Shishu Shiksha Prabandh Samiti Uttar pradesh, Lucknow V. Commissioner of Income Tax (Exemptions), Lucknow

ITA 124/LKW/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 5410 (ITAT-LUCKNOW)
• Duration Of Justice: 11 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-01-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2014-2015
• Appeal Filed On: 21-02-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K R RASTOGI C A S HRI A K BAR
• Keywords: Charitable institution; Condonation of delay
• Section: 11

Judgement Text

I.T.A. NO.124/LKW/2018 ASSESSMENT YEAR:2014-15 1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI A. D. JAIN, VICE PRESIDENT AND SHRI T. S. KAPOOR, ACCOUNTANT MEMBER ITA NO.124/LKW/2018 ASSESSMENT YEAR:2014-15 SHISHU SHIKSHA PRABANDH SAMITI U.P. 1, SARASWATI KUNJ, NIRALA NAGAR, LUCKNOW. PAN:AAAAS 3405 Q VS. CIT (EXEMPTION), LUCKNOW. (APPELLANT) (RESPONDENT) O R D E R PER A. D. JAIN: V.P. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LEARNED CIT (EXEMPTIONS), LUCKNOW DATED 15/12/2017 PASSED U NDER SECTION 119(2)(B). 2. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE TH ROUGH THE MATERIAL PLACED ON RECORD. WE NOTED THAT IN THIS CASE THE A SSESSEE IS AGGRIEVED WITH THE ACTION OF LEARNED CIT (EXEMPTION) IN NOT ALLOWI NG THE BENEFIT OF SECTION 11(2) OF ACT AND REJECTING THE ASSESSEES APPLICATI ON DATED 28/08/2017 FOR CONDONATION OF DELAY IN FILING OF FORM NO. 10 FOR A SSESSMENT YEAR 2014-15. THE LEARNED CIT (EXEMPTION) HAS REJECTED THE ASSESS EES APPLICATION, HOLDING THAT IT WAS NOT A CASE OF FAILURE DUE TO OV ERSIGHT IN THE FILING OF FORM APPELLANT BY SHRI K. R. RASTOGI, C. A. RESPONDENT BY S HRI A. K. BAR, CIT (D.R.) DATE OF HEARING 22/01/2019 DATE OF PRONOUNCEMENT 25 / 01 /201 9 I.T.A. NO.124/LKW/2018 ASSESSMENT YEAR:2014-15 2 10 BUT A DELIBERATE AND CONSCIOUS DELAY IN FILING O F RETURN OF INCOME, GETTING THE ACCOUNTS AUDITED AND FAILURE OF FILING FORM 10. THE ASSESSEE HAD CONTENDED BEFORE THE CIT (EXEMPTION) AS FOLLOWS: (I) FAILURE TO FILE FORM 10 U/S 11(2) WAS INCIDE NTAL AND NOT INTENTIONAL, AS AUDIT WAS DONE LATE, ITR WAS ALSO F ILED LATE. THE ACCOUNTANT WAS NOT ATTENDING OFFICE FOR A LONG TIME AS SUCH FINAL ACCOUNTS WERE PREPARED LATE AND FORM NO. 10 WAS FILED LATE. (II) INVESTMENT OF MONEY WAS MADE IN PRESCRIBED SEC URITIES U/S 11(5) IN TIME AND FUNDS WERE NOT DIVERTED ANYWH ERE. (III) TRUSTEES/MEMBERS OF MANAGING COMMITTEE WERE N OT BENEFITED BY SUCH FAILURE DIRECTLY OR INDIR ECTLY. NO TRUSTEES/ MEMBERS OF MANAGING COMMITTEE WAS GIVEN ANY TYPE OF SALARY/REMUNERATION/LOANS & ADVANCES/ DEPOSITS. (IV) AS THE SOCIETY IS MANAGING HUNDREDS OF PRIMARY SCHOOLS, IT NEEDS FUNDS FOR PAYMENT OF TEACHERS SALARY AND/ OR CONSTRUCTION/REPAIR OF CLASSROOMS ETC, OF FINANCIAL LY WEAK SCHOOLS. FOR THE PURPOSE, ENTIRE INCOME IS NOT SPEN T FULLY IN THE SAME FINANCIAL YEAR IN WHICH IT IS EARNED AN D FUNDS ARE ACCUMULATED FOR MEETING REQUIREMENTS OF EDUCATI ONAL INSTITUTIONS BEING MANAGED BY THE SOCIETY. THE ACCUMULATED FUNDS IS UTILIZED IN SUCCEEDING YEARS. (V) CONDITIONS ARE SATISFIED FOR CONDONATION OF DEL AY IN VIEW OF CBDT CIRCULAR NO. 273 DATED 03.06.1980. 2.1 THE MATTER HAS BEEN DEALT WITH BY HON'BLE SUPRE ME COURT IN THE CASE OF CIT VS. NAGPUR HOTEL OWNERS, ASSOCIATION [2001] 247 ITR 201 (SC). THEREIN THE HON'BLE SUPREME COURT HELD, CONFIRMING THE ORDER OF THE TRIBUNAL THAT THE TIME LIMIT FIXED UNDER RULE 17 OF THE I.T. RULES COULD NOT BE INSISTED UPON BY THE ASSESSING AUTHORITY BECAUSE THE SAID RULES COULD NOT HAVE FIXED A TIME LIMIT FOR FILING AN APPLICATION U /S 11(2) OF THE ACT; THAT EVEN ASSUMING THAT THERE IS NO VALID LIMITATION PRE SCRIBED UNDER THE ACT AND I.T.A. NO.124/LKW/2018 ASSESSMENT YEAR:2014-15 3 THE RULES, IT IS REASONABLE TO PRESUME THAT THE INT IMATION REQUIRED U/S 11 HAS TO BE FURNISHED BEFORE THE ASSESSING AUTHORITY COMPLETES THE CONCERNED ASSESSMENT, SUCH REQUIREMENT BEING MANDATORY; THAT THEREFORE, COMPLIANCE OF THE REQUIREMENT OF THE ACT WILL HAVE TO BE IN TI ME BEFORE THE ASSESSMENT PROCEEDINGS. 2.2 IN CIT-III, PUNE VS. SAKAL RELIEF FUND, [2017 ] 295 CTR 561 (BOMBAY), FOLLOWING NAGPUR HOTEL OWNERS ASSOCIATI ON (SUPRA), IT WAS HELD THAT FOR EXCLUDING AN INCOME OF A CHARITABLE TRUST FROM THE NET OF TAXATION U/S 11, INTIMATION IN FORM 10 IS TO BE FILED WITH T HE ASSESSING OFFICER BEFORE COMPLETION OF THE ASSESSMENT PROCEEDINGS; THAT EVEN IF FORM 10 WAS FILED DURING REASSESSMENT, BENEFIT OF ACCUMULATION U/S 11 (2) WAS AVAILABLE BECAUSE SUCH FILING WOULD BE CONSIDERED WITHIN THE TIME LIMIT FOR FURNISHING RETURN OF INCOME U/S 11(2) OF THE ACT. 3. NO DECISION TO THE CONTRARY HAS BEEN BROUGHT TO OUR NOTICE. 4. THE LEARNED CIT (EXEMPTION) HAS ALSO HELD THAT T HE ASSESSEE SOCIETY DID NOT SPECIFY CONDITION (B) AS CONTAINED IN CBDT CIRCULAR NO. 273 DATED 03/06/1980. AS PER THIS CONDITION, THE FAILURE TO GIVE NOTICE U/S 11(2) OF THE ACT HAS TO BE ONLY DUE TO OVERSIGHT. IN THE PRESEN T CASE, THE ASSESSEE HAS CONTENDED AND IT HAS NOT BEEN DISPUTED THAT IT WAS DUE TO THE AUDIT HAVING BEEN DONE LATE, THAT THE FAILURE TO FILE FORM 10 WI THIN TIME CAME ABOUT, WHICH WAS INCIDENTAL AND NOT INTENTIONAL. FURTHER, IT IS, AGAIN, UNDISPUTED THAT FORM NO. 10 WAS ELECTRONICALLY FILED BY THE AS SESSEE AND THE SAME WAS DULY ACCEPTED BY THE DEPARTMENT. IN ANY CASE, THE FACT REMAINS THAT FORM NO. 10 WAS FILED BEFORE THE ASSESSMENT WAS COMPLETE D, THUS ATTRACTING NAGPUR HOTEL OWNERS ASSOCIATION (SUPRA), DIRECTLY TO THE CASE. 5. IN VIEW OF THE ABOVE, WE DIRECT THE CIT (EXEMPTI ON) TO CONDONE THE DELAY IN FILING OF FORM NO. 10 AND TO CONSIDER THE CLAIM OF THE ASSESSEE FOR I.T.A. NO.124/LKW/2018 ASSESSMENT YEAR:2014-15 4 BENEFIT U/S 11(2) OF THE ACT, IN ACCORDANCE WITH LA W ON AFFORDING DUE AND REASONABLE OPPORTUNITY OF HEARING TO THE ASSESSEE. THE ASSESSEE, NO DOUBT, SHALL CO-OPERATE IN THE PROCEEDINGS BEFORE THE CIT (EXEMPTION). ALL PLEAS AVAILABLE UNDER THE LAW SHALL REMAIN SO AVAILABLE T O THE ASSESSEE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TRE ATED AS ALLOWED FOR STATISTICAL PURPOSES. (ORDER PRONOUNCED IN THE OPEN COURT ON 25/01/2019) SD/. SD/. ( T. S. KAPOOR ) ( A. D. JAIN ) ACCOUNTANT MEMBER VICE PRESIDENT DATED:25/01/2019 *SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW