complied, Ld CIT failed to consider that the said Notice was duly complied by the Society in writing by furnishing Submission which got received in his office on 22.06.2015 well before the limitation date of 31.08.2015. (b) Because, it is equally incorrect to observe that another Notice dated 11.06.2015 fix ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion) Lucknow has neither discussed nor controverted any of the submission made by the applicant at the time of hearing pointing out apparent mistakes in the subject order. 5. BECAUSE, in any view of the case that rejection of Application under section 154 is arbitrary, unjust and against the facts and circumstances of the case 3. Briefly, noted facts of the case are that assessee filed application for registration vide speed post acknowledgement, dated 20.02.2015 which was received in office of the ld CIT (Exemption), Lucknow, on 23.02.2015, in respect of A.Y. 2015-16. The Ld. CIT (Exemption) rejected the application inter alia, observing in para-2 of the impugned order as follows: - that letter dated 29.05.2015 sent to the applicant calling for specific queries was not responded by the society, thereafter in order to provide another opportunity another letter dated 11.06.15 was sent which again remained non-responded and thereafter, finally a letter dated 14.07.15 was sent which was returned by the postal authorities with the remark that No one stays on the given address. 4. The Ld. CIT (E), vide para-3 of the impugned order, on the basis of material available o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted that after passing of the order under appeal dated 06.08.2015, assessee filed an application under section 154 on 21.08.2015 in the office of ld CIT(E) and in the application so filed by the assessee, under his signatures, countersigned by the Counsel has specifically challenged issuance and service of letter dated 11.06.15 fixing the date for 19.06.2015, for which attention was drawn to application filed u/s 154 placed at APB-85-86, in which vide para-4 it was stated before the ld CIT(E) that: It is a matter of fact that Notice fixing the date for 19.06.2015 was never received by the Society. It appears that neither it is issued nor served upon the Society as neither any Speed Post number is mentioned through which it is dispatched, nor the name of the person upon whom it is served is mentioned in the impugned order. 7.1 In view of the specific challenge made, it was imperative upon the ld CIT (E) to have rebutted the statement of fact submitted in writing by evidence while passing order u/s 154 which is also under challenge before the ITAT, and attention was drawn to order dated 28.09.15 passed by the CIT (E), in order to show that while passing order u/s 154 no evid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laim of the assessee that these documents were filed before CIT (E), during enquiry conducted by the ITO (E) as authorized by the CIT (E) and a Certificate to the effect filed with Paper Book confirming that the documents from Serial Nos.1 to 14 (APB-1 to 79) were filed before the CIT (E) and ITO (E). The ld CIT-DR was requested to produce the records of CIT (E) vide order sheet entry dated 09.08.2017 and the case was adjourned to 29.08.2017. However, on the date appointed, no record was produced to counter the correctness of the Certificate dated 07.05.2017. Under these circumstances, we have decided to proceed with the matter as no valid reason has been assigned for not providing the record of the ld CIT (E) at this stage of the hearing. 14. The first objection of the ld Counsel was that enough material was brought on records by the assessee before the ld CIT (E) to have arrived at conclusion that the society qualifies for grant of registration by meeting both the factors as required by the ld CIT (E) i.e object of charitable purpose and genuineness of activities . 15. It is seen that along with the application dated 20.02.2015 following evidences were enclosed with Form ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame of Dr. Tandon Nursing Home, (APBP-18-52). The society is having its own building, buses for the transportation, and other infrastructure of its own, as evident from the Audited Balance Sheets on records, and necessary for running of educational institution of such a nature. Thus, on the face of these evidences it can certainly be concluded that society is genuinely pursuing activities in fulfilment of its object. 19. The ld Counsel for the assessee pointed out that letter dated 29.05.2015 as was issued by the ld CIT (E) (APB-77-78) was duly responded by the assessee and the reply was sent through Speed Post on 18.06.2015 (APB-79) and which got delivered to the addressee on 22.06.15 (APB-80) as evidenced by Certificate issued by Indian Post. The assessee, vide aforesaid reply has complied on all 10 points out of 11 points contained in the said Notice. On point No. (ii) strangely the CIT (Exemption) has required the assessee to produce original document regarding registration certificate issued u/s 12AA of the Act ignoring the fact that assessee is seeking registration u/s 12AA and cannot be expected to have registration certificate in its hand u/s 12AA at the application stag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ape of Ledger Account of Building, Bills of Contractor, Ledger of Library/Laboratory item purchased along with Bill, Ledger Account of Furniture/Fittings alongwith Bills , Certificate from U.P State Medical Faculty, Lucknow, Letter from Indian Nursing Counsel, New Delhi certifying that after inspection conducted by them on 20/21-06-2011 the assessee institution is permitted and suitable for 40 seats subject to approval by the State Nursing Counsel and University/Board, Office Memorandum from the Office of The Registrar, Chatrapati Shahuji Maharaj Medical University, Lucknow informing that provisional affiliation to the Institute run by the Society is granted for B.Sc (Nursing) degree course as recommended by the Inspection Committee.(APB-55 to 69). 22. It is noted that the ITO (E) after issuance of Letter dated 30.06.2016 also got spot enquiry conducted through Inspector of Income tax, which Report has been obtained under the RTI Act by the assessee by making application dated 08.11.2016 (APB-81) seeking copies of Order-sheet of ITO (E) and Report of Inspector. This was allowed to the assessee by the ITO (E) under cover of his letter dated 17.11.2016 (APB-82) in which ITO (E) on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n its order, none of which has any application to the case on hands. In CIT v. Jamnalal Bajaj Sewa trust [1988] 171 ITR 568 it was held by the Hon ble Bombay High Court that where the capital gain arisen was claimed exempt under section 13(4) of the Income Tax Act. The Hon ble Court has held that the assessee is not entitled for exemption under section 11 in respect for it. In CIT v. National Institute of Aeronautical Education Society [2009] 181 Taxman 205 (Uttarakhand) the finding of fact recorded by authorities below was that the appellant was carrying any activity of trade and commerce. In the case on hands there is no such allegation therefore, this case is of no help to the revenue. Reliance placed to ITAT, Lucknow Bench in ITA No. 809/LKW/2014 is also misplaced as in absence of supply of copy of the unreported order to the assessee, it cannot be expected from the assessee to rebut the case. In the case of Kirti Chand Tarawati Ch. Trust v. DIT [1998] 232 ITR 11, Judgment, delivered by the Hon ble Delhi High Court was in the context of renewal of approval under section 80G of the Act. Thus, none of the case has relevance to the facts of instant case. 27. In the light of a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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