Sri Sri Vyasa Prasanna Raghavendra Charitable Trust, Alappuzha V. The Commissioner of Income Tax, Kottayam

ITA 228/COCH/2009

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 7553 (ITAT-COCHIN)
• Duration Of Justice: 1 year(s) 7 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-12-2010
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 24-04-2009
• Court: TRIBUNAL
• Department Lawyers: T J VINCENT
• Assessee Lawyers: NITHYANANDA KAMATH
• Keywords: Charitable institution; Competent authority; Set aside
• Section: 80G

Judgement Text

IN THE INCOME TAX APPELLAT E TRIBUNAL COCHIN BEN CH, COCHIN BEFORE S/SHRI N.VIJAYAKUMARAN, JM AND SANJAY AR ORA, AM I.T.A. NOS. 228-230/COCH/2009 ASSESSMENT YEARS : 2009-10, 2010-11 & 2011-12 SRI SRI VYASA PRASANNA RAGHAVENDRA CHARITABLE TRUST, NO. 37A, KUNDALLATE HOUSE, S.L.PURAM, MARARIKULAM NORTH PANCHAYATH, CHERTHALA, ALAPPUZHA-688549. [PAN: AACTS 9689R] VS. THE COMMISSIONER OF INCOME-TAX, KOTTAYAM. (ASSESSEE -APPELLANT) (REVENUE-RESPONDENT) ASSESSEE BY SHRI NITHYANANDA KAMATH, CA REVENUE BY SHRI T.J.VINCENT, DR O R D E R PER SANJAY ARORA, AM: THESE ARE A SET OF THREE APPEALS BY THE ASSESSEE-A PPLICANT, I.E., FOR THREE DIFFERENT YEARS, CONTESTING THE DENIAL OF RENEWAL OF THE APPR OVAL U/S. 80G OF THE INCOME-TAX ACT, 1961 ('THE ACT', HEREINAFTER) BY THE COMMISSIONER O F INCOME TAX, KOTTAYAM (CIT FOR SHORT) IN ITS CASE VIDE HIS ORDER DATED 30.1.2009. 2. AT THE VERY OUTSET, IT WAS OBSERVED BY THE BENCH THAT A DELAY OF 512 DAYS MARKS THE ASSESSEES APPEALS. ON BEING QUESTIONED IN THI S REGARD, IT WAS EXPLAINED BY THE LD. AR, THE ASSESSEES COUNSEL, THAT THE ASSESSEE FILED A SINGLE APPEAL (IN I.T.A. NO. 228/COCH/2009), ON THE REJECTION OF ITS APPLICATION FOR RENEWAL OF APPROVAL U/S. 80G, WHICH WAS NOT IN RELATION TO ANY PARTICULAR YEAR, T HOUGH SPECIFIED THE THREE YEARS UNDER APPEAL AS THE IMPUGNED DENIAL WOULD IMPACT IT FOR T HE SAID YEARS. THE SAME WAS IN TIME, HAVING BEEN FILED ON 29.4.2009; THE DATE OF THE COM MUNICATION OF THE ORDER APPEALED AGAINST BEING 25.2.2009. HOWEVER, SUBSEQUENTLY, ON A COMMUNICATION BEING RECEIVED FROM THE REGISTRY OF THE TRIBUNAL, ADVISING IT TO F ILE SEPARATE APPEALS FOR THE THREE YEARS FOR ITA.NOS. 228-230/COCH /2009 2 WHICH IT SOUGHT RELIEF PER ITS APPEAL, IT FILED SEP ARATE APPEALS FOR THE SUBSEQUENT TWO YEARS ONLY ON 29.4.2010. THE APPEALS, AS FILED, ADMITTEDL Y DID NOT BEAR ADDITIONAL FILING FEES, BUT THEN THE SAME IS ONLY A CURABLE DEFECT, SINCE R EMOVED ON 20/9/2010. HENCE THE DELAY; THE RELEVANT FACTS QUA WHICH ARE OTHERWISE BORNE OUT BY THE RECORD. 3.1 ON THE MERITS OF ITS CASE, IT WAS PLEADED BY HI M THAT THE ASSESSEE-TRUST HAD APPLIED FOR AN ADJOURNMENT ON 28/1/2009, THE DATE OF HEARIN G, REQUESTING FOR A FURTHER TIME PERIOD OF THREE WEEKS TO SUBMIT THE REQUIRED INFORMATION A S ITS COUNSEL WAS OUT-OF-STATION ON A PRE-SCHEDULED ASSIGNMENT. HOWEVER, RATHER THAN BEIN G GRANTED AN ADJOURNMENT, IT RECEIVED THE IMPUGNED ORDER, STATING THAT ITS APPLI CATION FOR ADJOURNMENT COULD NOT BE ACCEDED TO AS THE TIME LIMIT FOR THE DISPOSAL OF IT S APPLICATION (FOR GRANT OF RENEWAL OF APPROVAL U/S. 80G(5)(VI) OF THE ACT), WHICH WAS FIL ED ON 14.7.2008, STOOD TO EXPIRE ON 31.1.2009. THE LD. CIT HAS NEITHER DECIDED THE ISS UE ON MERITS NOR GRANTED ITS REQUEST FOR TIME AND, HENCE, THE SAME BE SET ASIDE. 3.2 THE LD. DR, ON THE OTHER HAND, WOULD CONTEN D THAT THE REQUIREMENTS CALLED FOR BY THE LD. CIT, AS LISTED AT PARA 1 OF HIS ORDER, WOUL D SHOW THAT THEY WERE OF REGULAR NATURE, AND WHICH ARE ONLY EXPECTED TO BE WITH THE ASSESSEE , AND FOR WHICH IT STOOD ALLOWED A PERIOD OF TWO WEEKS. THE ASSESSEE WAS WELL AWARE T HAT ITS REQUEST FOR TIME COULD NOT BE ACCEDED TO DUE TO THE TIME LIMITATION ATTENDING ITS APPLICATION. EVEN IF HIS COUNSEL WAS TO BE AWAY ON A PRE-FIXED ASSIGNMENT, HE COULD, IN VIE W OF THE URGENCY, ALTER HIS PROGRAMME OR, IN ANY CASE, MAKE ARRANGEMENTS, SO THAT THE ROU TINE REQUIREMENTS CALLED FOR BY THE LD. CIT STOOD MET. THE QUESTION OF DISPOSAL OF ITS APPL ICATION ON MERITS DID NOT ARISE IN THE ABSENCE OF THE INFORMATION CALLED FOR. 4. WE HAVE HEARD THE PARTIES AND PERUSED THE MATERI AL ON RECORD. AS REGARDS THE CONDONATION, WE FIND MERIT IN THE ASSESSEES CASE I N-AS-MUCH AS THE ORIGINAL APPEAL WAS FILED IN TIME, AND THE NON-DEPOSIT OF THE APPEAL FE ES (FOR THE FOLLOWING TWO YEARS) CAN ONLY BE CONSIDERED AS A DEFECT LIABLE TO BE REMOVE D SUBSEQUENTLY, AS HAS BEEN THE CASE. AS REGARDS THE MERITS OF THE CASE, IT IS APPARENT T HAT THE ASSESSEES APPLICATION HAS NOT BEEN DISPOSED OF ON ITS MERITS, BUT DISMISSED IN LIMINE DUE TO THE FAILURE ON ITS PART IN ITA.NOS. 228-230/COCH /2009 3 FURNISHING THE REQUISITE INFORMATION TO THE COMPETE NT AUTHORITY, WHO REFUSED THE ASSESSEES REQUEST FOR TIME ON ACCOUNT OF TIME LIMI TATION; THE TIME FOR THE DISPOSAL OF THE ASSESSEES APPLICATION EXPIRING EFFECTIVELY ON 30.1 .2009. IN THIS REGARD, THE LD. AR, IN A REJOINDER TO THE ARGUMENTS ADVANCED BY THE LD. DR, TOOK US THROUGH THE RELEVANT RULE, I.E., RULE 11AA, SUB-RULE (6) OF WHICH EXPLICITLY E XCLUDES THE TIME AVAILABLE WITH THE COMMISSIONER FOR PASSING THE ORDER U/S. 80G(5)(VI) IN RESPECT OF TIME TAKEN BY THE APPLICANT IN NOT COMPLYING WITH THE DIRECTIONS UNDE R SUB-RULE (III). AS SUCH, THE APPREHENSION OF THE NON-APPROVAL BECOMING BARRED BY TIME BECOMES MISPLACED, WHERE THE ASSESSEE, AS IN THE PRESENT CASE, HAS SOUGHT AD JOURNMENT IN WRITING AND, FURTHER, IS NOT GUIDED BY ANY ULTERIOR MOTIVE, OF WHICH THERE IS NO WHISPER IN THE PRESENT CASE. UNDER THE CIRCUMSTANCES, WE, THEREFORE, ONLY THINK IT FIT AND PROPER THAT THE MATTER IS RESTORED FOR ALL THE THREE YEARS BACK TO THE FILE OF THE LD. CIT FOR FRESH ADJUDICATION OF THE ASSESSEES APPLICATION(S) ON MERITS, IN ACCORDANCE WITH LAW, P ER A SPEAKING ORDER. THE ASSESSEE SHALL, AS IT IS OBLIGED TO, COOPERATE IN THE MATTER , IN THE ABSENCE OF WHICH THE COMPETENT AUTHORITY WOULD BE AT LIBERTY TO ADOPT THE COURSE A S WARRANTED UNDER LAW. WE DECIDE ACCORDINGLY. 5. IN THE RESULT, ALL THE ASSESSEES APPEALS ARE AL LOWED FOR STATISTICAL PURPOSES. SD/- SD/- (N.VIJAYAKUMARAN) (SANJAY ARORA) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: ERNAKULAM DATED: 21ST DECEMBER, 2010 GJ COPY TO: 1. SRI SRI VYASA PRASANNA RAGHAVENDRA CHARITABLE TR UST, NO. 37A, KUNDALLATE HOUSE, S.L.PURAM, MARARIKULAM NORTH PANCHAYATH, CHERTH ALA, ALAPPUZHA - 688549. 2. THE INCOME-TAX OFFICER, WARD-2, ALAPPUZHA. 3. THE COMMISSIONER OF INCOME-TAX, KOTTAYAM. 4. D.R./I.T.A.T., COCHIN BENCH, COCHIN. 5. GUARD FILE. BY ORDER (ASSISTANT REGISTRAR) ITA.NOS. 228-230/COCH /2009 4