Arya Samaj Trust, Kapurthala V. The Commissioner of Income Tax (Exemption), Chandigarh

ITA 169/ASR/2016

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 0751 (ITAT-AMRITSAR)
• Duration Of Justice: 2 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: misc
• Appeal Filed On: 22-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A N MISRA
• Assessee Lawyers: J S BHASIN
• Keywords: Principle of natural justice; Condonation of delay
• Section: 12AA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. A.D. JAIN, JUDICIAL MEMBER AND SH. T.S. KAPOOR, ACCOUNTANT MEMBER ITA NO.169(ASR)/2016 PAN: AADTA9351M ARYA SAMAJ TRUST, VS. COMMISSIONER OF INCOME TAX (E), RAILWAY ROAD, CHANDIGARH. KAPURTHALA. (APPELLANT) (RESPONDENT) APPELLANT BY: SH. J.S. BHASIN, ADVOCATE RESPONDENT BY: SH. A.N. MISRA, DR DATE OF HEARING: 25/05/2016 DATE OF PRONOUNCEMENT: 26/05/2016 ORDER PER A.D. JAIN, JM THIS IS THE ASSESSEES APPEAL AGAINST THE ORDER, D ATED 27.07.2015, PASSED BY THE LD. COMMISSIONER OF INCOME TAX (EXEMP TIONS), CHANDIGARH, WHEREIN THE ASSESSEE HAS TAKEN THE FOLL OWING GROUNDS: 1. THAT THE LD. CIT(E) HAS MISDIRECTED HIMSELF IN LAW AND ON FACTS IN ARBITRARILY REJECTING THE ASSESSEES APPLI CATION FOR GRANT OF REGISTRATION UNDER SECTION 12AA. 2. THAT THE LD. CIT(E) HAS ERRED TO HOLD THAT THE ASSESSEES TRUST DEED DID NOT CONTAIN A DISSOLUTION CLAUSE, WI THOUT EVEN CONFRONTING THE ASSESSEE ON THIS POINT. 3. THAT THE IMPUGNED ORDER IS ALSO NOT SUSTAINABLE INASMUCH AS, IT WAS PASSED IN VIOLATION OF THE SACRED PRINCI PLES OF NATURAL JUSTICE WHEN THE INFERENCES DRAWN WERE NEIT HER CONFRONTED NOR DISCUSSED WITH THE REPRESENTATIVE OF THE APPELLANT TRUST. ITA NO.160(ASR)/2016 2 2. IT WAS NOTICED THAT THERE WAS A DELAY OF 167 DAY S IN FILING THE APPEAL BEFORE THE TRIBUNAL. THE ASSESSEE HAS FILED AN APPLICATION ALONGWITH AN AFFIDAVIT FOR CONDONATION OF DELAY IN FILING THE APPEAL BEFORE THE TRIBUNAL. 2. THE LD. COUNSEL FOR THE ASSESSEE, SH. J.S. BHASI N, ADVOCATE, ARGUED THAT THE APPEAL COULD NOT BE FILED IN TIME DUE TO THE ILLNESS OF THE FOUNDER MEMBER OF THE TRUST, SH. KAPUR CHAND GARG, WHO REMAINED CONFINED TO BED FOR ALMOST SIX MONTHS. TO THIS EFF ECT, A CERTIFICATE ISSUED BY THE DOCTOR DATED 21.03.2016 HAS ALSO BEEN SUBMIT TED, WHICH IS PLACED ON RECORD. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED AN AFFIDAVIT IN SUPPORT OF HIS PLEADINGS. THE SAID AFFIDAVIT FOR THE SAKE OF CLARITY IS REPRODUCED AS UNDER: AFFIDAVIT I KAPUR CHAND GARG, SON OF LATE SH. DES RAJ GARG, R /O 272 ASHOK VIHAR, KAPURTHALA, DO HEREBY SOLEMNLY AFFIRM AND DE CLARE AS UNDER: 1. THAT BESIDES BEING THE FOUNDER MEMBER, I AM ALSO TH E PRESIDENT OF ARYA SAMAJ TRUST, RAILWAY ROAD, KAPURT ALA. ALTHOUGH, I AM ABOVE 80 YEARS OF AGE, I HAD BEEN PE RSONALLY PURSUING THE MATTER OF TRUSTS REGISTRATION WITH TH E CIT(E), CHANDIGARH. 2. THAT THE ORDER OF CIT(E) CHANDIGARH DATED 27.07.201 5, REJECTING THE ASSESSEES APPLICATION, WAS RECEIVED BY ME ON 03.08.2015. SINCE, NO REGULAR COUNSEL WAS ENGAGED E ARLIER, ON RECEIPT OF THIS ORDER, I APPROACHED A LOCAL COUN SEL AT KAPURTHALA, WHO SIMPLY INFORMED THAT AN APPEAL COUL D BE PREFERRED WITHIN 60 DAYS TO TRIBUNAL, FOR WHICH HE SUGGESTED TO ENGAGE A COUNSEL AT JALANDHAR. NOW WHILE, I WAS STILL LOOKING FOR A COUNSEL TO BE APPOINTED FOR FURTHER COURSE OF ACTION, ON 16 TH AUGUST, 2015, WHILE AT HOME, I SUDDENLY HAD A FALL WHEN I SLIPPED DOWN THE STAIR, AND THUS SUS TAINED ITA NO.160(ASR)/2016 3 INJURY IN MY SPINE AND LEFT LEG. ALREADY CAUGHT WIT H OLD AGE PROBLEMS OF BAD KNEES AND ENLARGED PROSTATE, AFTER THIS INCIDENT, I WAS CONFINED TO BED FOR ALMOST SIX MON THS, WHILE UNDERGOING TREATMENT OF A SOCIAL DOCTOR NAMELY DR. JASWANT SINGH THIND. ORTHO SURGEON, PROP. J.J. TRAUMA CENTR E & THIND HOSPITAL, AT KAPURTHALA. MEDICAL CERTIFICATE ISSUED BY DR. J.S. THIND IS ENCLOSED IN ORIGINAL. AMIDST ALL SUCH CONSTRAINTS AND HANDICAPS, I WAS RE MAINED CUT OF FROM ALL ACTIVITIES OF TRUST AND IT WAS ONLY SOMEWHERE THE MID MARCH, 2016, AFTER I RECOUPED OF THE ABOVE INJURY AND RE-ASSOCIATED HIMSELF WITH THE TRUST ACTIVITIES THAT I RECALLED THAT THE ORDER OF CIT(E), TOO WAS TO BE APPEALED AGAINST. IMMEDIATELY THEREAFTER, THE STEPS TO FILE APPEAL WERE INITIATED AND AFTER GATHERING RELEVANT DOCUMENTS F ROM THE RECORDS OF THE TRUST, IT FINALLY CAME TO BE FILED O N 22.03.2016, THROUGH MR. J.S. BHASIN, ADVOCATE AT JALANDHAR. 3. THAT THE DELAY CAUSED UNDER ABOVE STATED CIRCUMSTANCES, IS UNINTENDED WITHOUT MALAFIDE AND W AS NOT TO BENEFIT OF THE ASSESSEE IN ANY MANNER AND IS BEI NG SOUGHT TO BE CONDONED. SD/- (DEPONENT) IN VIEW OF THE ABOVE, THE LD. COUNSEL FOR THE ASSE SSEE PRAYED FOR CONDONATION OF DELAY OF 167 DAYS IN FILING THE AP PEAL. 3. THE LD. DR, ON THE OTHER HAND, OPPOSED THE ADMIS SION OF THE APPEAL AND ARGUED THAT THE DELAY BE NOT CONDONED. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. THE EXPLANATION SUBMITTED BY THE LD. COUNSE L FOR THE ASSESSEE WAS FOUND TO BE SUFFICIENT AND BONAFIDE AND WAS NOT A D ELIBERATE DELAY. HE HAS ALSO PLACED RELIANCE ON THE FOLLOWING DECISIONS IN SUPPORT OF HIS CASE: I) COLLECTOR, LAND ACQUISITION VS. MSTKATIJI & OTH ERS 167 ITR 471(SC) ITA NO.160(ASR)/2016 4 II) VEDABAI ALIAS VIJAYANATABAI BABURAO PATIL VS. SHANTARAM BABURAO & OTHERS, 253 ITR 798 (SC), WHEREIN IT HAS BEEN HELD THAT COURT HAS TO EXERCISE THE DISCRETION ON THE FACTS OF EACH CASE KEEPING IN MIND THAT IN CONSTRUING THE EX PRESSION SUFFICIENT CAUSE THE PRINCIPLE OF ADVANCING SUBST ANTIAL JUSTICE IS OF PRIME IMPORTANCE AND IT SHOULD RECEIV E LIBERAL CONSTRUCTION. 4.1. IN VIEW OF THE FACTS ON RECORD AND THE EXPLANA TION SUBMITTED BY THE LD. COUNSEL FOR THE ASSESSEE AND THE DECISIONS OF T HE HONBLE SUPREME COURT (SUPRA) REFERRED TO, THE DELAY IN FILING THE APPEAL BEFORE THE TRIBUNAL IS CONDONED AND APPEAL OF THE ASSESSEE IS ADMITTED FOR ADJUDICATION. 5. THE LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT WHILE REJECTING THE ASSESSEES APPLICATION FOR GRANT OF REGISTRATION UN DER SECTION 12AA, THE LD. CIT(E), CHANDIGARH HAS ERRED TO HOLD THAT THE ASSESSEES TRUST DEED DID NOT CONTAIN A DISSOLUTION CLAUSE, WITHOUT EVEN CONFRONTING THE ASSESSEE ON THIS POINT. HE, THEREFORE, SUBMITTED TH AT SINCE THE LD. CIT(E), HAS FAILED TO CONFRONT THE ISSUE OF DISSOLUTION CLA USE TO THE ASSESSEE, THE SAME MAY REMITTED TO HIS FILE FOR FRESH ADJUDICATIO N. 6. ON THE OTHER HAND, LD. DR RELIED ON THE IMPUGNED ORDER. 7. HAVING HEARD THE RIVAL CONTENTIONS IN THE LIGHT OF THE MATERIAL AVAILABLE ON RECORD, WE ARE OF THE VIEW THAT SINCE THE LD. CIT(E) HAS NOT CONFRONTED THE ASSESSEE ON THE POINT OF DISSOLUTIO N CLAUSE, IT REQUIRES TO BE SET ASIDE AND RESTORED TO THE FILE OF THE LD. CI T(E) FOR FRESH ADJUDICATION AFTER CONFRONTING THE DISSOLUTION CLAUSE TO THE ASS ESSEE. THE ASSESSEE IS ALSO DIRECTED TO CO-OPERATE WITH THE LD. CIT(E) IN THE FRESH PROCEEDINGS ITA NO.160(ASR)/2016 5 AND PRODUCE NECESSARY DOCUMENT/EVIDENCE FOR GRANT O F REGISTRATION U/S 12AA OF THE ACT. 8. IN VIEW OF THE ABOVE, THE ISSUE IN DISPUTE IS RE STORED TO THE FILE OF THE LD. CIT(E), CHANDIGARH. 9. IN THE RESULT, THE APPEAL IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 26/05/ 2 016. SD/- SD/- (T.S. KAPOOR) (A.D. JAIN) ACCOUNTANT MEMBER JUDICIAL MEMBER /SKR/ DATED: 26/05/2016 COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE: ARYA SANAJ TRUST, KAPURTHALA. 2. THE CIT (E), CHANDIGARH. 3. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER