Nauman Khan vs Ito on 7 December, 2009

       CENTRAL INFORMATION COMMISSION
      Room No. 308, B-Wing, August Kranti Bhawan, Bhikaji Cama Place, New Delhi-110066


                       File No.CIC/AT/A/2008/01028/LS
                             Nauman Khan Vs ITO

                                                           Dated : 7.12.2009
       This is in continuation of this Commission's Interim Decision dated
27.10.2009. It may be recalled that the Commission had directed
Chairman, CBDT to have an affidavit filed through a senior officer on the
following two issues :-
(i)    whether the filing of two documents mentioned in para 2 of decision
       dated 27.10.2009 before the competent authority was mandatory
       before the grant of exemption under section 11 of the IT Act or any
       other appropriate section; and
(ii)   If yes, then how is that these documents are not available in the
       relevant records of the concerned office of the Income Tax Deptt.

2.    As scheduled, the matter is called for hearing today dated 7.12.2009.
The public authority is represented by Srhi P.V. Rao, Director, Income Tax
(Exemption) and Shri Virender Singh Dhanda, ITO (HQ) (Exemption).
The appellant is present along with Advocate Shri R.H. Siddique and
Advocate M. Khan.

3.     Shri Rao submits a copy of his affidavit dated 30.11.2009 which is
taken on record and a copy thereof is provided to Advocate Siddique. As
regards the two documents requested for by the appellant, the submissions
of Shri Rao are as follows :-
(i)    that original application dated 14.8.1973 was, indeed, filed by
       Hamdard Dawakhana as evidenced by the processing of the said
       application in the concerned file but the same is not available in the
       official records;
(ii)   that no affidavit/declaration purported to have been filed by
       Hamdard Dawakhana along with original application referred to
       above is available in the official records.
(iii) that filing of any affidavit/declaration is not mandatory in terms of
       section 12 A of the IT Act read with Rule 17 A of Income Tax
       Rules, 1962.

4.     He would also submit that this position has been clearly stated in
para 03 of his affidavit which is extracted below :-
       "3.That in view of the abovementioned provisons of Rule-17A, the
       Trust/Society is required to file an application seeking Registration
       u/s 12A(a) in prescribed Form (Form No. 10A). But as is evident
       from clauses (a) & (b) of Rule-17A, there is no requirement of any
       affidavit/declaration along with the application. Though filing of
       Form No. 10A is mandatory requirement for grant of registration u/s
       12A, without which benefit of Sections 11 & 12 will not be
       allowable to the applicant, there was no formal procedural
        requirement of filing of any affidavit/declaration during the period
       under consideration."

5.     On the other hand, it is the forceful submission of Advocate
Siddique that the filing of application accompanied by affidavit/declaration
is mandatory in terms of section 12 AA of the IT Act and, therefore,
averment made by Shri Rao is not correct. He would also forcefully plead
that without the above mentioned documents having been filed before the
competent authority, tax exemption could not have been granted after the
amendments made in the IT Act in 1973.

                                  DECISION
6.      Regardless of the above controversy, the fact remains that the
original application dated 14.8.1973, concededly, filed by Hamdard
Dawakhana is not available on record. Besides, the affidavit/declaration, if
any, filed by the Hamdard Dawakhana is also not traceable. Hence, in the
fact and circumstances of the case, it would be expedient to direct Director
(Exemption), Income Tax Department to make fresh efforts to trace out
these two documents and if the same are traced out, to provide copies
thereof to the appellant. Besides, it would also be expedient to direct
Director (Exemption) to obtain a copy of the original application, dated
14.8.1973 from the Hamdard Dawakhana along with its enclosures if any,
filed at the relevant point of time and if so obtained, to transmit the same to
the appellant.

7.    The order of the Commission may be complied with in 10 weeks
time.

8.     The matter stands closed at the Commission's end.
                                                                       Sd/-
                                                             (M.L. Sharma)
                                          Central Information Commissioner

       Authenticated true copy. Additional copies of orders shall be
supplied against application and payment of the charges, prescribed under
the Act, to the CPIO of this Commission.

(K.L. Das)
Assistant Registrar
Address of parties :-
1.

Shri Virender Singh Dhanda
ITO (HQ) (Exemptions),
3rd Floor, Aaykar Bhawan,
Laxmi Nagar District Centre,
Delhi-110092

2. Shri Nauman Khan
D-497, B-1,
Pratap Vihar, Ghaziabad (UP)