Heard both sides.
2.The petitioner filed an application for Certificate of recognition under
Section 80G(5) of the Income Tax Act, along with the application for registration under u/s.12AA of the said Act. The Assessing Officer was asked to conduct a preliminary enquiry regarding the activities of the petitioner's Trust and he submitted his report on 11.01.2008 and recommended for registration u/s.12AA of the I.T. Act. Based on the recommendation of the Assessing Officer, registration u/s/12AA was granted on 18.02.2008. But the certificate of recognition u/s 80G(5) of the I.T. Act was refused by the respondent, by order, dated 30.04.2008 and that order is challenged in this writ petition.
3.It is contended by the learned Senior Counsel appearing for the petitioner, Mr.R.Subramaniam, that without giving opportunity to the petitioner, the impugned order was passed by Commissioner of Income Tax No.I, Madurai, when enquiry under section 18(G) was pending before the Income Tax Officer, Head Quarters No.1 Madurai.
4.The learned Senior counsel appearing for the petitioner submitted that the respondent sent a letter dated 29.05.2008 calling for some information and the auditors' of the petitioner, by letter, dated 31.10.2008, furnished those particulars and the Income Tax Office,r Head Quarters No.1, Madurai, by letter, dated 02.12.2008, directed the petitioner to appear before the Commissioner of Income Tax, Madurai, along with the following documents on 10.12.2008 at 2.30 p.m., without stating the nature of documents and when the petitioner was making arrangements to appear before the respondent, the petitioner received the impugned order in the 3rd week of December 2008, which was, dated 30.04.2008 stating that the exemption applied for under
Section 80G(5) of the Income Tax, is rejected.
5.The learned Senior counsel appearing for the petitioner, therefore, submitted that during the pendency of the enquiry, without giving opportunity to the petitioner, the respondent has anti-dated the order as if it was passed on 30.04.2008 and hence, the impugned order is liable to be set aside and it amounts to pre-deciding issue.
6.The learned Senior counsel appearing for the petitioner further submitted that even assuming that the order was passed on 30.04.2008 as contended by the respondent, no opportunity was given to the petitioner and in the impugned order itself, it has been stated that for granting exemption under
section 80G(5) of the I.T. Act, in addition to the Registration Certificate issued under section 12AA of the Act, the application shall be accompanied by the documents as provided under Rule 11AA(2) and no opportunity was given to the petitioner to produce the said documents and hence, the order passed is against the principles of natural justice and is liable to be set aside.
7.On the other hand, the learned Counsel appearing for the respondent, Ms.S.Srimathy, contended that the order was, in fact, passed on 30.04.2008, but due to some confusion about the another proceedings in the name of 'Noorul Islam Educational trust', the order was not communicated immediately to the petitioner and it is only a mistake committed by the subordinates of the respondent department and the certificate was refused for valid reasons and there is an appeal provision under
section 253(1)(c) of the Income Tax Act, 1961 and without availing the appeal remedy, this petition is not maintainable. The learned Senior standing counsel appearing for the respondent also denied the allegations that the order was anti-dated and there is no need for anti-dating the order.
8.I have given my anxious consideration to the submissions of both the counsel.
9.It is seen from the documents available before me that the petitioner applied for Certificate of Recognition under
section 80(G)(5) of the I.T. Act, along with the application was registration under Section 12AA of the I.T. Act, dated 11.10.2007. The registration certificate under section 12AA, was granted on 18.02.2008. It is further stated that for granting certificate of recognition under
Section 80G(5) of the Act, certain documents are necessary under rule 11A(a)(2) and those documents are not made available before the respondent for granting the certificate of recognition. Though, the respondent has stated in detail, in the impugned order, that he has gone through the object of the trust, in the absence of any notes on activity and the accounts, it is not possible to find out the actual fund requirements for the purpose and no accounts have been submitted. In that case, the respondent could have directed the petitioner to produce the documents required by him, for considering the application for issuance of certificate of recognition under
Section 80G(5) of the Income Tax Act. But without asking for any particulars, he passed the order, dated 30.04.2008. In this connection, it is pertinent to refer to the letter of the auditor of the petitioner, dated 31.10.2008, wherein Chartered Accountant of the petitioner referred to the letter of the Commissioner of Income Tax, Madurai, dated 29.05.2008 and submitted the various records.
10.It is also stated in the affidavit filed in support of the writ petition that in response to the letter, dated 29.05.2008 sent by the respondent, the petitioner's authorised representative appeared in-person before the respondent and submitted a representation, in writing, enclosing necessary details regarding the financial statement for the year ended as on 31.03.2008 and also the details of activities in book form. Thereafter, the respondent issued a notice, dated 02.12.2008, directing them to appear before the respondent on 10.12.2008 stating that they must appear with the following documents, but without mentioning the documents to be produced. Though, in the counter, it was stated that opportunity was given to the petitioner, before passing of the order, dated 30.04.2008, there is no denial to the averments made in the writ petition that in response to the letter, dated 29.05.2008, issued by the respondent, the petitioner submitted the documents as called for. Further, no explanation has been stated by the respondent why the Income Tax Office, Head Quarters No.1, Madurai directed the petitioner to appear before the respondent, when order was already passed. Hence, it is hard to digest the explanation of the respondent stated in the counter that due to inadvertence and due to confusion regarding the name, the order could not be sent earlier. As it has been proved by the petitioner that during the pedency of the enquiry, the impugned order has been passed, it is liable to be set aside and hence, it is hereby set aside.
10.In fine, the writ petition is allowed and the matter is remanded to the respondent, directing the respondent to consider u/s.80G(5) application submitted by the petitioner, in accordance with law, after giving opportunity to the petitioner. No costs.
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