SHREE SANTSHIROMANI SHREE NARAYANDASJI SEWA CHIKITSA SANSTHAN, Sendhwa V. THE CIT-II, Indore

ITA 103/IND/2016

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 5766 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 1 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-03-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 14-03-2017
• Assessment Year: misc
• Appeal Filed On: 10-02-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LALCHAND
• Keywords: Charitable institution; Principle of natural justice; Condonation of delay
• Section: 12A; 12

Judgement Text

SHREE SANT SHIROMANI ITA NO. 103/IND/2016 1 , , IN THE INCOME TAX APPELLATE TRIB UNAL, INDORE BENCH, INDORE BEFORE SHRI C.M. GARG, JUDICIAL MEMBER AND SHRI O.P. MEENA, ACCOUNTANT MEMBER .../ I.T.A. NO. 103/IND/2016 SHREE SANTSHIROMANI SHREE NARAYANDASJI SEWA CHIKITSA SANSTHAN SENDHWA PAN AANTS 0463Q :: / APPELLANT VS COMMISSIONER OF INCOME TAX-II INDORE :: / RESPONDENT ! ' / ASSESSEE BY SHRI PRANAY GOYAL #$% ! ' / REVENUE BY SHRI LALCHAND & %' ( DATE OF HEARING 14.3.2017 )*+,- ( DATE OF PRONOUNCEMENT 1 5 . 3 .2017 / O R D E R PER SHRI C.M. GARG, JM THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LEARNED CIT-II, INDORE, DATED 7.8.2014 PASSED U /S 12AA(1)(B)(I) OF THE INCOME TAX ACT, 1961. SHREE SANT SHIROMANI ITA NO. 103/IND/2016 2 APPLICATION OF THE ASSESSEE FOR CONDONATION OF DELAY IN FILING THE APPEAL 2. WE HAVE HEARD BOTH THE SIDES AND ALSO PERUSED TH E RELEVANT MATERIAL ON RECORD. THE LEARNED ASSESSEES REPRESEN TATIVE (AR) SUBMITTED THAT THE DELAY OCCURRED IN FILING THE APP EAL IS BONAFIDE AND IS TOTALLY BECAUSE OF NON-RECEIPT OF THE ORDER DATED 7.8.2014 DENYING REGISTRATION U/S 12A OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). THE LEARNED COUNSEL FOR THE ASSESSEE F URTHER SUBMITTED THAT THE IMPUGNED ORDER WAS NOT SERVED UPON THE ASS ESSEE DESPITE THE FACT THAT THE APPELLANT CONTINUOUSLY FILED LETT ERS IN THIS REGARD TILL 18.12.2015 AND ON THE SAID DATE THE APPELLANT CAME TO KNOW ABOUT THE FACT THAT THE ORDER HAS ALREADY BEEN PASS ED. THE LEARNED AR FURTHER SUBMITTED THAT IMMEDIATE GETTING KNOWN O F SUCH FACT, THE APPELLANT FILED AN APPLICATION FOR OBTAINING CE RTIFIED COPY OF THE IMPUGNED ORDER WHICH WAS RECEIVED ON 30.12.2015 AND THE ASSESSEE FILED THE APPEAL WITHIN THE DUE TIME FROM THE DATE OF THE ACTUAL RECEIPT OF THE ORDER ON 10.2.2016 WITHIN THE STIPULATED PRESCRIBED TIME PERIOD. THE LEARNED AR FURTHER DREW OUR ATTENTION TOWARDS COPIES OF THE SUBMISSIONS DATED 16.10.2014 AND SHREE SANT SHIROMANI ITA NO. 103/IND/2016 3 18.12.2015 AND SUBMITTED THAT THE ASSESSEE FILED CO PY OF REGISTRATION DATED 4.10.2014 UNDER THE M.P. TRUST R EGISTRATION ACT, 1951 AND THE APPELLANT HAS BEEN CONTINUOUSLY REQUES TING THE LEARNED CIT TO PASS APPROPRIATE ORDER IN RESPECT OF THE APPLICATION OF THE ASSESSEE FOR REGISTRATION U/S 12A OF THE ACT WHICH SHOWS BONAFIDES OF THE ASSESSEE THAT HE WAS NOT INFORMED ABOUT THE FACT BY WAY OF SERVICE OF COPY OF ORDER OR ANY OTHER MOD E THAT THE ORDER HAS ALREADY BEEN PASSED DENYING REGISTRATION ON 7.8 .2014. THE LEARNED AR FURTHER SUBMITTED THAT IN VIEW OF THE FA CTS AND CIRCUMSTANCES STATED IN THE AFFIDAVIT DATED 1.2.201 6, WHICH IS UNREBUTTED, THE DELAY MAY KINDLY BE CONDONED AND TH E APPEAL OF THE ASSESSEE MAY KINDLY BE ADMITTED FOR HEARING ON MERITS. 3. REPLYING TO THE ABOVE, THE LEARNED CIT DR SUBMIT TED THAT AS PER THE INFORMATION RECEIVED FROM THE ASSESSING OFF ICER, THE COPY OF THE ORDER WAS SERVED ON THE ASSESSEE ON 10.10.2014 IN PROPER MANNER. HOWEVER, THE LEARNED CIT DR FAIRLY ACCEPTED THAT THERE IS NO RECEIPT OR PROOF OR SERVICE OF NOTICE ON THE ASS ESSEE FROM WHICH THE ACTUAL DATE OF SERVICE OF ORDER MAY BE GATHERED OR ASCERTAINED. THE LEARNED CIT DR SUBMITTED THAT WHEN THE DELAY IS NOT DUE TO BONAFIDE REASONS BEYOND THE CONTROL OF THE ASSESSEE THEN THE DELAY SHREE SANT SHIROMANI ITA NO. 103/IND/2016 4 CANNOT BE CONDONED. THUS, THE APPLICATION AS WELL A S THE APPEAL OF THE ASSESSEE MAY KINDLY BE DISMISSED. 4. ON CAREFUL CONSIDERATION OF THE ABOVE SUBMISSION S, WE OBSERVE THAT THE COPY OF THE WRITTEN SUBMISSIONS OF THE ASS ESSEE DATED 16.10.2014 SUBMITTED TO THE LEARNED CIT-II MAKES IT CLEAR THAT THE ASSESSEE FILED COPY OF REGISTRATION ORDER DATED 4.1 0.2014 SHOWING THAT THE ASSESSEE HAS GOT REGISTRATION UNDER THE M. P. TRUST REGISTRATION ACT, 1951 AND IN THE LAST LINE OF THES E SUBMISSIONS, THE ASSESSEE REQUESTED THAT IF ANY MORE INFORMATION IS REQUIRED, IT SHALL BE FURNISHED IN THE SAME MANNER FROM THE WRITTEN SU BMISSIONS DATED 18.12.2015 SUBMITTED TO THE CIT-II, INDORE. I T IS ALSO DISCERNABLE THAT THE ASSESSEE AGAIN REMINDED THE LE ARNED CIT-II, INDORE, TO DO THE NEEDFUL AT THE EARLIEST WITH THE PRAYER THAT IF ANY IMPORTANT INFORMATION OR DOCUMENT IS REQUIRED, IT S HALL BE FURNISHED. THESE TWO LETTERS CLEARLY ESTABLISH BONA FIDES OF THE ASSESSEE THAT IT WAS UNDER THE BELIEF THAT THE ORDE R HAS NOT BEEN PASSED AND ON 18.12.2015 WHEN THE ASSESSEE CAME TO KNOW ABOUT PASSING OF THE ORDER, IT APPLIED FOR CERTIFIED COPY OF THE IMPUGNED ORDER ON 18.12.2015 AND FILED THE PRESENT APPEAL ON 10.2.2016. THESE FACTS HAVE ALSO BEEN STATED IN THE AFFIDAVIT OF SHRI SHREE SANT SHIROMANI ITA NO. 103/IND/2016 5 GULABCHAND GOYAL, TRUSTEE OF THE APPELLANT TRUST, S WORN IN ON 1.2.2016 AND THERE IS NO REBUTTAL BY THE REVENUE TO THIS AFFIDAVIT. THEREFORE, THE FACTS STATED THEREIN CANNOT BE DISCA RDED OR DISMISSED WITHOUT ANY CONTRARY MATERIAL ON RECORD. IN VIEW OF THE ABOVE, WE ARE SATISFIED THAT THE DELAY IN FILING THE APPEAL W AS DUE TO BONAFIDE REASON WHICH WAS BEYOND THE CONTROL OF THE ASSESSEE . THEREFORE, THE DELAY IN FILING THE APPEAL DESERVES TO BE CONDONED AND WE CONDONE THE SAME. CONSEQUENTLY, THE APPEAL OF THE ASSESSEE IS ADMITTED FOR HEARING ON MERITS AND THE APPLICATION FOR CONDONATI ON OF DELAY IS ALLOWED. ON MERITS 5. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D CAREFULLY PERUSED THE RELEVANT MATERIAL PLACED ON RECORD. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE CIT-II, INDORE, DISMISSED THE APPLICATION OF THE ASSESSEE FOR REGISTRATION U/S 12 A OF THE ACT WITHOUT AFFORDING DUE OPPORTUNITY OF HEARING ON THE BASIS OF SOLE GROUND THAT THE TRUST HAS NOT BEEN REGISTERED UNDER M.P. REGISTRATION ACT, 1951. THE LEARNED AR FURTHER SUBM ITTED THAT THE ASSESSEE FILED THE COPY OF REGISTRATION DATED 4.10. 2014 UNDER THE M.P. TRUST REGISTRATION ACT, 1951 WHICH WAS NOT CON SIDERED BY THE SHREE SANT SHIROMANI ITA NO. 103/IND/2016 6 LEARNED CIT-II, INDORE, AND HE PASSED THE ORDER IN HASTY MANNER WITHOUT POINTING OUT ANY DEFECT OR ALLEGATION AGAIN ST THE CHARITABLE PURPOSES AND ACTIVITIES OF THE APPELLANT. 6. THE LEARNED CIT DR STRONGLY SUPPORTED THE ORDER OF THE LEARNED CIT-II, INDORE. HOWEVER, HE FAIRLY SUBMITT ED THAT THERE WAS A COMMUNICATION GAP BETWEEN THE APPELLANT AND THE A UTHORITY ADJUDICATING UPON THE GRANT OF REGISTRATION U/S 12A OF THE ACT. THE LEARNED CIT DR ALSO SUBMITTED THAT THE DEPARTMENT H AS NO SERIOUS OBJECTION IF THE CASE IS RESTORED TO THE FILE OF TH E LEARNED CIT-II, INDORE, FOR FRESH ADJUDICATION. 7. ON CAREFUL CONSIDERATION OF THE ABOVE SUBMISSION S, WE ARE OF THE CONSIDERED VIEW THAT THE APPELLANT WAS NOT PROV IDED DUE OPPORTUNITY OF HEARING TO PLACE ITS CASE WHICH RESU LTED INTO DISMISSAL OF APPLICATION. WE ARE SATISFIED THAT THE APPELLANT WAS NOT PROVIDED DUE OPPORTUNITY OF HEARING DURING THE PROC EEDINGS. THEREFORE, THE ORDER HAS BEEN PASSED VIOLATING THE PRINCIPLES OF NATURAL JUSTICE AND THUS THE SAME IS NOT SUSTAINABL E IN LAW. IN VIEW OF OUR ABOVE-NOTED FACTUAL POSITION, WE FIND IT APP ROPRIATE TO SET ASIDE THE IMPUGNED ORDER AND RESTORE THE ISSUE TO T HE FILE OF THE LEARNED CIT-II, INDORE, FOR FRESH ADJUDICATION, AFT ER PROVIDING DUE SHREE SANT SHIROMANI ITA NO. 103/IND/2016 7 OPPORTUNITY OF HEARING TO THE ASSESSEE AND WITHOUT BEING PREJUDICED FROM THE EARLIER ORDER PASSED BY HIM. WE ORDER ACCO RDINGLY. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES WITH THE DIRECTION TO THE LEAR NED CIT-II, INDORE, AS INDICATED ABOVE. ORDER PRONOUNCED IN OPEN COURT ON 15 TH MARCH, 2017. SD/- SD/- '( $ $ (O.P.MEENA) (C.M. GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER MARCH 15 TH , 2017. DN/ .