Vasupujya Maharaj Dehrasar Trust Sarkhej v. Commissioner Of Income Tax (Exemptions), Ahmedabad ==========================================================

IN THE HIGH COURT OF GUJARAT AT AHMEDABADR/SPECIAL CIVIL APPLICATION NO. 14830 of 2021 ========================================================== VASUPUJYA MAHARAJ DEHRASAR TRUST SARKHEJ Versus COMMISSIONER OF INCOME TAX (EXEMPTIONS), AHMEDABAD ========================================================== Appearance:MR B S SOPARKAR(6851) for the Petitioner(s) No. 1 for the Respondent(s) No. 1 ========================================================== CORAM: HONOURABLE MS. JUSTICE SONIA GOKANIandHONOURABLE MR. JUSTICE RAJENDRA M. SAREENDate : 04/10/2021 ORAL ORDER (PER : HONOURABLE MS. JUSTICE SONIA GOKANI) 1.The petitioner is before this Court under Article 226 ofthe Constitution of India seeking to direct the respondent toprovide copy of registration certificate u/s. 12A of theIncome Tax Act, 1961 (hereinafter shall be referred to as“the Act” for short) granted to the petitioner from the recordof the respondents which has not been provided by therespondent despite the request of the same. 2.Facts giving rise to the present petition are as follows: 2.1. The petitioner is a trust registered under the BombayPublic Trust Act, 1950 on 22.10.1952. The petitioner beingdesirous of getting registered u/s. 12AA of the Act made anapplication in the year 1973. For the past several years, thepetitioner filed return of income where registration numberu/s. 12AA of the Act has been mentioned and it hascontinued to enjoy exemption u/s. 11 of the Act as provided by the revenue under the statutory provision. 2.2. The petitioner since has been denied having exemptionu/s. 11 of the Act for the A.Ys. 2013-14 and 2018-19, onaccount of non-production of the physical copy of theregistration certificate from the petitioner, despite thepetitioner having already provided its registration No.HQ-IV-9/V-54/AR-III-74, in this petition. 2.3. The petitioner also preferred appeals against the samebefore the CIT (Appeals) and the same are pending. 2.4. The petitioner thereafter made an application underRight to Information Act seeking certified duplicate copy ofcertificate of registration u/s. 12A(a) of the said Act. 2.5. The reply received under the RTI Act on 31.07.2020states that the same was not traceable at the end of therevenue department. This according to the petitioner wasshocking. The petitioner made an application dated28.09.2020 before the very officer to obtain duplicatecertified copy of the certificate of registration. However, noreply has been received and almost a year passed. 2.6. The petitioner searched for the old certificate tomitigate future liability and also decided to make a freshapplication for registration u/s. 12AA of the said Act on06.12.2017. However, the same was rejected vide orderdated 15.06.2018. The petitioner made one more applicationon 28.03.2020 and provided all the required documents andthe petitioner has been granted registration vide order dated 28.08.2020. 2.7. Being aggrieved by the reply given under the RTI Actdated 131.07.2020 and thereafter non-response to theapplication made on 28.09.2020 for obtaining duplicatecertified copy of the certificate u/s. 12AA of the said Act,this petition is preferred with the following main prayers : “6.The petitioner, therefore, prays that thisHon’ble Court be pleased to issue a writ ofmandamus or a writ in the nature of mandamousor a writ of certiorari or a writ in the nature ofmandamus, certification or any other appropriatewrit, direction or order and be pleased to : (a) Call for the records of the proceedings anddirect the respondent to look into them and furnishthe copy of the registration application acceptancefrom the records of the respondent to thepetitioner. (b) Direct the respondent to grant the registrationunder section 12A/12AA to the petitioner since theyear 1975 or at lease from FY 2012-13.” “6.The petitioner, therefore, prays that thisHon’ble Court be pleased to issue a writ ofmandamus or a writ in the nature of mandamousor a writ of certiorari or a writ in the nature ofmandamus, certification or any other appropriatewrit, direction or order and be pleased to : (a) Call for the records of the proceedings anddirect the respondent to look into them and furnishthe copy of the registration application acceptancefrom the records of the respondent to thepetitioner. (b) Direct the respondent to grant the registrationunder section 12A/12AA to the petitioner since theyear 1975 or at lease from FY 2012-13.” 3.We have heard extensively learned advocate Mr.B.S.Soparkar for the petitioner , who has emphasized the needfor the authority concerned to maintain the records. He hasrelied on the following two decisions : (i)Principal Commissioner of Income Tax (Exemption) versus Dawoodi Bohra Masjid, reported in [2018] 402 ITR 29(Gujarat) and (ii)Morbi Plot Jain Tapgachh Sangh versus Commissionerof Income-tax reported in [2021] 433 ITR 1 (Gujarat). 4.According to him, this Court has entertained the writapplication under Article 226 of the Constitution of India inthe case of Morbi Plot Jain Tapgachh Sangh (supra),where identical controversy was involved. The writ applicantthere was a charitable trust registered with CharitableCommissioner, Rajkot and due to the devastating flood,entire records including books of accounts, registrationcertificate and other documents related to trust had gotdistroyed. In such circumstances, when the aforesaid writapplication preferred, this Court after hearing both thesides, directed issuance of a fresh certificate and grantedbenefit of exemption and the Court further held thatcontemporaneous record available with trust should belooked into minutely by the department so as to satisfy itselfthat the trust had been issued registration certificateu/s.12A of the Act and had been availing benefit ofexemption over a period of time under section 11. It alsodirected that the trust could not have been denied benefit ofexemption under section 11 of the Act only on account of itsdisability to produce necessary records on account of floodin the year 1979 and directed the appropriate authority tolook into the matter. 5.In the case of Dawoodi Bohra Masjid (supra), forwant of registered trust deed, the Principal Commissioner of Income-tax at one stage rejected the application and onceagain the Commissioner rejected the application on theground that the respondent instead of submitting copy ofthe trust deed, had merely submitted a copy of the orderpassed by the Gujarat State Wakf Board, which cannot besubstituted for a trust deed and the matter reached thetribunal. The tribunal allowed the appeal of the assessee byholding that looking to the nature of the trust, no separatedeed is required looking to the nature of the trust and asper the registration certificate of Gujarat State Wakf Boardwhich certify the object of the trust, appointment ofmanagers etc. 5.1. The said decision of the Tribunal was challengedbefore this Court and this Court did not entertain theappeal of the revenue on the basis of the material on recordwhere the Tribunal had considered registration details of thetrust contained in the order of Wakf Board and was satisfiedthat full details of the functions of the trust were availablewhich would establish the existence of the trust, itsregistration by the Gujarat State Wakf Board which alsocontained details of objects of the trust, manner ofappointment of Mutawalli etc. 6.Adverting to the facts in the instant case, we couldnotice that the petitioner trust is registered with theDeputy Charity Commissioner on 22.10.1952. Thepetitioner had made a request under RTI Act on 27.07.2020for duplicate certified copy of the certificate of registrationof the petitioner trust bearing Registration No.HQ-IV-9/V- 6.Adverting to the facts in the instant case, we couldnotice that the petitioner trust is registered with theDeputy Charity Commissioner on 22.10.1952. Thepetitioner had made a request under RTI Act on 27.07.2020for duplicate certified copy of the certificate of registrationof the petitioner trust bearing Registration No.HQ-IV-9/V- 54/AR-III-74, under section 12AA of the Act, certified copy of the extract from the register of application under section12AA maintained by the Commissioner of Income-tax andrequested for the information sought for. The petitioneralso sought information stating that if the extract, as statedabove, is not available, whether permanent register ofapplication under section 12A(a) maintained by theCommissioner of Income-tax, Gujarat-IV, Ahmedabad in theyear 1974 has been ultimately transferred to the said officeand presently available in its office or not. The petitioneralso mentioned the object of getting details, as the trustcould not get exemption which resulted into damage ofcrores of rupees. 6.1. We could notice from the reply which has been givenby the Information Officer, Assistant Commissioner ofIncome Tax (Exemption) & Central Public InformationOfficer, Ahmedabad, in response to the said informationunder the RTI Act dated 27.07.2020 that it has been repliedthat there is no evidence found showing transfer of recordsof the applicant from the respective CIT to the office of theAssistant Commissioner of Income Tax (Exemption) &Central Public Information Officer, Ahmedabad. 7.It appears that the petitioner also addressed a letter tothe Commissioner of Income Tax on 28.09.2020 requestingfor issuance of fresh registration certificate effective from11.02.1975 under the circumstances narrated in the saidletter. In the said letter, the petitioner also reproduced therelevant extract from the order under section 7(1) of the RTIAct. 8.The record of certificate of registration under section12A of the Act and the same is permanent record, therespondent department should have maintained and inabsence thereof, it cannot be concluded that the trust is notregistered. 9.We notice that instead of moving such an applicationto the Central Commissioner of Income Tax (Exemption) –appellate authority under the RTI Act, the petitioner hasmoved the application with a request for issuance of freshcertificate from the authority – Commissioner of IncomeTax, Vejalpur Ahmedabad, without questioning the orderin his capacity as an appellate authority, we are, therefore,of the view that the record which is to be maintained of theunit by the concerned authority is required to respondpositively and the same when is not only the requirementbut an obligation to maintain it. The application made bythe petitioner be treated as an application under the RTIAct and be considered within the time period specifiedunder the very statute. Let the appellate authority under theRTI Act respond to the petitioner without fail. Any grievanceif still persisting, the petitioner shall have legal recourseopen. 10.This Court has chosen not to take recourse to the writjurisdiction by way of self-restrictions. 11.We notice that in the case of Dawoodi Bohra Masjid(supra), it was the revenue which had challenged the orderof the ITAT when twice after the remand, the Commissionerhad chosen not to accept the copy of the Trust Deed and went on insisting for the original deed to be furnished. 12.So far as the Morbi Plot Jain Tapgachh Sangh(supra) is concerned, as could be noticed from the detailsprovided that the petitioner there had lost the documents inthe devastating flood in the year 1979 wherein the recordof the trust and the entire record had been destroyed andthose very special circumstances had led the Court todirectly entertain such petition which do not exist here. 10.This Court has chosen not to take recourse to the writjurisdiction by way of self-restrictions. 11.We notice that in the case of Dawoodi Bohra Masjid(supra), it was the revenue which had challenged the orderof the ITAT when twice after the remand, the Commissionerhad chosen not to accept the copy of the Trust Deed and went on insisting for the original deed to be furnished. 12.So far as the Morbi Plot Jain Tapgachh Sangh(supra) is concerned, as could be noticed from the detailsprovided that the petitioner there had lost the documents inthe devastating flood in the year 1979 wherein the recordof the trust and the entire record had been destroyed andthose very special circumstances had led the Court todirectly entertain such petition which do not exist here. 13.So far as the petitioner is concerned, it has alreadytaken a channel of making application under the RTI Actand without taking recourse of appellate authority underthe RTI Act, it has approached this Court and hence, theapplication which is sought to be pressed before this Court,is not entertained. 14.This petition is disposed of accordingly. However,disposal of this petition, in any manner, shall not prejudicethe right of the petitioner. (SONIA GOKANI, J) R.H. PARMAR (RAJENDRA M. SAREEN,J)