Hawada and Parab Trust, Surat V. The CIT-II, Surat

ITA 2020/AHD/2015

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 1973 (ITAT-SURAT)
• Duration Of Justice: 3 year(s) 3 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-10-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2015-2016
• Appeal Filed On: 08-07-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: SURESH A. GANDHI
• Keywords: Retrospective amendment; Competent authority; Condonation of delay; Set aside
• Section: 154; 11; 12A

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT , , BEFORE SHRI C.M.GARG, JUDICIAL MEMBER AND SHRI O.P.MEENA, ACCOUNTANT MEMBER . / ITA NO.2020/AHD/2015/SRT / ASSESSMENT YEAR: 2015-16 M/S. HAWADA AND PARAB TRUST, AT POST DASTAN, PALSANA, SURAT. [PAN: AABTH 0920P] VS. COMMISSIONER OF INCOME TAX- II, AYAKAR BHAWAN, SURAT. ( ' / APPELLANT) ( #$' /RESPONDENT) / APPELLANT BY : SHRI SURESH A. GANDHI, C.A /RESPONDENT BY : SHRI O.P. SINGH, SR. D.R /DATE OF HEARING : 23-10-2018 / DATE OF PRONOUNCEMENT : 29-10-2018 / ORDER PER C.M. GARG, JUDICIAL MEMBER: THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-II, SURAT (CI T(A) FOR SHORT) DATED 24.07.2014 FOR THE ASSESSMENT YEAR (A.Y) 2015-16. 2. THE GROUNDS RAISED BY THE ASSESSEE READ AS FOLLO WS: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WE LL AS LAW ON THE SUBJECT, THE LEARNED COMMISSIONER OF INCOME TAX HAS ERRED IN REJECTING THE APPLICATION OF ASSESSEE FOR REGISTRAT ION U/S. 12A(A) OF THE I.T ACT, 1961. 2. IT IS THEREFORE PRAYED THAT ORDER OF CIT, PASSED U/S. 12AA(1)(B)(II) OF THE ACT THE I.T. ACT, 1961 MAY PLEASE BE CANCELL ED AND REGISTRATION 2 ITA NO.2020/AHD/2015/SRT (A.Y: 2015-16) M/S. HAWADA AND PARAB TRUST MAY BE GRANTED OR MATTER MAY BE SET ASIDE TO THE FI LE OF CIT WITH APPROPRIATE DIRECTION. CONDONATION OF DELAY : 3. APPLICATION OF APPELLANT FOR CONDONATION OF DELA Y OF 271 DAYS IN FILING APPEAL BEFORE THE TRIBUNAL. APROPOS THIS APPLICATI ON, WE HAVE HEARD THE ARGUMENTS OF BOTH SIDES AND CAREFULLY PERUSED THE R ELEVANT MATERIAL PLACED ON THE RECORD OF THE TRIBUNAL. THE LD. ASSE SSEES REPRESENTATIVE (AR) SUBMITTED THAT AGAINST THE ORDER OF CIT REJECT ING THE REGISTRATION U/S. 12A OF THE ACT, THE ASSESSEE FILED RECTIFICATION AP PLICATION U/S. 154 OF THE ACT ON 03.09.2014 AND THE SAME WAS ALSO REJECTED ON 27.10.2014. THE ASSESSEE REQUESTED THE LD. CIT(A) TO PROVIDE COPY O F THE REPORT OF INSPECTOR TO VISIT A TRUST ON 30.06.2014 BUT THE SA ME WAS NOT PROVIDED TO THE ASSESSEE DESPITE WRITTEN REQUEST LETTER AND THE REAFTER, APPLICATION UNDER RIGHT TO INFORMATION ACT TILL DATE. THE LD. AR SUBMITTED THAT DUE TO THESE REASONS APPEAL WAS FILED ON 08.07.2015 BY 271 DAYS DELAY AND THEREFORE, DELAY DUE TO THE REASONS BEYOND CONTROL OF THE ASSESSEE MAY KINDLY BE CONDONED AND APPEAL MAY BE ADMITTED FOR H EARING. THE APPLICATION OF CONDONATION OF DELAY HAS BEEN FILED IN THE FORM OF AFFIDAVIT WITH RELEVANT SUPPORTIVE DOCUMENTS. 4. REPLYING TO THE ABOVE, THE LD. DEPARTMENTAL REPR ESENTATIVE (DR) STRONGLY OPPOSED TO THE CONDONATION OF DELAY AND SU BMITTED THAT IT IS THE DUTY OF THE APPELLANT THAT THE APPEAL SHOULD BE FIL ED ON OR BEFORE 3 ITA NO.2020/AHD/2015/SRT (A.Y: 2015-16) M/S. HAWADA AND PARAB TRUST 10.10.2014, WHICH WAS FILED BELATEDLY ON 08.07.2015 WITHOUT ANY GOOD OR BONAFIDE REASON THEREFORE, APPLICATION AS WELL AS A PPEAL OF THE ASSESSEE MAY KINDLY BE DISMISSED IN LIMINE. 5. ON CAREFUL CONSIDERATION OF ABOVE RIVAL SUBMISSI ONS, FIRST OF ALL, WE MAY POINT OUT THAT THE ASSESSEE FILED APPLICATION S EEKING REGISTRATION U/S. 12A OF THE ACT ON 30.01.2014 AND IN RESPONSE THE SA ME, THE LD. CIT DEPUTED INCOME TAX INSPECTOR, WHO VISITED RESIDENCE OF TRUSTEE ON 30.06.2014 AND THE SAID TRUSTEE PROVIDED ALL THE RE LEVANT AND REQUIRED INFORMATION REGARDING CHARITABLE ACTIVITY OF THE TR UST THIS FACT HAS NOT BEEN DISPUTED BY THE LD. CIT AND LD. CIT-DR DURING ARGUM ENT BEFORE US. FROM THE COPY OF THE LETTER DATED 16.11.2015, WE OBSERVE THAT THE ASSESSEE TRUST SUBMITTED AN APPLICATION BEFORE CIT-II, SURAT ON 20.11.2015 SEEKING COPY OF THE INSPECTOR REPORT BUT THE SAME HAS NOT B EEN PROVIDED TO THE ASSESSEE EVEN TILL DATE. THESE FACTS HAVE BEEN STA TED BY SHRI JAGDISHBHAI T. PATEL, IN THE CAPACITY OF TRUSTEE AN D IN HIS AFFIDAVIT HE HAS STATED THE CAUSE OF DELAY IN FILING APPEAL AS NOTED ABOVE AND NO REBUTTAL AFFIDAVIT OR ANY DOCUMENT HAS BEEN PLACED ON BEHALF OF DEPARTMENT THUS, WE SAFELY HOLD THAT THE AFFIDAVIT FILED BY THE TRUS TEE OF APPELLANT HAS REMAIN UN-REBUTTED AND THERE IS NO GOOD CAUSE BEFOR E US, WHICH MAY COMPEL US TO TAKE A DIFFERENT VIEW. THEREFORE, WE HOLD THAT ALL THE TRUSTEES OF THE APPELLANT TRUST RESIDING IN THE VILLAGE AND OBVIOUSLY TIMELY 4 ITA NO.2020/AHD/2015/SRT (A.Y: 2015-16) M/S. HAWADA AND PARAB TRUST COMMUNICATION REGARDING FILING APPEAL COULD NOT BE MADE BY THEM AND SUBSTANTIAL TIME WAS ALSO LAPSED AND WASTED IN THE COLLECTION OF INSPECTORS REPORT, WHO VISITED THE RESIDENCE OF A TRUSTEE ON 30.06.2014. THESE CAUSES ARE BONAFIDE AND SUFFICIENT TO ESTABLISH THAT THE DELAY CAUSED IN FILING BEFORE THE TRIBUNAL WAS DUE TO THE REASONS BEYOND CONTROL OF THE ASSESSEE AND THEREFORE, WE DEEM IT NECESSARY AND PROPER TO CONDONE THE DELAY OF 271 DAYS IN FILING APPEAL BEFO RE THE TRIBUNAL AND WE HOLD SO. ACCORDINGLY, APPLICATION SEEKING CONDONAT ION OF DELAY IS ALLOWED AND APPEAL OF THE ASSESSEE IS TREATED AS FILED WITH OUT PRESCRIBED TIME LIMIT AND THE SAME IS ADMITTED FOR HEARING ON MERITS. GROUNDS OF APPELLANT ON MERITS: 6. WE HAVE HEARD THE ARGUMENTS OF BOTH SIDES AND CA REFULLY PERUSED THE RELEVANT MATERIAL PLACED ON THE RECORD OF THE T RIBUNAL. THE LD. AR SUBMITTED THAT THE LEARNED COMMISSIONER OF INCOME T AX HAS ERRED IN REJECTING THE APPLICATION OF ASSESSEE FOR REGISTRAT ION U/S. 12A(A) OF THE I.T ACT, 1961. HE FURTHER SUBMITTED THAT THE ORDER OF CIT, PASSED U/S. 12AA(1)(B)(II) OF THE ACT THE I.T. ACT, 1961 MAY PL EASE BE CANCELLED AND REGISTRATION MAY BE GRANTED OR MATTER MAY BE SET AS IDE TO THE FILE OF CIT WITH APPROPRIATE DIRECTION. THE LD. AR ALSO SUBMITTED THAT AFTER REJECTION OF APPLICATION OF THE ASSESSEE FOR GRANT OF REGISTR ATION U/S. 12A OF THE ACT BY THE LD. CIT-II BY ORDER DATED 24.07.2014, THE AS SESSEE FILED ANOTHER 5 ITA NO.2020/AHD/2015/SRT (A.Y: 2015-16) M/S. HAWADA AND PARAB TRUST APPLICATION, WHICH WAS ALLOWED BY THE COMPETENT AUT HORITY/CIT-II, SURAT BY PASSING ORDER DATED 09.09.2015 AND THUS, REGISTRATI ON U/S. 12A OF THE ACT HAS BEEN GRANTED TO THE ASSESSEE. HE FURTHER CONTEN DED THAT BUT AFTER THE DISMISSAL APPLICATION SEEKING REGISTRATION U/S. 12A OF THE ACT BY IMPUGNED ORDER DATED 24.07.2014 THE ASSESSEE WAS DENIED BENE FIT OF S. 11 OF THE ACT BY THE ASSESSING OFFICER (AO), WHICH IS CREATIN G HARDSHIP FOR THE APPELLANT TRUST THEREFORE, APPEAL OF THE ASSESSEE M AY KINDLY BE ALLOWED BY ALLOWING REGISTRATION U/S. 12A OF THE ACT FROM T HE DATE OF APPLICATION. 7. REPLYING TO THE ABOVE, THE LD. DR SUBMITTED THAT DESPITE DUE OPPORTUNITY WAS GIVEN BY THE LD. CIT-II AND SERVICE OF NOTICES FOR THE HEARING FIXED ON 31.05.2014 AND 26.06.2014 THE ASSE SSEE DID NOT SUBMIT ANY REPLY AND COMPLIED WITH THE NOTICES IN ANY MANN ER. IN THIS SITUATION, THE LD. LD. CIT-II HAD NO OPTION BUT TO DISMISS APP LICATION OF THE ASSESSEE. THE LD. DR ALSO SUBMITTED THAT ONCE THE ASSESSEE HA S GRANTED REGISTRATION/S. 12A OF THE ACT W.E.F 09.09.2015 THE N, THIS APPEAL BECOME INFRUCTUOUS AS DOUBLE REGISTRATION CANNOT BE GRANTE D TO THE ASSESSEE WITH RETROSPECTIVE EFFECT. 8. ON CAREFUL CONSIDERATION OF ABOVE RIVAL SUBMISSI ONS, UNDISPUTEDLY AND ADMITTEDLY THE ASSESSEE HAS GRANTED REGISTRATIO N U/S. 12A OF THE ACT BY THE COMPETENT AUTHORITY, WHICH IS STILL IN FORCE AND IN EXISTENCE. FROM CAREFUL PERUSAL OF THE IMPUGNED ORDER, WE CLEARLY O BSERVE THAT THE 6 ITA NO.2020/AHD/2015/SRT (A.Y: 2015-16) M/S. HAWADA AND PARAB TRUST ASSESSEE DID NOT COMPLY WITH THE NOTICES ISSUED AND SERVED ON IT FOR THE HEARING ON 31.05.2014 AND 26.06.2014 THEREFORE, THE LD. CIT-II HAD NO OPTION BUT TO DISMISS THE APPLICATION IN ABSENCE OF ENGLISH TRANSLATION OF THE OBJECTS OF THE TRUST AND OTHER SUPPORTING EVIDE NCES. WE ARE UNABLE TO SEE ANY VALID REASON TO INTERFERE WITH THE SAME ESP ECIALLY WHEN THE ASSESSEE TRUST HAS GRANTED REGISTRATION U/S. 12A OF THE ACT ON 09.09.2015 BY THE LD. CIT-II, SURAT. CONSEQUENTLY, GROUNDS OF THE ASSESSEE BEING DEVOID OF MERITS ARE DISMISSED. 9. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 2 9 TH OCTOBER, 2018. / SURAT ; DATED : 29 TH OCTOBER, 2018 EDN # & / COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT ; 2. / THE RESPONDENT ; 3. $ ( ) / THE CONCERNED CIT(A); 4. THE CONCERNED PRL. CIT; 5. , , / DR, ITAT, SURAT; 6. / GUARD FILE . // TRUE COPY // SD/- SD/- ( ) ( O.P.MEENA ) / ACCOUNTANT MEMBER ( ) (C.M.GARG) /JUDICIAL MEMBER