Haldiram Education Society, New Delhi V. DIT(E), New Delhi

ITA 3946/DEL/2011

• Counselvise Citation: [2011] 119 COUNSELVISE.COM (IT) 7059 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-10-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: misc
• Appeal Filed On: 26-08-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SALIL MISHRA
• Assessee Lawyers: SHRIV RAJA KUMAR
• Section: 80G; 12A; 12AA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C DELHI BEFORE SHRI C.L. SETHI AND SHRI K.G. BANSAL ITA NO. 3946(DEL)/2011 ASSESSMENT YEAR: N.A. HALDIRAM EDUCATION SOCIETY, D IRECTOR OF INCOME-TAX (E), B-1/H-8, MOHAN COOPERATIVE VS. AAYKA R BHAWAN, 3 RD FLOOR, INDUSTRIAL ESTATE, MATHURA ROAD, D ISTT. CENTRE, LAXMI NAGAR, NEW DELHI. DELHI. (APPELLANT) (RESPON DENT) APPELLANT BY : SHRI K. SAMPATH, ADVOCATE & SHRIV. RAJA KUMAR, ADVOCATE RESPONDENT BY: SH RI SALIL MISHRA, SR. DR DATE OF HEA RING : 27.10.2011 DATE OF PRONOUNCEMENT: 28.10.2011. ORDER PER K.G. BANSAL : AM THE ONLY SUBSTANTIVE GROUND TAKEN IN THIS APPEAL I S THAT THE LD. DIRECTOR OF INCOME-TAX (E) ERRED IN REFUSING THE APPROVAL TO THE ASSESSEE U/S 80G OF THE INCOME-TAX ACT, 1961 (THE ACT FO R SHORT). 1.1 THE APPEAL WAS BARRED BY LIMITATION. THEREFORE , IT WAS ACCOMPANIED BY AN APPLICATION FOR CONDONATION OF DELAY. IT IS MENTIONED THAT THE ORDER WAS RECEIVED BY THE ASSESSEE ON 28.03.2011, THER EFORE, THE APPEAL WAS TO BE FILED ON OR BEFORE 27.05.2011. HOWEVER, THE APPE AL HAS ACTUALLY BEEN ITA NO.3946(DEL)/2011 2 FILED ON 26.08.2011. THUS, THE APPEAL IS LATE BY 91 DAYS. THE FACTS IN THIS CONNECTION ARE THAT THE ASSESSEE HAD PAID APPE AL FEES OF RS. 500/- ON 19.04.2011. THE COUNSEL PREPARED THE APPEAL ON 2 5.04.2011. HOWEVER, HIS CLERK FAILED TO FILE THE APPEAL, LEADING TO THE DELAY. AN AFFIDAVIT DATED 06.09.2011 FROM SHRI KUNDAL LAL, EMPLOYEE OF THE COUNSEL OF THE ASSESSEE HAS ALSO BEEN FILED TO THE EFFECT THAT THE APPEAL WAS PREPARED IN THE OFFICE ON 25.04.2011. THEREAFTER, THE APPEAL PAPERS W ERE HANDED OVER TO HIM. THE APPEAL PAPERS WERE MISPLACED, A FACT WHICH C AME TO NOTICE WHEN THE ASSESSEE WANTED TO MAKE AN APPLICATION FOR EARLY FIXATION OF HEARING. THE DELAY IS ON ACCOUNT OF INADVERTENCE. THE APPLICAT ION WAS NOT OPPOSED BY THE LD. DR. ON CONSIDERING THE FACTS, IT IS SE EN THAT THE DELAY IS ON ACCOUNT OF MISTAKE ON THE PART OF THE EMPLOYEE OF THE COUNSEL. IN FACT, THE FILING FEES HAD BEEN PAID WELL WITHIN TIME, WHICH SHOWS THE CLEAR INTENTION THAT THE ASSESSEE WANTED TO FILE THE APPEAL. IN THESE FACTS, WE ARE OF THE VIEW THAT IT IS A FIT CASE FOR CONDONATION OF D ELAY. ACCORDINGLY, THE DELAY IS CONDONED. 2. OUR ATTENTION HAS BEEN DRAWN TOWARDS PARAGRA PH NO. 4 OF THE IMPUGNED ORDER, IN WHICH IT HAS BEEN MENTIONED THAT LAND HAS BEEN ALLOTTED TO THE ASSESSEE-SOCIETY BY NOIDA FOR RUNNING THE EDUCATIONAL INSTITUTION. ITA NO.3946(DEL)/2011 3 THUS, THE ASSESSEE HAS NOT STARTED ANY CHARITABL E ACTIVITY TO ACHIEVE ITS GOAL AND IT IS ENGAGED ONLY IN THE PROCESS OF G ETTING VARIOUS APPROVALS FOR THIS PURPOSE. THEREFORE, IT IS NOT ASCERTAINABLE WHETHER THE SOCIETY WILL BE ABLE TO RUN THE SCHOOL IN NEAR FUTURE FOR WHIC H IT HAS BEEN CREATED. NO REQUEST HAS ALSO BEEN MADE TO ANY COMPETENT AUTHO RITY TO PERMIT THE ASSESSEE TO OPEN ANY SCHOOL NOR ANY ATTEMPT HA S BEEN MADE IN ANY OTHER MANNER TO PURSUE THE OBJECT. THEREFORE, RELYING ON THE DECISION IN THE CASE OF SELF EMPLOYEES SERVICE TRUST VS. CIT, 247 ITR 18 (KER.) AND AMAN SHIV MANDIR TRUST (REGD.) VS. CIT, 296 ITR 41 5, THE APPROVAL HAS BEEN REFUSED. 2.1 THE LD. COUNSEL ALSO DREW OUR ATTENTION TO T HE ORDER OF THE TRIBUNAL IN THIS CASE PASSED ON 18.05.2009 IN ITA NO. 337 2(DEL)/2008, A COPY OF WHICH HAS BEEN PLACED IN THE PAPER BOOK ON PAGE N OS. 154 TO 158. IN PARAGRAPH NO. 4, IT IS MENTIONED THAT A PIECE OF LAND HAD BEEN ALLOTTED TO THE ASSESSEE IN INSTITUTIONAL AREA, NOIDA FOR RUNNING A SENIOR SECONDARY SCHOOL. A LEASE DEED HAS ALSO BEEN SIGNED BETW EEN THE ASSESSEE AND NOIDA. THESE DOCUMENTS WERE NOT PRODUCED BEFOR E THE DIT(E). THESE DOCUMENTS DO INDICATE THAT STEPS ARE BEING TAK EN FOR SETTING UP THE EDUCATIONAL INSTITUTION. IT IS FURTHER MENTIONED THAT THE CASES RELIED UPON ITA NO.3946(DEL)/2011 4 BY THE LD. DIT(EXEMPTION) PERTAIN TO REGISTRATI ON OF AN INSTITUTION U/S 12A OF THE ACT. IN THIS CASE, REGISTRATION HAS ALREA DY BEEN GRANTED TO THE ASSESSEE ON 30.04.2003, THEREFORE, THESE CASES MAY NOT BE RELEVANT FOR GRANTING APPROVAL U/S 80G. IN VIEW OF THE ADDI TIONAL EVIDENCE FILED BEFORE THE TRIBUNAL, THE MATTER WAS RESTORED TO T HE FILE OF THE DIT(E) FOR CONSIDERING THE WHOLE OF THE EVIDENCE FOR THE PU RPOSE OF DISPOSING OFF THE APPLICATION AS PER LAW. THE IMPUGNED ORDER HAS BE EN PASSED IN PURSUANCE OF THIS ORDER. 2.2 THE CASE OF THE LD. COUNSEL IS THAT EVEN NOW, THE LD. DIT(E) HAS RELIED ON THE DECISION RELATING TO REGISTRATION OF AN INSTITUTION. IN THIS CASE, THE INSTITUTION STANDS REGISTERED AND THE ASSESSEE HAS ALREADY MOVED TOWARDS SETTING UP OF THE INSTITUTION BY TA KING LAND ON LEASE. FURTHER, THERE IS NOTHING IN LAW THAT APPROVAL MUS T BE TAKEN FROM ANY AUTHORITY FOR RUNNING THE SCHOOL OR ACTUALLY RUN NING THE SCHOOL BEFORE THE GRANT OF APPROVAL. EVEN IN THIS CONNECTION, THE ADMITTED FACT IS THAT THE ASSESSEE-SOCIETY IS IN THE PROCESS OF GETTING APPRO VAL. 2.3 IN REPLY, THE LD. DR RELIED ON PARAGRAPH NO. 4 OF THE ORDER OF THE LD. DIT(E), WHICH HAS ALREADY BEEN SUMMARIZED BY U S. ITA NO.3946(DEL)/2011 5 3. WE HAVE CONSIDERED THE FACTS OF THE CASE AND SUBMISSIONS MADE BEFORE US. THE FACTS WHICH EMERGE ARE THAT THE AS SESSEE-SOCIETY HAS BEEN REGISTERED U/S 12AA ON 30.04.2003. ITS APPLICATIO N FOR APPROVAL U/S 80G WAS EARLIER REJECTED BY THE LD. DIT(E) ON 13.10.2 008. HOWEVER, THAT ORDER DID NOT FIND FAVOUR WITH THE TRIBUNAL AS THE MATTE R WAS RESTORED TO HIS FILE TO CONSIDER THE MATTER IN THE LIGHT OF PROVISIONS CONTAINED IN SECTION 80G AND NOT U/S 12AA. HE WAS ALSO DIRECTED TO TAKE I NTO CONSIDERATION THE EVIDENCE REGARDING THE LEASE OF LAND. HOWEVER, IT IS FOUND THAT HE AGAIN RELIED ON THE DECISION U/S 12AA FOR GRANTING AP PROVAL U/S 80G. THERE IS NO EVIDENCE ON RECORD THAT THE REGISTRATION GRANTE D U/S 12AA HAS BEEN WITHDRAWN. ADMITTEDLY, THE OBJECTS ARE CHARITABL E IN NATURE AND THE SOCIETY STANDS REGISTERED U/S 12AA. IN THESE CIRCUMSTANC ES, THERE IS NOTHING IN LAW ON THE BASIS OF WHICH THE LD. DIT(E) COULD R EFUSE APPROVAL TO THE ASSESSEE. THEREFORE, HIS DECISION IS SET ASIDE AND HE IS DIRECTED TO GRANT APPROVAL TO THE ASSESSEE. 4. IN THE RESULT, THE APPEAL IS ALLOWED. SD/- SD/- (C.L. SETHI) (K.G.BANSAL) JUDICIAL MEMBER ACCOUNTANT MEMBER SP SATIA ITA NO.3946(DEL)/2011 6 COPY OF THE ORDER FORWARDED TO:- HALDIRAM EDUCATION SOCIETY, NEW DELHI. DIT(E), NEW DELHI. A.O. CIT THE DR, ITAT, NEW DELHI. ASSISTANT REGISTRAR.