Sh. Ram Chandra Shiksha Evam Sewa Samiti, Aligarh V. C.I.T., Aligarh

ITA 353/AGR/2011

• Counselvise Citation: 35320314 RSA 2011
• Duration Of Justice: 10 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-08-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 30-07-2012
• Assessment Year: misc
• Appeal Filed On: 12-09-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K SHARMA
• Assessee Lawyers: RAJEEV BANSAL
• Keywords: Opportunity of being heard; Period of limitation; Condonation of delay
• Section: 80G; 12AA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO. 352 & 353/AGRA/2011 SHRI RAM CHANDRA SHIKSHA EVAM SEWA SAMITI VS. COMMI SSIONER OF CHANDAUS, DISTT. ALIGARH. INCOME-TAX, ALIGARH. (PAN : AACAS 3202 M) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI RAJEEV BANSAL, C.A. RESPONDENT BY : SHRI A.K. SHARMA, JR. D.R. DATE OF HEARING : 30.07.2012 DATE OF PRONOUNCEMENT OF ORDER : 09.08.2012 ORDER PER BHAVNESH SAINI, J.M.: BOTH THE APPEALS BY THE ASSESSEE ARE DIRECTED AGAI NST DIFFERENT ORDERS OF LD. CIT, ALIGARH DATED 30.04.2010 REJECTING THE APPLICA TION FOR GRANT OF REGISTRATION U/S. 12AA AND 80G OF THE IT ACT. 2. WE HAVE HEARD THE LD. REPRESENTATIVES OF BOTH TH E PARTIES AND PERUSED THE FINDINGS OF THE LD. AUTHORITIES BELOW. 3. ACCORDING TO THE ASSESSEE, THE IMPUGNED ORDER WA S RECEIVED ON 02.05.2010. HOWEVER, THE APPEALS ARE FILED IN THE OFFICE OF THE TRIBUNAL ON 12.09.2011. ITA NO. 352 & 353/AGRA/2011 2 THEREFORE, BOTH THE APPEALS ARE STATED TO BE TIME B ARRED BY 438 DAYS. ACCORDING TO THE PETITION FOR CONDONATION OF DELAY, THE ASSESSEE EXPLAINED THAT THE ORDER WAS SERVED ON 02.05.2010 AND APPEAL WAS TO BE FILED ON 01.07.2010. THE ASSESSEE WITHIN TIME FILED THE APPEAL BEFORE THE TRIBUNAL ON 25.06.2010 VIDE ITA NO. 316/AGRA/2010. THE COUNSEL FOR THE ASSESSEE FILED S INGLE APPEAL EARLIER AGAINST THE COMMON ORDER OF THE LD. CIT. THE APPEAL OF THE ASSE SSEE IN ITA NO. 316/AGRA/2010, HOWEVER, WAS DISMISSED BY THE TRIBUN AL VIDE ORDER DATED 28.06.2011 CONSIDERING IT TO BE DEFECTIVE APPEAL BE CAUSE THE ASSESSEE SHALL HAVE TO FILE TWO SEPARATE APPEALS. HOWEVER, LIBERTY WAS GIV EN TO THE ASSESSEE TO FILE TWO INDEPENDENT APPEALS AGAINST THE IMPUGNED ORDERS. CO PY OF THE TRIBUNAL ORDER IS FILED ON RECORD. IT WAS EXPLAINED THAT THE ASSESSEE IMMEDIATELY FILED TWO APPEALS BEFORE THE TRIBUNAL. IT WAS UNINTENTIONAL AND BONA FIDE MISTAKE. THE LD. DR DID NOT OBJECT TO THE CONDONATION OF DELAY IN VIEW OF THE A BOVE FACTS. CONSIDERING THE EXPLANATION FOR THE ASSESSEE AND THAT EARLIER, THE ASSESSEE IMMEDIATELY FILED SINGLE APPEAL BEFORE THE TRIBUNAL WITHIN THE PERIOD OF LIM ITATION, IT APPEARS THAT THE ASSESSEE UNKNOWINGLY PROSECUTED ONE APPEAL INSTEAD OF FILING TWO APPEALS AGAINST THE IMPUGNED ORDER. THE ASSESSEE WAS ALSO GIVEN LIB ERTY TO FILE TWO APPEALS BEFORE THE TRIBUNAL. THEREFORE, THE DELAY IN FILING THE AP PEAL COULD BE CONDONED. THE LD. DR HAS NO OBJECTION FOR THE SAME. ACCORDINGLY, WE A RE SATISFIED THAT THE ASSESSEE ITA NO. 352 & 353/AGRA/2011 3 WAS PREVENTED BY SUFFICIENT CAUSE IN NOT FILING THE APPEALS WITHIN THE PERIOD OF LIMITATION. THE DELAY IN FILING THE APPEALS IS COND ONED. 4. THE LD. COUNSEL FOR THE ASSESSEE ON MERIT SUBMIT TED THAT THE ASSESSEE WAS ISSUED A NOTICE DATED 27.04.2010 AND ASSESSEE WAS R EQUIRED TO ATTEND THE OFFICE OF CIT AT ALIGARH AT 11.30 A.M. ON 29.04.2010. THE ASS ESSEE, HOWEVER, RECEIVED NOTICE AT 4.30 P.M. ONLY ON 29.04.2010. THEREFORE, NO COMPLIANCE COULD BE MADE OF THE NOTICE BEFORE THE LD. CIT. AFFIDAVIT IN SUPP ORT OF THE SAME IS FILED OF SHRI NIRBHAYA SINGH, SECRETARY OF THE ASSESSEE-TRUST. TH E AFFIDAVIT IS TAKEN ON RECORD. 5. CONSIDERING THE FACTS NOTED IN THE IMPUGNED ORDE R IN THE LIGHT OF AFFIDAVIT OF THE ASSESSEE, WE ARE OF THE VIEW THAT THE MATTER RE QUIRES RECONSIDERATION AT THE LEVEL OF THE LD. CIT. THE LD. CIT NOTED IN THE IMPUGNED O RDER THAT THE REPORT WAS CALLED FROM ADDL. CIT, RANGE-I, ALIGARH TO ASCERTAIN ABOUT THE GENUINENESS OF THE OBJECTS AND ACTIVITIES CARRIED OUT BY THE ASSESSEE. THE REP ORT WAS SENT BY THE ADDL. CIT MENTIONING THEREIN THAT NO COMPLETE COMPLIANCE IS M ADE BEFORE HIM AND THAT THE SOCIETY APPEARS TO BE REGISTERED IN THE YEAR 2002-0 3 AND NO CLARIFICATION HAS BEEN OFFERED BY THE ASSESSEE. THE LD. CIT, THEREFORE, NO TED THAT THE ADDL. CIT RANGE-I HAS NOT RECOMMENDED FOR REGISTRATION U/S. 12AA AND 80G OF THE IT ACT. ACCORDINGLY, FINAL OPPORTUNITY WAS GIVEN BY GIVING NOTICE TO THE ASSESSEE FOR ITA NO. 352 & 353/AGRA/2011 4 29.04.2010 AND SINCE NO COMPLIANCE WAS MADE OF THIS NOTICE, THEREFORE, BOTH THE APPLICATIONS OF THE ASSESSEE WERE REJECTED. THE AB OVE FACTS WOULD SHOW THAT THE LD. CIT(A) HAS ISSUED NOTICE FOR 29.04.2010 ONLY AND AC CORDING TO THE GROUNDS OF APPEAL OF THE ASSESSEE AND AFFIDAVIT FILED BY THE S ECRETARY, THE CIT ALIGARH ISSUED NOTICE ON 27.04.2010 FOR 29.04.2010, WHICH WAS SERV ED UPON THE ASSESSEE ON 29.04.2010 AT 4.30 P.M.. THEREFORE, THERE WAS NO RE ASON FOR COMPLIANCE OF SUCH NOTICE AT 11.30 A.M. ON 29.04.2010. THE AFFIDAVIT O F THE SECRETARY, THUS, SUPPORTS THE CASE OF THE ASSESSEE THAT IT IS CASE OF DENIAL OF PROPER OPPORTUNITY OF BEING HEARD AT THE STAGE OF REGISTRATION. FURTHER, THE LD . CIT SOLELY RELIED UPON THE REPORT OF ADDL. CIT, RANGE-I, WHICH SHOULD NOT BE MADE SOL E BASIS FOR REJECTING THE CLAIM OF THE ASSESSEE. THE LD. CIT SHOULD APPLY HIS MIND TO THE FACTS AND MATERIAL ON RECORD BY GIVING PROPER OPPORTUNITY OF BEING HEARD TO THE ASSESSEE BEFORE TAKING A DECISION IN THE MATTER, WHICH IN THIS CASE IS CLEAR LY LACKING. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES, WE HOLD THAT THE ASSESSEE HAS NOT BEEN GIVEN REASONABLE OPPORTUNITY OF BEING HEARD BY THE LD. CIT. ACCORDIN GLY, THE IMPUGNED ORDERS ARE SET ASIDE AND THE MATTER IN ISSUE ARE RESTORED TO T HE FILE OF LD. CIT, ALIGARH FOR PASSING THE ORDER AFRESH BY GIVING REASONABLE AND S UFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THE LD. CIT SHALL PASS THE O RDERS ON MERIT GIVING REASONS FOR DECISION IN THE IMPUGNED ORDER. ITA NO. 352 & 353/AGRA/2011 5 6. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (A.L. GEHLOT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE SR. PRIVATE SECRETARY TRUE COPY