2017 (3) TMI 962 - AT - Income Tax

Cancelling the registration certificate granted u/s 12A - assessee was involved in providing the bogus donation to the various trust and societies - Held that - CIT(Exemption) before granting the registration certificate shall conduct necessary enquiries as he thinks fit in order to satisfy himself about the genuineness of activities of the trust. Once the ld CIT(Exemption) is satisfied with the genuineness of the activities then he will grant the registration certificate. In the instant case before us, we find that the activities of the trust have not been doubted except the donation given by the assessee to BERT. Thus in our view at the most the exemption u/s 11 of the Act will be denied to such donation. Thus, in such circumstances the registration u/s 12A of the Act cannot be cancelled. We find that the activities of the trust in relation to its education activities have not been doubted and on the basis of same activities various registrations u/s 12A, 80G and 10(23C) were awarded to the assessee. Simply the assessee has given donation to a trust which is involved in the bogus transactions cannot be the basis for the denial of the registration certificates as discussed above. It is also important to note that the assessee has been giving donation in every year which has been duly accepted by the Revenue as evidenced from the details submitted which is placed on pages 23 of the paper book. The amount of donation given by the assessee trust over the several years to the other trust is very much charitable activities. In this connection the CBDT has issued instruction No. 1132 date 05.01.1978 wherein it was clarified that the payment of a sum by one Charitable Trust to another for utilization by the donee-trust towards its charitable objects is proper application of income for a charitable purpose. We also find that the notice for the cancellation of the registration certificate was issued u/s 12AA(3). However, Ld. CIT(Exemption) has also invoked the provisions of section 12AA(4) of the Act for cancelling the registration certificate which in our considered view against the principal of natural justice. The ld. CIT(E) before invoking the provisions of Section 12AA(4) should have issued the show cause notice. Therefore, we find that the proper opportunity to the assessee has not been furnished. - Decided in favour of assessee

Issues Involved:
1. Violation of principles of natural justice in the cancellation of registration under section 12A.
2. Legitimacy of the retrospective cancellation of registration under section 12A.
3. Allegations of bogus donations and money laundering activities.
4. Applicability of sections 13(1) and 13(2) regarding misuse of trust funds.
5. Misuse of sections 12AA and 80G(5)(vi) by the assessee.
6. Whether the activities of the assessee were genuine and in accordance with its objects.
7. Jurisdiction of the CIT to cancel registration with retrospective effect.
8. Overall correctness of the CIT's order on facts and law.

Detailed Analysis:

1. Violation of Principles of Natural Justice:
The assessee claimed that the order withdrawing/cancelling registration under section 12A was passed in violation of the principles of natural justice. It was argued that the materials relied upon were not disclosed, no opportunity was given to controvert or deal with the same, including by way of cross-examination, and the submissions made by the assessee were not considered. The tribunal noted that the statement of the managing trustee of BERT did not specifically name the assessee as being involved in bogus donations. Furthermore, the CIT(Exemption) failed to record the statement of Shri Gulab Pincha, who was alleged to be the conduit for the bogus donations, thus failing to provide a complete and fair opportunity for the assessee to defend itself.

2. Legitimacy of Retrospective Cancellation:
The CIT(Exemption) cancelled the registration with retrospective effect from April 1, 2006. The tribunal found that the CIT(Exemption) invoked provisions of section 12AA(4) without issuing a show cause notice under this section, which was against the principles of natural justice. The tribunal emphasized that the proper opportunity was not furnished to the assessee before invoking section 12AA(4).

3. Allegations of Bogus Donations and Money Laundering:
The CIT(Exemption) alleged that the assessee was involved in providing bogus donations to various trusts/societies, which were returned in cash, thus engaging in money laundering activities. However, the tribunal found no evidence in the statement of the managing trustee of BERT that directly implicated the assessee. The tribunal also noted that the statement of Shri Gulab Pincha, who was purportedly the intermediary, was not recorded, which was crucial to establishing the facts of the alleged bogus donations.

4. Applicability of Sections 13(1) and 13(2):
The CIT(Exemption) held that sections 13(1) and 13(2) were applicable, implying misuse of trust funds by the trustees. However, the tribunal found that there was no evidence to support the claim that the trustees received cash or benefitted from the donations. The tribunal concluded that the activities of the trust were genuine and carried out in accordance with its declared objects.

5. Misuse of Sections 12AA and 80G(5)(vi):
The CIT(Exemption) concluded that the assessee misused the provisions of sections 12AA and 80G(5)(vi). The tribunal, however, found that the assessee's activities, including running schools and providing education, were genuine and in line with its charitable objects. The tribunal emphasized that the mere allegation of bogus donations without concrete evidence could not justify the cancellation of the registration.

6. Genuineness of Activities:
The tribunal reviewed the activities of the assessee, including running schools and providing education, and found them to be genuine. The tribunal noted that the objects of the trust were charitable, and the activities were carried out in accordance with these objects. The tribunal referred to the case of CIT Vs. Apeejay Education Society, where it was held that the registration could not be cancelled if the activities were genuine and in line with the charitable objects.

7. Jurisdiction of the CIT:
The tribunal held that the CIT(Exemption) had no power to cancel the registration with retrospective effect from April 1, 2006, without issuing a proper show cause notice under section 12AA(4). The tribunal emphasized that the principles of natural justice were violated as the assessee was not given a fair opportunity to respond to the allegations under section 12AA(4).

8. Overall Correctness of the CIT's Order:
The tribunal concluded that the order of the CIT(Exemption) was erroneous on facts and in law. The tribunal emphasized that the CIT(Exemption) failed to provide concrete evidence of the assessee's involvement in bogus donations and money laundering. The tribunal also noted that the assessee's activities were genuine and in line with its charitable objects, and thus, the registration under section 12A should not have been cancelled.

Conclusion:
The tribunal allowed the appeals of the assessee, reversing the order of the CIT(Exemption) and reinstating the registration under section 12A. The tribunal emphasized the importance of adhering to the principles of natural justice and providing a fair opportunity to the assessee to defend itself against the allegations.

← Previous Next →