Ankleshwar Industrial Development Society, Bharuch V. Income Tax Officer, Ward-1, Bharuch

ITA 434/SRT/2019

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 2419 (ITAT-SURAT)
• Duration Of Justice: 2 year(s) 5 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-03-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 07-03-2022
• Assessment Year: 2010-2011
• Appeal Filed On: 22-09-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: AARTI N. SHAH
• Keywords: Condonation of delay

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER AND DR. ARJUN LAL SAINI, ACCOUNTANT MEMBER ITA No. 434/SRT/2019 (A.Y:- 2010-11) (Hearing in Virtual Court) Ankleshwar Industrial Development, Society. Smt. Jayaben Mody Hospital, Valia Road, GIDC, Ankleshwar, Bharuch-393002. PAN: AAATA 4648 Q Vs Income Tax Officer, Ward-1, Bharuch. Appellant/ Revenue Respondent/ Assessee Assessee by Ms Aarti N. Shah, CA Revenue by Shri H.P. Meena, CIT(DR) Date of hearing 08/03/2022 Date of pronouncement 08/03/2022 PER PAWAN SINGH, JUDICIAL MEMBER: 1. This appeal by the Assessee is directed against order of ld.Commissioner of Income Tax (Appeals)-5, (hereinafter referred as “ld. CIT(A)” Vadodara dated 25.04.2018 for the assessment year 2010-11. The assessee raised following grounds of appeal:- “1. The learned Commissioner of Income Tax (Appeals)-5, Vadodara has erred in law and on the facts of the case in confirming the rejection by the learned Assessing Officer of claim made by the Appellant that donations of Rs. 1,05,02,584/- have been received for specific purpose/activities, and therefore, covered u/s 11(1)(d) of the I.T. Act, 1961 and hence cannot be included in the income of the appellant. 2. The Appellant therefore, prays that donations of Rs. 1,05,02,584/- be held no includible in the income of the Appellant as being received for specific purpose/activities as forming part of the corpus and therefore covered by provisions of Section 11(1)(d) of the I.T. Act, 1961. 3. Your Appellant prays to reserve the right to add, alter, amend and/or withdraw any of the above grounds of appeal.” ITA No.434/SRT/2019 Ankleshwar Industrial Development Society 2 2. On perusal of record, we find s that impugned order was passed by ld. CIT(A) on 25.04.2018, however this appeal was presented before Tribunal on 23.09.2019. Thus, there is a delay of 441 days in filing the appeal before Tribunal. The ld. Authorised representative (AR) of the assessee filed an application for condonation of delay dated 19.09.2019. In the application, the appellant/AR contended that order of ld. CIT (A) was received by assessee on 11.05.2018. The assessee sent the copy of impugned order and challan dated 30.05.2018 for appeal filing fees to her office, accordingly the appeal was prepared and was sent to the office of Shri Kunal K. Gajjar, Chartered Accountant (C.A.), who is having his office in Surat. The appeal paper and challan was sent through courier on 02.06.2018. The assessee in order to know the status of appeal, when inspected website of Income Tax Appellate Tribunal (ITAT), find that no details for the appeal was available. The applicant /AR inquired from Shri Kunal K. Gajjar, CA about filing of appeal. The said Shri Kunal K. Gajjar, CA informed that due to shifting his office from Baranpuri Bhagol to Bhimrad office they forget to file before Tribunal and to inform her office. To support the contents of application, the ld. AR of the assessee has filed her own affidavit narrating similar facts. 3. The ld. AR of the assessee submits that in fact necessary appeal fees of Rs. 500/- was paid on 30.05.2018. The delay in fining the appeal is not intentional ITA No.434/SRT/2019 Ankleshwar Industrial Development Society 3 or deliberate but due to the fact that while shifting the office local CA, it was escaped from their attention and was not filed in time. The appeal was filed immediately on coming to know that no appeal is filing in time. The ld AR for the assessee submits that the assessee would not get any benefit in filing the appeal belatedly, rather there is chance that delay may not be condoned. The ld. AR of the assessee submits that the assessee has good case on merit and is likely to succeed, if opportunity of hearing on merit is given to the assessee. The ld. AR of the assessee submits that this is first such occasion, that she has relied upon the local CA for filing the appeal before Tribunal. The ld AR for the assessee submits that there is sufficient ground for condonation of delay in filing appeal. 4. To support her submission, the ld. AR of the assessee relied upon the decision of Hon’ble Himachal Parades High Court in case of E-Governance Society vs. CIT (Exemption) 102 taxmann.com 222, wherein it was held that when the assessee sent documents to counsel to file appeal, but counsel has not taken steps, delay in filing the appeal was to be condoned. 5. On the other hand, Ld. Senior Departmental Representative (DR) for the Revenue submits that the assessee should be vigilant in filing before the higher authority in time. The appeal could be sent directly to the Tribunal instead of sending to the counsel, who was negligent as alleged. The ld. Sr. DR for the ITA No.434/SRT/2019 Ankleshwar Industrial Development Society 4 revenue submits that the causal approach of the assessee should not be appreciated. 6. We have considered the rival submissions both the parties and has gone through the contents of application for condonation of delay. The main contention of ld. AR of the assessee that she initiated step for filing the appeal in time and remitted necessary orders/documents to local counsel to file before the Tribunal, however the same could not be file as local counsel was busy in shifting their office from one place to another. To support her submission, the ld. AR of the assessee has placed on record, the copy of challan of Rs. 500/- dated 30.05.2018. During the hearing be inquired as to how Rs. 500/- challan is sufficient, the ld. AR of the assessee replied that the total income assessed by Assessing Officer is nill, therefore, the assessee is liable to pay Rs. 500/- as appeal fees. Considering the facts and circumstance of the case and the decision of in case of E-Governance Society vs. CIT(supra), wherein it was held that when the assessee sent documents to counsel to file appeal, but counsel has not taken steps, delay in filing the appeal was to be condoned, though there was some negligence on the part of assessee in following up matter. Thus, in view of the above factual and legal discussions, the delay in filing the appeal is condone. ITA No.434/SRT/2019 Ankleshwar Industrial Development Society 5 7. On merit of the assessee, the ld. AR of the assessee submits that grounds of appeal raised by assessee is squarely covered in her favour by the decision of Tribunal in assessee’s own case in ITA No. 74/SRT/2018 dated 20.10.2021 for A.Y. 2012-13, copy of which is already pleaded on record. The ld. AR of the assessee submits that there is no variation in the facts for the year under consideration. The assessee has received donation from its member for specific purpose/activities as forming part of carpus. 8. On the other hand, the ld. Senior Departmental Representative (Sr. DR) for the Revenue relied upon the orders of the ld. CIT(A). 9. We have considering the rival submissions both the parties and find that on similar grounds of appeal in assessee’s own case for A.Y. 2014-15, this combination by following decision of assessee’s own case in A.Y. 2012-14 in ITA No. 854/AHD/2017/SRT passed followings order.:- “4. We have considered the submission of both the parties and after going through the lower authorities and the order passed by the Co-ordinate Bench of Tribunal in assessee’s own case in ITA No.854/AHD/2017/SRT (supra), we find that there is no variation of facts except addition of figure of disallowances under 11(1)(d) of the Act. We find that on similar facts, the Tribunal in assessee’s own case passed the following order: “11. We have noted above, the donations received from Lupim Ltd., it is discernable that in the receipt issued by the appellant company (paper book pg. 79) it is clear that the donation has ITA No.434/SRT/2019 Ankleshwar Industrial Development Society 6 been received by the assessee company for development and extension of mobile van project approved by National committee u/s. 35AC of the Act. Further, from the copy of the receipt issued to Miraj Imaging Centre Pvt. Ltd. dated 11.05.2011 (assessee paper book pg. 109) it is also clear that the appellant society received corpus fund for development and extension of project and the same was declared as eligible for tax exempt u/s. 80G(5) of the Act. 12. These two sample cases leave no doubt in our mind that the impugned donations were received by the appellant society for a specific purposes/activities and the project was approved by the national committee of Central Govt. u/s. 35AC of the Act. We, therefore, are of the opinion that impugned donations, received by the appellant during the relevant period, have been received for a specific purposes/activities and the same is forming part of corpus fund therefore, covered by provision of s. 11(1)(d) of the Act and hence, the same is exempt and cannot treated as income of the assessee for the relevant period. Our conclusion also gets strong support from the decision of Hon'ble Jurisdictional High Court in the cases of CIT vs. Sthanakvasi Vardhaman Vanik Jain Sangh and CIT Vs. Gujarat Safai Kamdar Vikas Nigam(supra). Finally, we hold that the AO was not correct and justify in dismissing the claim of the assessee and ld. CIT(A) was not also justified and correct in upholding the same and hence, Ground No.1 & 2 of the assessee are allowed and the AO directed to delete the addition as the impugned donations are not includable in the income of the assessee as being received for a specific purpose/activity forming part of corpus and therefore, covered by the provision of s. 11(1)(d) of the Act.” ITA No.434/SRT/2019 Ankleshwar Industrial Development Society 7 5. Considering the aforesaid facts and the decision of the Tribunal in assessee’s own case there is no variation in the facts, therefore, respectfully following the order in assessee’s own case, the grounds of appeal raised by the assessee is allowed with similar observation. 6. In the result, appeal of the assessee is allowed.” 10. Considering the decision of this Tribunal for A.Ys. 2012-13 and 2014-15, wherein no variation of fact is brought to our notice, therefore, following the order of Tribunal in those years, the grounds of appeal raised by the assessee is allowed. 11. In the result, appeal of the assessee is allowed. Order announced on 8 th March, 2022 in the open Court. Sd/- Sd/- (Dr ARJUN LAL SAINI) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER Surat, Dated: 08/03/2022 /SKM* Copy to: 1. Appellant 2. Respondent 3. CIT(A) 4. CIT 5. DR 6. Guard File By order Sr. Pvt. Secretary, ITAT, Surat ITA No.434/SRT/2019 Ankleshwar Industrial Development Society 8 Date Initial Draft order verbally dictated by author (JM) 8/03/2022 Draft placed before author 08/03/2022 Draft proposed & placed before the second member 08/03/2022 Draft discussed/approved by Second Member. 08/03/2022 Approved Draft comes to the Sr.PS/PS 08/03/2022 Kept for pronouncement on 08/03/2022 File sent to the Bench Clerk 08/03/2022 Date on which file goes to the AR /03/2022 Date on which file goes to the Head Clerk. Date of dispatch of Order. Draft dictation sheets are attached