Smt. Baikunthi Devi, Aligarh V. C.I.T., Aligarh

ITA 368/AGR/2012

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 0622 (ITAT-AGRA)
• Duration Of Justice: 6 year(s) 9 month(s) 21 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 16-05-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 22-04-2013
• Assessment Year: misc
• Appeal Filed On: 25-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KK MISHRA
• Keywords: Opportunity of being heard; Period of limitation; Condonation of delay; Bonafide mistake; Set aside
• 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. 368/AGRA/2012 & 28/AGRA/2013 SMT. BAIKUNTHI DEVI EDUCATIONAL TRUST, VS. COMMISSI ONER OF GOPAL GANJ, SARAI LAVARIA, ALIGARH. INCOME-TAX AL IGARH. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI PANKAJ GARGH, ADVOCATE RESPONDENT BY : SHRI K.K. MISHRA, JR. D.R. DATE OF HEARING : 22.04.2013 DATE OF PRONOUNCEMENT OF ORDER : 03.05.2013 ORDER PER BHAVNESH SAINI, J.M.: BOTH THE APPEALS BY THE ASSESSEE ARE DIRECTED AGAI NST THE COMMON ORDER OF LD. CIT, ALIGARH DATED 21.05.2012 REJECTING THE APPLICATION U/S. 12AA AND 80G(5)(VI) OF THE IT ACT. 2. THE ASSESSEE HAS INITIALLY FILED ONE APPEAL IN I TA NO. 368/AGRA/2012 AGAINST THE ABOVE COMMON ORDER. THE LD. COUNSEL FOR THE ASSESSEE, THEREFORE, SUBMITTED THAT ITA NO. 368/AGRA/2012 MAY BE TREATED AS APPEAL FILED AGAINST ORDER PASSED U/S. 12AA OF THE IT ACT. IN VIEW OF TH E STATEMENT OF LD. LD. COUNSEL FOR THE ASSESSEE, SINCE TWO APPEALS SHALL H AVE TO BE FILED SEPARATELY UNDER BOTH THE PROVISIONS IN WHICH THE IMPUGNED ORD ER HAS BEEN PASSED AND ITA NO.368/AGRA/2012 & 28/AGRA/2013 2 NOW THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE APPEAL IN ITA NO. 368/AGRA/2012 MAY BE TREATED AS APPEAL FILED AGAINS T THE ORDER U/S. 12AA OF THE IT ACT. THE ASSESSEE IS PERMITTED TO MAKE SUCH STATEMENT AND APPEAL NO. 368/AGRA/2012 IS TREATED AS APPEAL HAVING BEEN FILE D AGAINST THE IMPUGNED ORDER CHALLENGING THE REJECTION OF APPLICATION U/S. 12AA OF THE IT ACT. THE ASSESSEE IN VIEW OF THE ABOVE TECHNICALITY FILED FR ESH APPEAL AGAINST THE IMPUGNED ORDER REJECTING THE APPLICATION U/S. 80G(5 )(VI) OF THE IT ACT IN ITA NO. 28/AGRA/2013. ACCORDINGLY, THE OFFICE NOTIFIED THAT THE APPEAL IS TIME BARRED BY 182 DAYS. THE LD. COUNSEL FOR THE ASSESSE E SUBMITTED THAT THE ASSESSEE INITIALLY FILED ONE APPEAL UNDER BOTH THE PROVISIONS IN A BONAFIDE MISTAKE AND ON REALIZING THE MISTAKE, THE ASSESSEE HAS FILED SEPARATE APPEAL, THEREFORE, SEEKS CONDONATION OF DELAY IN FILING THE APPEAL NO. 28/AGRA/2013. THE LD. DR HAS NO OBJECTION FOR CONDONATION OF DELA Y IN FILING THE APPEAL BEYOND THE PERIOD OF LIMITATION. CONSIDERING THE EX PLANATION OF THE ASSESSEE WE ARE SATISFIED THAT THE ASSESSEE HAS REASONABLE C AUSE IN FILING THE APPEAL BELATEDLY. THEREFORE, THE DELAY IS CONDONED IN FILI NG THE APPEAL. APPLICATION OF ASSESSEE FOR CONDONATION OF DELAY IS ALLOWED. 3. THE FACTS OF THE CASE ARE THAT THE ASSESSEE FILE D APPLICATIONS IN PRESCRIBED FORM BEFORE THE LD. CIT, SEEKING REGISTR ATION U/S. 12AA AND ITA NO.368/AGRA/2012 & 28/AGRA/2013 3 APPROVAL U/S. 80G(5)(VI) OF THE IT ACT. ACCORDING T O THE LD. CIT, NO CHARITABLE WORK WAS DONE BY THE TRUST DURING THE YEAR. THE ASS ESSEE FILED REPLY ON 16.01.2012 AND FURTHER SHOW CAUSE NOTICE WAS ISSUED ON 07.05.2012, WHICH WAS COMPLIED WITH BY THE ASSESSEE BY FILING THE POI NT WISE REPLY. THE LD. CIT, HOWEVER, DID NOT SATISFY HIMSELF AND FOUND THAT THE CHARITABLE ACTIVITIES OF THE ASSESSEE COULD NOT BE VERIFIED BECAUSE AUDIT REPORT WAS NOT FILED IN PROPER FORMAT. ACCORDINGLY, BOTH THE APPLICATIONS WERE REJ ECTED. 4. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE FIRST NOTICE WAS ISSUED FOR HEARING OF THE ABOVE APPLICATIONS ON 26. 12.2011, WHICH WAS ISSUED BY THE ADDITIONAL CIT, RANGE-I, ALIGARH (PB-1) SEEK ING CERTAIN CLARIFICATIONS, WHICH WERE PROVIDED AND FURTHER EXPLANATION WAS CAL LED BY THE ACIT ON 07.05.2012, WHICH IS ALSO REFERRED TO IN THE IMPUGN ED ORDER (PB-2) AND PB-3 IS THE COPY OF THE ORDER SHEET IN WHICH IT IS CLEAR THAT NO SHOW CAUSE NOTICE WAS ISSUED BY THE LD. CIT, ALIGARH AND ONLY DRAFT O RDER WAS PUT UP FOR HIS SIGNATURE. THEREFORE, THERE IS TOTAL NON-APPLICATIO N OF MIND BY THE LD. CIT AND THE MATTER REQUIRES RECONSIDERATION OF BOTH THE APP LICATIONS. ON THE OTHER HAND, THE LD. DR RELIED UPON THE IMPUGNED ORDER. ITA NO.368/AGRA/2012 & 28/AGRA/2013 4 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND DO NOT APPROVE THE FINDINGS OF THE LD. CIT IN REJECTING THE APPLICATIO NS FOR REGISTRATION AND APPROVAL U/S. 80G OF THE IT ACT. THE FIRST NOTICE I S ISSUED BY THE ADDL. CIT, RANGE-I, ALIGARH ON 26.12.2011, WHICH IS FOLLOWED B Y ANOTHER NOTICE ON 07.05.2012 BY THE ACIT. COPY OF THE ORDER SHEET IS FILED AT PAGE 3 OF THE PAPER BOOK, IN WHICH DRAFT ORDER WAS PUT UP FOR FUR THER ACTION BEFORE THE LD. CIT, ALIGARH ON 07.05.2012. IT IS CLEAR THAT NONE O F THE PROCEEDINGS HAS BEEN CONDUCTED BY THE LD. CIT. ONLY HIS SUBORDINATES HAV E CONDUCTED THE PROCEEDINGS. HOWEVER, UNDER SECTION 12AA OF THE IT ACT, IT IS THE SATISFACTION OF THE LD. COMMISSIONER WHICH IS MANDATORY FOR PASS ING THE ORDER IN THE MATTER AFTER EXAMINING THE OBJECTS OF THE TRUST AND GENUINENESS OF THE ACTIVITIES OF THE ASSESSEE. UNDER SECTION 80G(5)(VI) ALSO, THE LD. COMMISSIONER SHALL HAVE TO GRANT APPROVAL OR REJECT THE APPLICATION AS PER RULES. HIS SUBORDINATES HAVE NO ROLE TO CONSIDER BOTH THE APPLICATIONS AS P ER LAW. SINCE NONE OF THE PROCEEDINGS HAVE BEEN CONDUCTED BY THE LD. CIT, ALI GARH HIMSELF AND NO REASONED ORDER HAS BEEN PASSED IN THE MATTER, THERE FORE, IN OUR VIEW THE MATTER REQUIRES RECONSIDERATION AT THE LEVEL OF THE LD. CI T, ALIGARH. WE, ACCORDINGLY, SET ASIDE THE IMPUGNED ORDER AND RESTORE BOTH THE A PPLICATIONS OF THE ASSESSEE TO THE FILE OF LD. CIT FOR RECONSIDERATION OF THE I SSUE AFRESH IN ACCORDANCE WITH LAW. THE LD. CIT SHALL PASS THE ORDER ON MERIT GIVI NG REASONS FOR DECISION IN ITA NO.368/AGRA/2012 & 28/AGRA/2013 5 THE ORDER AND SHALL CONDUCT PROCEEDINGS HIMSELF AND SHALL GIVE REASONABLE AND SUFFICIENT OPPORTUNITY OF BEING HEARD TO THE ASSESS EE. 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