Dr. Bhim Rao Ambedkar Educational Society, Lucknow V. Chief Commissioner of Income Tax, Lucknow

ITA 436/LKW/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 100489 (ITAT-LUCKNOW)
• Duration Of Justice: 6 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-12-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 15-12-2015
• Assessment Year: misc
• Appeal Filed On: 30-06-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Period of limitation; Competent authority
• Section: 12AA; 10

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NOS.436/LKW/2015 CHIEF COMMISSIONER OF INCOME TAX, AAYAKAR BHAWAN, LUCKNOW. VS DR. BHIM RAO AMBEDKAR EDUCATIONAL SOCIETY, 628/19A, SHAKTI NAGAR, FAIZABAD ROAD, LUCKNOW PAN AAAJD 0271 G (RESPONDENT) (APPELLANT) SHRI R.B. SHUKLA, ADVOCATE APPELLANT BY SHRI AMIT NIGAM, DR RESPONDENT BY 15 / 1 2 /2015 DATE OF HEARING 31 / 1 2 /2015 DATE OF PRONOUNCEMENT O R D E R PER SUNIL KUMAR YADAV, JM. 1. THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINST T HE ORDER OF THE LD. CCIT, LUCKNOW PASSED UNDER SUB CLAUSE (VI) AND (VIA) OF C LAUSE (23C) OF SECTION 10 OF THE INCOME TAX ACT, 1961 VIDE ORDER DATED 26.12.200 8. SINCE THIS APPEAL WAS FILED LATE, OFFICE HAS RAISED OBJECTION THAT THE APPEAL I S BARRED BY 2296 DAYS. THIS APPEAL WAS TAKEN UP FOR CONSIDERATION ON 15.12.2015 AND IN ORDER TO JUSTIFY THE DELAY IN FILING OF THE APPEAL, THE ASSESSEE HAS MOV ED AN APPLICATION FOR NARRATING THE SEQUENCE OF FACT UNDER WHICH THE APPEAL WAS FIL ED. THE MAIN CONTENTIONS OF THE ASSESSEE WAS THAT THE ASSESSEE HAS FILED AN APP LICATION U/S 12A(1) OF THE ACT ON 07.04.2007 FOR REGISTRATION U/S 12AA(1) OF THE A CT, WHICH WAS REJECTED BY THE CIT VIDE HIS ORDER DATED 19.10.2007. THEREAFTER, TH E ASSESSEE WAS ADVISED TO FILE AN APPLICATION TO PRESCRIBED AUTHORITY U/S 10(23C) (VI) & (VIA) OF THE ACT FOR GRANT 2 OF APPROVAL TO THE DENTAL COLLEGE AND THE DENTAL HO SPITAL ATTACHED THERETO IN THE PRESCRIBED FORM. 2. THE ASSESSEE HAS ALSO FILED AN APPEAL AGAINST TH E ORDER OF THE LD. CIT DATED 19.10.2007 BEFORE THE INCOME TAX APPELLATE TRIBUNAL AND THE TRIBUNAL VIDE ITS ORDER DATED 31.08.2008 ALLOWED THE APPEAL OF THE AS SESSEE AND DIRECTED THE CIT TO GRANT REGISTRATION U/S 12AA OF THE ACT. THE CIT ACC ORDINGLY VIDE HIS ORDER DATED 01.05.2008 HAD ISSUED A CERTIFICATE OF REGISTRATION U/S 12AA(1)(B)(I) OF THE ACT W.E.F. 01.04.2007. AFTER THE GRANT OF REGISTRATION, THE PRESCRIBED AUTHORITY HAS PROCESSED THE APPLICATION OF THE ASSESSEE FILED U/S 10(23C) (VI) & (VIA) OF THE ACT AND HAS REJECTED THE SAME VIDE HIS ORDER DATED 26.1 2.2008. AFTER THE DISMISSAL OF THE APPLICATION FILED U/S 10(23C) (VI) & (VIA) OF T HE ACT BY THE PRESCRIBED AUTHORITY, THE CIT HAD ISSUED A SHOW CAUSE NOTICE DATED 27.02. 2012 TO WITHDRAW THE REGISTRATION EARLIER GRANTED U/S 12AA OF THE ACT VI DE HIS ORDER DATED 01.05.2008 AND FINALLY THE REGISTRATION EARLIER GRANTED IN COM PLIANCE TO THE ORDER OF THE TRIBUNAL WAS CANCELLED BY THE CIT VIDE ORDER DATED 12.09.2012. AGAINST WHICH AN APPEAL WAS FILED BEFORE THE TRIBUNAL AND THE TRIBUN AL HAS ACCORDINGLY UPHELD THE ORDER OF THE CIT, CANCELLING THE REGISTRATION GRANT ED TO THE ASSESSEE VIDE ITS ORDER DATED 31.03.2015. THIS ORDER OF THE TRIBUNAL WAS RE CEIVED BY THE ASSESSEE IN APRIL, 2015 AND THEREAFTER THE ASSESSEE WAS ADVISED THAT A S PER THE AMENDMENT THROUGH THE FINANCE ACT, 2015, THE ASSESSEE CAN PREFER AN A PPEAL AGAINST THE ORDER OF THE PRESCRIBED AUTHORITY BEFORE THE TRIBUNAL U/S 253(1) (F) OF THE ACT. THEREFORE, THE PRESENT APPEAL IS FILED WITHOUT ANY DELAY. LD. COUN SEL FOR THE ASSESSEE FURTHER CONTENDED THAT IN THE LIGHT OF THESE FACTS, THE PRE SENT APPEAL IS FILED IN TIME AND THERE IS NO DELAY IN FILING OF THE APPEAL, WHICH IS REQUIRED TO BE CONDONED. 3. LD. DR ON THE OTHER HAND SUBMITTED THAT AT THE R ELEVANT POINT OF TIME THE ORDER UNDER SUB CLAUSE (VI) AND (VIA) OF CLAUSE (23 C) OF SECTION 10 OF THE ACT WAS PASSED BY THE CCIT, THE PRESCRIBED AUTHORITY AND TH E REMEDY AVAILABLE WITH THE ASSESSEE TO CHALLENGE THIS ORDER BEFORE THE HONBLE HIGH COURT BY FILING WRIT PETITION. BUT THE ASSESSEE HAS NOT AVAILED THE SAME . IN ANY CASE, IF ANY, APPEAL IS PERMISSIBLE BEFORE THE TRIBUNAL, IT SHOULD ALSO BE FILED WITHIN PERIOD OF SIXTY DAYS 3 FROM THE DATE OF THE RECEIPT OF THE ORDER BUT THE A SSESSEE HAS CHOSEN NOT FILE EITHER WRIT PETITION BEFORE THE HONBLE HIGH COURT OR ANY APPEAL IF PERMISSIBLE BEFORE THE TRIBUNAL WITHIN THE PRESCRIBED PERIOD. NOW, THE ASSESSEE INTEND TO CHALLENGE THE ORDER PASSED BY THE PRESCRIBED AUTHOR ITY U/S 10(23C) OF THE ACT BEFORE THE TRIBUNAL AFTER 2296 DAYS HAVING TAKEN A SHELTER OF THE PROVISIONS OF SECTION 253(1)(F) OF THE ACT, THAT HAS BEEN BROUGHT ON THE STATUTE BY THE FINANCE ACT, 2015 W.E.F. 01.06.2015, WHICH IS NOT PERMISSIB LE UNDER THE LAW. 4. LD. DR FURTHER CONTENDED THAT SINCE CLAUSE-F OF SUB SECTION (1) OF SECTION 253 HAS BEEN BROUGHT ON STATUTE W.E.F. 01.06.2015, NO APPEAL CAN BE FILED BEFORE THE TRIBUNAL AGAINST AN ORDER PASSED PRIOR TO INSER TION THE SAID CLAUSE IN SECTION 253(1) OF THE ACT. 5. HAVING CAREFULLY EXAMINED THE MATERIAL AVAILABLE ON RECORD, WE FIND THAT UNDISPUTEDLY THE ORDER U/S 10(23C) (VI) & (VIA) PAS SED ON 26.12.2008 HAS NOT BEEN CHALLENGED BY THE ASSESSEE TILL 30 TH JUNE 2015. THE PERIOD OF LIMITATION ALWAYS STARTS FROM THE DATE OF THE RECEIPT OF ORDER OF THE COMPETENT AUTHORITY. THEREFORE, THE TIME AVAILABLE WITH THE ASSESSEE TO CHALLENGE THIS ORDER STARTS FROM THE DATE OF THE RECEIPT OF THE ORDER AND NOT AS PER ANY AMENDMENT BROUGHT ON THE STATUTE. IF THERE IS NO PROVISION IN THE ACT TO CHAL LENGE THE ORDER OF ANY AUTHORITY, THE ASSESSEE COULD HAVE VERY WELL FILED THE WRIT PE TITION BEFORE THE HONBLE HIGH COURT, BUT THE ASSESSEE HAS NOT AVAILED THE OPPORTU NITY. NOW, AFTER MORE THAN SEVEN YEARS, THE ASSESSEE WANTS TO CHALLENGE THE OR DER OF THE PRESCRIBED AUTHORITY PASSED U/S 10(23C) VIDE ORDER DATED 26.12.2008 UNDE R THE GARB OF NEW INSERTED PROVISIONS OF CLAUSE-F OF SECTION 253(1) OF THE ACT BEFORE THE TRIBUNAL. IT CERTAINLY AMOUNTS TO MISUSE OF THE PROCESS OF LAW, WHICH CANN OT BE PERMITTED UNDER ANY CIRCUMSTANCES. 6. WE HAVE ALSO TAKEN INTO ACCOUNT, THE CONTENTIONS OF THE ASSESSEE THAT WHILE DEALING WITH THE APPLICATION FOR CONDONATION OF DEL AY THE AUTHORITIES SHOULD TAKEN A LENIENT VIEW BUT WE ARE ALSO CONSCIOUS OF THE FACT THAT NOBODY SHOULD BE ALLOWED TO MISUSE THE PROCESS OF LAW THOUGH THERE IS A SERI ES OF JUDGMENTS OF THE APEX COURT IN VARIOUS HIGH COURT IN WHICH IT HAS BEEN HE LD THAT AUTHORITY SHOULD ADOPT A 4 LIBERAL APPROACH WHILE CONDONING THE DELAY BUT THE SIDE BY SIDE IT IS ALSO HELD THAT ONUS IS UPON THE ASSESSEE TO EXPLAIN THE DELAY OF E ACH AND EVERY DAY. IN THE INSTANT CASE, THE ASSESSEE HAS SIMPLY EXPLAINED THE POSITION, BUT HE HAS NOT EXPLAINED AS TO UNDER WHICH CIRCUMSTANCES HE WAS RE FRAINED FROM FILING AN APPEAL OF THE WRIT PETITION AGAINST THE ORDER OF CIT PASSE D U/S 10(23C) (VI) & (VIA) AT THE RELEVANT POINT OF TIME. IN THE LIGHT OF THESE FACTS, WE ARE OF THE CONSIDERED VIEW THAT THIS APPEAL IS BARRED BY LIMITATION AND THE AS SESSEE IS NOT ENTITLED TO TAKE THE BENEFIT OF NEWLY INSERTED PROVISION OF CLAUSE-F OF SECTION 253(1) OF THE ACT AS IT AMOUNTS TO MISUSE THE PROCESS OF LAW. WE ACCORDINGL Y, HOLD THAT THE PRESENT APPEAL IS BARRED BY LIMITATION AND CANNOT BE ADMITT ED FOR ADJUDICATION. THUS, THE APPEAL IS DISMISSED. 7. IN THE RESULT, APPEAL OF THE ASSESSEE STANDS DIS MISSED. SD/- SD/- [A. K. GARODIA] [SUNIL KUMAR YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED 31 ST DECEMBER, 2015 AKS COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR ASSISTANT REGISTRAR