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TMI Blog2019 (3) TMI 1111X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 (11) TMI 2 - SUPREME COURT] - Decided in favour of assessee. - ITA No.52/Rjt/2016 - - - Dated:- 11-3-2019 - Shri Mahavir Prasad, Judicial Member And Shri Waseem Ahmed, Accountant Member For the Appellant : None (Written submission) For the Respondent : Shri Jitendra Kumar, CIT-DR ORDER PER WASEEM AHMED, ACCOUNTANT MEMBER: The captioned appeal has been filed at the instance of the Assessee against the order passed under section 80G(5)(vi) of the Income Tax Act, 1961 (here-in-after referred to as the Act ) of the Commissioner of Income Tax, Rajkot-I [CIT in short] dated 11/01/2008. 2. The assessee has raised the following grounds of appeal:- 1. The Ld. Commissioner of Income-tax has erred in law and facts in rejecting to grant renewal for approval U/s. 80G(5) of the Income-tax Act, 1961. The trust deserves recognition of renewal of approval U/s. 80G(5). 2. The Ld. Commissioner of Income-tax has erred in law and facts in forming an opinion against the appellant that the object of the trust are of religious nature. The trust deserves recognition of renewal of approval U/s. 80G(5). 3. The Ld. Commissioner of Income-tax has erred in law an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... When on the same objects from 26-12-1988 to 31-3-2006 the trust is considered as eligible for recognisation U/s. 80G(5) not to consider the same for the period 1-4-2006 to 31-3-2009 where also there would be no need for seeking such approval thereafter, there is an absolute error in not considering the past history and actions of his predecessor accepted by the department. The trust deserves recognition of renewal of approval U/s. 80G(5). 11. The appellant craves leave to add/alter/amend and/or substitute any or all grounds of appeal before the actual hearing takes place. 3. The assessee has raised as many as 11 grounds of appeal, but the effective issue raised by the assessee is that Ld. CIT erred in not granting registration under section 80G(5) of the Act. 4. The facts of the case are that the assessee in the present case is a trust and engaged in the spiritual activities like the celebration of festivals, to coordinate and get-together the people of spiritual mind of Dyans , yoga, etc. The assessee was also registered under section 12AA of the Act vide No. CIT.R/65-R-70/88-89 dated 20-3-1989. The assessee was also holding valid registration under section 80G(5) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hing how the object of the trust are not charitable. 6.1 In fact the Ld. C.I.T. admit at para. 5 page no. 2 of the order as under. From the free English translation of the trust given above, it is quite clear that the trust is having mixed objects that are religious and charitable. 6.2.2 Thus the Ld. C.I.T himself agrees that the trust has charitable objects. In respect of the trust contains mix object the matter is fully covered by the decision of Hon. I.T.A.T Ahmadabad (Copy enclosed) in the following case where the decision of the Hon. Gujarat High Court has been followed by the Hon. Bench. 6.3 In Jamiya Hamidiya Anjumane Himayatul Millat Trust v. CIT ITA No. 2145 (Ahd) of 2009 [Ahd 'A'- Trib), it was observed that though several objects are for the benefit of particular religious community, but there are various objects , which are charitable in nature and which are applicable to public at large without any discriminations of caste. Therefore, the assessee trust is a charitable cum religious trust to which section 13(l)(b) would not be applicable . The commissioner in his order under section 12AA has not pointed any other reason for refusing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8.4. As there was no change in the facts and circumstances vis -a-vis the object of assessee - society which was promotion of the educational and the same was duly recognize by department by allowing registration under section 11AA as well as granting registration under section 80G , there was no justifiable reason for declining the continuation of registration so applied for. - vide Uddar Bharati v. Director of IT (Exemption) (2008) 24 SOT 147(Delhi Trib). 8.6 There were practically no changes in the objects and the original object of providing hostel accommodation remained the same. Only the scope was enlarged to all students. The only new object was medical - aid to poor which was also charitable. Thus, the objects continued to be charitable. The trust has already been registered under section 12A and the registration has not been cancelled. The assessing officer, therefore, cannot probe the objects and declare the trust invalid. Principle of consistency is also in favour of the assessee as based on the amended objects renewal consistency is also in favour of the assessee as based on the amended objects renewal of approval under section 80G has already been granted an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) should have allowed the approval for renewal under section 80G vide - Skylark Educational Society vs. Director of IT (exemption )(2009) 24 DTR (Bang - Trib). 8.12 Further, the facts and circumstances prevailing in the period prior to 31/3/2009 had not changed materially thereafter , in view of foregoing reasons , it was held that CIT was not justified in denying renewal of approval under section 80G(5) (vi) - vide Shiv Shankar Memorial Education Society v. CIT (2012) 51SOT 279 (Del 'G' - Trib) :2012 147 TTJ ( Del 'G' - Trib) 753. 9. The humble attention of the Most Hon. Bench is also drawn to the position as mention at ground no. 10 which runs as under. Without prejudice, the Ld. CIT has erred in law and facts in not considering the factual aspect that the trust was registered with the Charity Commissioner on 26-12-1988 and since then at every 3 years the trust was considered as eligible for registration and subsequent renewal U/s. 80G(5) on the same objects which has been accepted by the department and various Commissioner Sir and has granted recognisation as well as renewal till 31-3-2006. The application for further renewal under appeal is for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e activities of the trust. Therefore we are of the opinion that the assessee deserves the registration under section 80G(5) of the Act as per the rule of consistency in view of the judgment of Hon ble. Supreme Court in the case of Radhasoami satsang reported in 193 ITR 321 wherein it was held as under: 13. We are aware of the fact that strictly speaking res judicata does not apply to income-tax proceedings. Again, each assessment year being a unit, what is decided in one year may not apply in the following year but where a fundamental aspect permeating through the different assess ment years has been found as a fact one way or the other and parties have allowed that position to be sustained by not challenging the order, it would not be at all appropriate to allow the position to be changed in a subsequent year. 14. On these reasonings in the absence of any material change justifying the revenue to take a different view of the matter-and if there was no change it was in support of the assessee-we do not think the question should have been reopened and contrary to what had been decided by the Commissioner in the earlier proceedings, a different and contradictory sta ..... X X X X Extracts X X X X X X X X Extracts X X X X
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