Shree Kotyark Khadayata Samiti, Dist. Gandhinagar V. The DIT(Exemp.), Ahmedabad

ITA 332/AHD/2007

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 8944 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 1 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-02-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 25-02-2010
• Assessment Year: misc
• Appeal Filed On: 19-01-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: GOVIND SINGHAL
• Assessee Lawyers: S N DIVETIA
• Keywords: Charitable institution; Opportunity of being heard; Condonation of delay; Set aside
• Section: 143(3); 12AA; 12

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL : A BENCH : A HMEDABAD (BEFORE HONBLE SHRI G.D. AGRAWAL, VICE-PRESIDENT(A Z) & HONBLE SHRI T.K. SHARMA, J.M.) I.T.A. NO. 332/AHD./2007 SHREE KOTYARK KHADAYATA SAMITI, GANDHINAGAR VS.- DIRECTOR OF INCOME TAX (EXEMPTION), AHMEDABAD (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S.N. DIVETIA RESPONDENT BY : SHRI GOVIND SINGHAL, S R. D.R. O R D E R PER SHRI T.K. SHARMA, JUDICIAL MEMBER : THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE O RDER UNDER SECTION 12AA DATED 12.09.2006 OF LEARNED DIRECTOR OF INCOME TAX(EXEMPT ION), AHMEDABAD GRANTING REGISTRATION UNDER SECTION 12AA TO THE ASSESSEE-TRUST WITH EFFEC T FROM 31.01.2006, I.E. THE DATE OF APPLICATION SUBMITTED TO THE DIRECTORATE. 2. AT THE TIME OF HEARING, ON BEHALF OF ASSESSEE SH RI S.N. DIVETIA APPEARED AND CONTENDED THAT THERE IS A DELAY OF 55 DAYS IN FILING THIS APP EAL. FOR CONDONATION OF DELAY, THE ASSESSEE HAS FILED AN APPLICATION, WHEREIN IT IS STATED THAT THE ORDER OF LD. DIRECTOR OF INCOME TAX (EXEMPTION) WAS COMMUNICATED TO LATE SHRI ASHOK RAMDAS SHAH, G ENERAL CLERK OF THE ASSESSEE-TRUST ON OR ABOUT 26.09.2006 AND THEREAFTER THE APPEAL WAS TO B E PREFERRED ON OR BEFORE 25.11.2006. THIS APPEAL IS FILED ON 19.01.2007. IN THE APPLICATION, IT IS SUBMITTED THAT THE DELAY IN APPEAL IS CAUSED BECAUSE THE SAID SHRI ASHOK RAMDAS SHAH DIED ON 30. 09.2006 ALL OF A SUDDEN AND HE HAD NOT BROUGHT TO THE NOTICE OF THE MANAGEMENT ABOUT THE I MPUGNED ORDER RECEIVED BY HIM. FOR THIS REASON, IN THE APPLICATION A PRAYER IS MADE TO COND ONE THE DELAY. THE LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT THE ASSESSEE-TRUST WAS PREVENTED BY FILING THE APPEAL BECAUSE OF NON- COMMUNICATION OF ORDER BY ITS EMPLOYEE, THEREFORE, THE DELAY OCCURRED FOR FILING THE APPEAL BE CONDONED. 3. SHRI GOVIND SINGHAL, SR. D.R. APPEARING ON BEHAL F OF THE REVENUE HAS NOT OBJECTED TO THE PRAYER OF THE ASSESSEE. 4. AFTER CONSIDERING THE REASONS, WE ARE CONVINCED THAT THERE IS A SUFFICIENT CAUSE FOR THE DELAY, THEREFORE, SMALL DELAY OF 55 DAYS IS CONDONE D AND THE APPEAL OF THE ASSESSEE IS ADMITTED. 2 ITA NO. 332/AHD/2007 5. THE LD. COUNSEL OF THE ASSESSEE, AT THE TIME OF HEARING, DREW OUR ATTENTION TO STATEMENT OF FACTS FILED ALONGWITH THE APPEAL, WHICH READS AS UN DER :- THE APPELLANT IS A PUBLIC CHARITABLE TRUST DULY RE GISTERED UNDER BOMBAY PUBLIC TRUST ACT ON AND FROM 25,9.1952 AT REGD. NO, A/224. THE MAIN OBJECTS OF THE APPELLANT TRUST ARE TO ADMINISTER THE TEMPLE CALLED 'KOTYARK MANDIR' AT VILL. MAHUDI BY ACCEPTING DONATIONS, CHARITY ETC., PROVID ING VARIOUS FACILITIES TO THE VISITORS AT THE TEMPLE. IT ALSO PROVIDES THAT ANY K HADAYATA BANIYA OR KHADAYATA BRAHMIN BELIEVING GOD KOTYARG COULD BECOME MEMBER O F THIS INSTITUTION. THE APPELLANT TRUST IS ADMINISTERED BY A COMMITTEE CONS ISTING OF PRESIDENT, VICE- PRESIDENT, SECRETARIES AND TRUSTEES ELECTED FROM YE AR TO YEAR AS PER THE CONSTITUTION OF THE TRUST. IT ALSO MAINTAINS REGULA R BOOKS OF ACCOUNTS AND GET THE SAME AUDITED BY C.A, AND THE SAME ARE FILED WITH TH E OFFICE OF CHARITY COMMISSIONER YEAR AFTER YEAR. THE APPELLANT TRUST H AS ALSO FILED ITS INCOME-TAX RETURNS REGULARLY FOR LAST MANY YEARS AND EVEN REGU LAR ASSESSMENTS HAVE BEEN COMPLETED U/S,L43(3) HAVE BEEN COMPLETED FROM TIME TO TIME E.G. A.Y. 1996-97 ON 30.11.1998 BY DDIT (EXEMPTION)-1, AHD., WHEREIN THE EXPENDITURE INCURRED FOR THE OBJECTS OF THE TRUST HAVE BEEN ALLOWED TREATING THE FIRM AS DULY REGISTERED UNDER THE ACT. 2. HOWEVER, DURING THE COURSE OF ASSESSMENT PROCEED INGS FOR A.Y. 2004-05, THE ISSUE RELATING TO REGISTRATION OF THE TRUST U/S. 12 AA OF THE ACT CAME UP AND A.O. CALLED FOR NUMBER AND DATE OF REGISTRATION. BUT, SU CH CERTIFICATE WAS NOT AVAILABLE WITH THE PRESENT MANAGEMENT OF THE APPELLANT TRUST SO THAT THEY MADE A FRESH APPLICATION ON 6.2.2006 LOR REGISTRATION U/S.12AA O F THE ACT AS AN ABUNDANT CAUTION. THE DI (EXEM.) CALLED FOR THE REASONS FOR DELAY IN FILING SUCH AN APPLICATION. THE APPELLANT TRUST FURNISHED ITS REPL Y VIDE LETTER DTD. 31.1.2006, WHEREIN IT WAS CLEARLY POINTED OUT THAT THE APPELLA NT TRUST WAS REGISTERED WITH CHARITY COMMISSIONER ON 25.9.1952 AND NO ADVERSE VI EW HAS BEEN TAKEN BY THE ASSESSING AUTHORITY IN THIS REGARD. HOWEVER, DI (EX EM.) HAS CONSTRUED THAT THERE WAS A DELAY OF ABOUT 31 YEARS FOR FILING THE APPLIC ATION FOR REGISTRATION AND THERE WAS NO SUFFICIENT OR ACCEPTABLE CAUSE FOR THE DELAY , EVEN SHRI V.K. SHAH, C.A. AGREED FOR REGISTRATION W.E.F. 31.1.2006. THE APPEL LANT TRUST SUBMITS THAT SHRI V.K. SHAH HAD NOT AGREED TO THE EFFECT THAT REGISTRATION MAY BE ALLOWED PROSPECTIVELY FROM 31.01.2006. HE HAD AGREED SIMPLY TO THE HEARIN G HAVING TAKEN PLACE BEFORE DI(EXEMPTION). HE HAS ALL THROUGH OUT IN HIS LETTER S DATED 17.05.2006, 5.6.2006 TO DIT(E) STATED ABOUT THE CONDONATION OF DELAY. HIS S O-CALLED ADMISSION IS NOT BINDING TO THE APPELLANT TRUST AND IT IS VERY MUCH AGGRIEVED BY IT. 3. THERE IS A DELAY IN PRESENTING THIS APPEAL BEFOR E THE HON'BLE TRIBUNAL. A SEPARATE APPLICATION FOR CONDONATION OF DELAY IS BE ING FILED HEREWITH. 6. AFTER GOING THROUGH THE AFORESAID STATEMENT OF F ACTS, WHEREIN THE LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT THE TRUST HAD NEVER AGREED FOR GRANTING REGISTRATION W.E.F. 31.1.2006. THE LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT SHRI V.K. SHAH APPEARED BEFORE THE LD. DDIT(EXEMPTION) AND AS A MARK OF HAVING ATTENDED TO THE PROCEEDINGS, SHRI SHAH HAD PLACED HIS 3 ITA NO. 332/AHD/2007 SIGNATURE IN THE ORDER SHEET AND NEVER MEANT TO HAV E AGREED TO THE REGISTRATION W.E.F. 31.01.2006. THE LD. D.R. FOR THE REVENUE OBJECTED TO THE CONTEN TION OF THE LD. COUNSEL OF THE ASSESSEE. THE LD. COUNSEL OF THE ASSESSEE FURTHER SUBMITTED THAT IN T HE EARLIER ASSESSMENT YEARS, ASSESSMENTS WERE FRAMED UNDER SECTION 143(3) WHEREIN 25% OF THE GROS S RECEIPT UNDER SECTION 11(1)(A) AND ACCUMULATED DONATION UNDER SECTION 11(1)(D) ARE ALL OWED. IN THIS REGARD, THE LD. COUNSEL DREW OUR ATTENTION TO THE COPY OF ASSESSMENT ORDER UNDER SEC TION 143(3) FOR THE ASSESSMENT YEAR 1995-96. HE FURTHER RELIED ON THE DECISION DATED 29.05.2009 OF THIS TRIBUNAL IN THE CASE OF ADI NEMNATH JAIN VS.- CIT IN ITA NO. 319/AHD/2008, WHEREIN ON SIMILAR FACTS, THE REGISTRATION IS ALLOWED FROM THE DATE OF APPLICATION. 7. HAVING HEARD BOTH THE SIDES, WE HAVE CAREFULLY G ONE THROUGH THE ORDERS OF AUTHORITIES BELOW. WHETHER BEFORE THE LD. DIT(EXEMPTION), THE A SSESSEE AGREED FOR GRANTING REGISTRATION W.E.F. 31.01.2006 NEEDS VERIFICATION AT THE END OF LD. DIT(EXEMPTION). IN CASE ASSESSEE NEVER AGREED THAT THE LD. DIT(EXEMPTION) WILL RE-CONSIDER THE REQUEST OF THE ASSESSEE FOR CONDONATION OF DELAY/ GRANTING OF REGISTRATION RETROSPECTIVELY KEEPING IN VIEW THE DECISION DATED 29.05.2009 IN ITA NO. 319/AHD/2008 CITED BEFORE US. WE, THEREF ORE, SET ASIDE THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS) WITH THE DIRECT ION THAT HE WILL MAKE NECESSARY VERIFICATION AND PASS THE FRESH ORDER UNDER SECTION 12AA OF THE INCOME TAX ACT AFTER PROVIDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 8. IN THE RESULT, FOR STATISTICAL PURPOSES, THE APP EAL FILED BY THE ASSESSEE IS ALLOWED. THE ORDER WAS PRONOUNCED IN THE COURT ON 26.02.201 0 SD/- SD/- (G.D. AGRAWAL) (T.K. SHARMA ) VICE-PRESIDENT (AZ) JUDICIAL MEMBER DATED : 26/ 02 / 2010 COPY OF THE ORDER IS FORWARDED TO : 1) THE ASSESSEE (2) THE DEPARTMENT. 3) CIT(A) CONCERNED, (4) CIT CONCERNED, (5) D.R., ITAT, AHMEDABAD. TRUE COPY BY ORDER DEPUTY REGISTRAR, ITAT, AHMEDABAD LAHA/SR.P.S.