The A./Dy.C.I.T., Central Circle, Agra V. Gayatri Shiksha Samiti, Agra

ITA 438/AGR/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 0279 (ITAT-AGRA)
• Duration Of Justice: 3 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-01-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 16-01-2013
• Assessment Year: 2004-2005
• Appeal Filed On: 20-09-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: VITHAL DAS
• Keywords: Period of limitation; Condonation of delay

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. 438/AGRA/2012 ASSTT. YEAR : 2004-05 A.C.I.T., CENTRAL CIRCLE, VS. GAYATRI SHIKSHA SA MITI, AGRA. 14/195, GHATIA AZAM KHAN, AGRA(PAN:AAAAG1565D) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI WASEEM ARSHAD, SR. D.R. RESPONDENT BY : SHRI VITHAL DAS, ADVOCATE DATE OF HEARING : 16.01.2013 DATE OF PRONOUNCEMENT OF ORDER : 18.01.2013 ORDER PER BHAVNESH SAINI, J.M.: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A)-I, AGRA DATED 10.09.2009 FOR THE ASSESSMENT YEAR 2004- 05, CHALLENGING THE ORDER OF THE LD. CIT(A) IN ALLOWING EXEMPTION U/S. 10(23C)(I IIAD) OF THE IT ACT. 2. THE REVENUE IN ITS APPEAL, IN COLUMN NO. 9 HAS M ENTIONED THE DATE OF COMMUNICATION OF THE ORDER APPEALED AGAINST AS 13.0 9.2012 AND THE APPEAL IS PREFERRED IN THE OFFICE OF THE TRIBUNAL ON 20.09.20 12. THE OFFICE, HOWEVER, CONSIDERING THE DATE OF APPELLATE ORDER IMPUGNED IN APPEAL, I.E., 10.09.2009 NOTED THAT THE APPEAL OF THE REVENUE IS TIME BARRED BY 10 45 DAYS. THIS FACT WAS ALSO ITA NO. 438/AGRA/2012 2 INTIMATED TO THE REVENUE VIDE SEPARATE NOTICES. THE REVENUE DID NOT TAKE ANY STEP IN THE MATTER TO EXPLAIN THE DELAY IN FILING THE AP PEAL BEFORE THE TRIBUNAL. THEREFORE, THE APPEAL WAS TAKEN UP FOR HEARING AND IN THE NOTICE FOR HEARING ALSO, THE REVENUE WAS INTIMATED THAT THE APPEAL IS TIME B ARRED BY 1045 DAYS. THE LD. DR ON 17.12.2012 SOUGHT TIME TO TAKE STEPS FOR FILING APPLICATION FOR CONDONATION OF DELAY. HOWEVER, TILL DATE, NO SUCH APPLICATION FOR CONDONATION OF DELAY HAS BEEN FILED BY THE REVENUE DEPARTMENT. 3. APART FROM THE ABOVE FACTS, IT IS NECESSARY TO N OTE THE BACKGROUND OF THE FILING OF PRESENT APPEAL OF THE REVENUE. EARLIER, A SSESSEE PREFERRED APPEAL IN ITA NO. 464/AGRA/2009 AGAINST THE SAME IMPUGNED ORDER O F LD. CIT(A)-I, AGRA DATED 10.09.2009 FOR ASSESSMENT YEAR 2004-05 BEFORE THE T RIBUNAL AND SAID APPEAL WAS FILED BY THE ASSESSEE IN THE OFFICE OF THE TRIBUNAL ON 08.12.2009, IN WHICH THE ASSESSEE RAISED TWO GROUNDS OF APPEAL, CHALLENGING THE ADDITION OF RS.10 LACS AND RS.17,18,669/-. THE APPEAL OF THE ASSESSEE WAS INIT IALLY FIXED FOR HEARING FOR 04.04.2011 WAY BACK ON 09.03.2011 AND TIME TO TIME APPEAL OF THE ASSESSEE WAS ADJOURNED ON DIFFERENT DATES AND THE REVENUE WAS RE PRESENTED BY THE CONCERNED DR. DURING THE COURSE OF HEARING OF APPEAL OF THE A SSESSEE, THE LD. DR ON 23.02.2012 GOING THROUGH THE FINDINGS OF THE LD. CI T(A) IN FAVOUR OF THE ASSESSEE SUBMITTED THAT THE DEPARTMENT INTENDS TO FILE THE C ROSS OBJECTION, BUT DESPITE GIVING ITA NO. 438/AGRA/2012 3 SUFFICIENT TIME TO LD. DR, NO CROSS OBJECTION WAS F ILED AND ACCORDINGLY, THE APPEAL WAS HEARD ON 03.05.2012, BUT NO CROSS OBJECTION WAS FILED BY THE REVENUE DEPARTMENT TO CHALLENGE THE FINDINGS OF THE LD. CIT (A) IN HOLDING THAT INCOME OF THE ASSESSEE IS EXEMPT U/S. 10(23C)(IIIAD) OF THE I T ACT, WHICH IS NOW CHALLENGED IN THE DEPARTMENTAL APPEAL BEFORE US. THE TRIBUNAL CONSIDERING THE FACTS OF THE CASE AND THE MATERIAL ON RECORD DISPOSED OF THE APPEAL O F THE ASSESSEE IN ITA NO. 464/AGRA/2009 VIDE ORDER DATED 11.05.2012 AND APPEA L OF THE ASSESSEE WAS ALLOWED FOR THE SAME ASSESSMENT YEAR. THE FINDINGS OF THE TRIBUNAL IN PARA 5 & 6 ARE REPRODUCED FOR CONVENIENCE AS UNDER : 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND T HE MATERIAL ON RECORD AND WE DO NOT JUSTIFY THE FINDIN G OF THE LD. CIT(A) IN ISSUING DIRECTION TO MAKE ADDITION IN ASSESSMENT YEAR 2005-06. HONBLE SUPREME COURT IN THE CASE OF CIT VS. MANICK SONS, 74 ITR 1 (SC) HAVE HELD THAT THE TRIBUNAL HAD NO JURISDICTION IN THE APPEA L FOR THE ASSESSMENT YEAR 1953-54 TO REOPEN THE ASSESSMENT FO R THE YEAR 1952=53. THERE WAS NO SANCTION IN LAW TO ENFORCE TH E UNDERTAKING GIVEN BY THE RESPONDENT TO MAKE A VOLUNTARY RETURN FOR THE YEAR 1952- 53 WHEN URGING ITS APPEAL FOR THE YEAR 1953-54; AND EVEN IF THE RESPONDENT CARRIED OUT THAT UNDERTAKING THE ASSESSM ENT FOR 1952-53 COULD NOT BE REOPENED OTHERWISE THAN IN THE MANNER PRESCRIBED BY LAW. ITS UNDERTAKING HAD THEREFORE TO BE IGNORED. THE HONBLE SUPREME COURT FURTHER HELD THAT THERE WAS NO EVIDENCE BEFORE THE TRIBUNAL FOR REDUCING THE CASH CREDITS BY RS.21,000. THE POWER CONFERRED BY SECTION 33(4) OF THE INCOME -TAX ACT, 1922, IS WIDE, BUT IT IS STILL A JUDICIAL PER WHICH MUST BE EXERCISED IN RESPECT OF MATTERS THAT ARISE IN THE APPEAL AND ACC ORDING TO LAW. THE ITA NO. 438/AGRA/2012 4 TRIBUNAL IN DECIDING ON APPEAL BEFORE IT MUST DEAL WITH QUESTIONS OF LAW AND FACT WHICH ARE OUT OF THE ORDER OF ASSESSME NT MADE BY THE INCOME-TAX OFFICER AND THE ORDER OF THE APPELLATE A SSISTANT COMMISSIONER. IT CANNOT ASSUME POWERS WHICH ARE INC ONSISTENT WITH THE EXPRESS PROVISIONS OF THE ACT OR ITS SCHEME. 5.1 THE DECISIONS CITED BY THE LD. COUNSEL FOR THE ASSESSEE, NOTED ABOVE, CLEARLY SUPPORT THE CASE OF THE ASSESSEE THA T THE LD. CIT(A) CANNOT GIVE DIRECTION TO THE AO TO MAKE ADDITION IN SUBSEQUENT ASSESSMENT YEAR. THEREFORE, THE DIRECTION OF THE LD . CIT(A) IS NOT IN ACCORDANCE WITH LAW. WE MAY FURTHER NOTE THAT THE L D. CIT(A) APART FROM MAKING THE ABOVE DIRECTION, ALSO DECIDED OTHER ISSUES IN FAVOUR OF THE ASSESSEE HOLDING THAT THE INCOME OF THE ASSE SSEE IS ELIGIBLE FOR EXEMPTION U/S. 10(23C)(IIIAD) OF THE IT ACT. THE LD . CIT(A) WHILE SPECIFICALLY DELETING THE ADDITION OF RS.38,59,928/ - ALSO APPLIED THE ABOVE PROVISION BY HOLDING THAT THE INCOME OF THE A SSESSEE SINCE WAS EXEMPT, THEREFORE, NO ADDITION COULD BE MADE AGAINS T THE ASSESSEE. THERE IS NO CROSS APPEAL FILED BY THE REVENUE CHALL ENGING THE ABOVE FINDING OF THE LD. CIT(A) IN THE IMPUGNED ORDER. WH EN THIS APPEAL WAS HEARD ON 23.02.2012, THE LD. DR ON GOING THROUG H THE ABOVE FINDING OF LD. CIT(A) IN FAVOUR OF THE ASSESSEE SUB MITTED THAT THE DEPARTMENT INTENDS TO FILE THE CROSS OBJECTION. THO UGH THIS REQUEST WAS MADE BELATEDLY, BUT IN THE INTEREST OF JUSTICE, THE DEPARTMENT WAS GRANTED TIME TO FILE CROSS-OBJECTION, IF ANY, AND A PPEAL WAS ADJOURNED TO 21.03.2012. WHEN THE APPEAL WAS TAKEN UP FOR HEA RING ON 21.03.12, THE LD. DR SUBMITTED THAT STEPS HAVE BEEN TAKEN FOR FILING THE CROSS OBJECTION ON BEHALF OF THE DEPARTMENT AND THE DEPAR TMENT WOULD NOT SEEK FURTHER ADJOURNMENT IN THIS MATTER. THEREFORE, LAST OPPORTUNITY WAS GRANTED TO THE DEPARTMENT TO DO THE NEEDFUL AND THE APPEAL WAS ADJOURNED TO 25.04.2012. AGAIN ON THE REQUEST OF TH E DR, THE APPEAL WAS ADJOURNED TO 03.05.2012. HOWEVER, ON THE DATE O F HEARING, NO SUCH CROSS OBJECTION HAS BEEN FILED BY THE REVENUE DEPARTMENT CHALLENGING THE FINDING OF LD. CIT(A) HOLDING THAT THE INCOME OF THE ASSESSEE IS EXEMPT U/S 10(23C)(IIIAD) OF THE IT ACT . THE FINDING OF THE LD. CIT(A), THUS, REMAINED FINAL THAT THE INCOME OF THE ASSESSEE IS EXEMPT BEING SOLELY EXISTED FOR EDUCATIONAL PURPOSE . THUS, THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF RAUNAQ EDUCATION FOUNDATION (SUPRA) SQUARELY APPLIES TO TH E CASE OF THE ASSESSEE. CONSIDERING THE ABOVE DISCUSSION, WE ARE OF THE VIEW THAT THE LD. CIT(A) WAS NOT JUSTIFIED IN ISSUING THE DIR ECTION TO THE AO TO ITA NO. 438/AGRA/2012 5 MAKE ADDITION IN SUBSEQUENT ASSESSMENT YEAR 2005-06 . FURTHER WHEN INCOME OF THE ASSESSEE IS EXEMPT U/S. 10(23C)(IIIAD ) OF THE IT ACT, NO PURPOSE WOULD SERVE TO MAKE FURTHER ADDITION AGAINS T THE ASSESSEE IN ANY RESPECT BECAUSE THE ADDITION, IF ANY, MADE TO T HE INCOME OF THE ASSESSEE, WOULD FURTHER EXEMPT THE INCOME OF THE AS SESSEE. CONSIDERING THE TOTALITY OF FACTS AND CIRCUMSTANCES , NOTED ABOVE, WE ARE OF THE VIEW THAT THE APPEAL OF THE ASSESSEE ON THE ABOVE GROUND SHALL HAVE TO BE ALLOWED. WE ACCORDINGLY, SET ASIDE THE ORDER OF THE LD. CIT(A) ON THE ABOVE GROUND AND QUASH HIS DIRECTION TO THE AO TO MAKE ADDITION IN THE ASSESSMENT YEAR 2005-06. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. 4. THEREAFTER, THE REVENUE PREFERRED M.A. NO. 29/AG RA/2012 SEEKING REVIEW OF THE ORDER OF THE TRIBUNAL DATED 11.05.2012 PRECISEL Y ON THE REASON OF FILING THE CROSS OBJECTION. HOWEVER, THE M.A. NO. 29/AGRA/2012 OF REVENUE WAS DISMISSED VIDE ORDER DATED 21.12.2012. IN THE BACKGROUND OF T HESE FACTS, NOW THE REVENUE HAS PREFERRED THE DEPARTMENTAL APPEAL AFTER FILING OF THE M.A. ON 20.09.2012. THEREFORE, THE REVENUE HAS INCORRECTLY MENTIONED 13 .09.2012 AS THE DATE OF COMMUNICATION OF THE ORDER APPEALED AGAINST BECAUSE THE REVENUE WAS AWARE OF THE FILING OF APPEAL OF THE ASSESSEE WAY BACK IN 20 09 AND AFTER PASSING OF THE ORDER IN THE APPEAL OF THE ASSESSEE ON 11.05.2012 AND EVE N ON PRIOR DATES OF HEARING IN APPEAL OF THE ASSESSEE, THE REVENUE WAS AWARE OF TH E FACT THAT THE LD. CIT(A) HAS ALREADY GIVEN FINDING AGAINST THE REVENUE FOR WHICH EITHER THE REVENUE WAS TO PREFER CROSS OBJECTION OR CROSS APPEAL, BUT IN THE ABSENCE OF ANY STEP TAKEN EARLIER FROM THE YEAR 2009 TO THE DATE OF ORDER BY TRIBUNAL ON 11.05.12, THE REVENUE DID ITA NO. 438/AGRA/2012 6 NOT TAKE ANY STEPS IN THE MATTER TO CHALLENGE THE F INDINGS OF LD. CIT(A) WITH REGARD TO GRANTING EXEMPTION TO THE ASSESSEE U/S. 10(23C)( IIIAD) OF THE IT ACT. HONBLE SUPREME COURT RECENTLY IN THE CASE OF OFFICE OF THE CHIEF POST MASTER GENERAL AND OTHERS VS. LIVING MEDIA INDIA LTD. AND ANOTHER, 348 ITR 7 (SC) HELD AS UNDER : HELD, DISMISSING THE APPLICATIONS, THE DEPARTMENT HAD ITS ELF MENTIONED IN ITS AFFIDAVIT AND WAS AWARE OF THE DAT E OF THE JUDGMENT OF THE DIVISION BENCH OF THE HIGH COURT AS SEPTEMBER 1 1, 2009. EVEN, ACCORDING TO THE DEPONENT, ITS COUNSEL HAD APPLIED FOR THE CERTIFIED COPY OF THE JUDGMENT ONLY ON JANUARY 8, 2010, AND T HE COPY WAS RECEIVED BY THE DEPARTMENT ON THE VERY SAME DAY. TH ERE WAS NO EXPLANATION FOR NOT APPLYING FOR CERTIFIED COPY OF THE JUDGMENT ON SEPTEMBER 11, 2009, OR AT LEAST WITHIN A REASONABLE TIME. THE FACT REMAINS THAT THE CERTIFIED COPY WAS APPLIED FOR ONL Y ON JANUARY 8, 2010, I.E., AFTER A PERIOD OF NEARLY FOUR MONTHS. N EITHER THE DEPARTMENT NOR THE PERSON IN-CHARGE HAD FILED AN EX PLANATION FOR NOT APPLYING FOR THE CERTIFIED COPY WITHIN THE PRESCRIB ED PERIOD. THE OTHER DATES MENTIONED IN THE AFFIDAVIT CLEARLY SHOWED THA T THERE WAS DELAY AT EVERY STAGE AND THERE WAS NO EXPLANATION AS TO WHY SUCH DELAY HAD OCCASIONED. THE DEPARTMENT OR THE PERSON CONCERNED HAD NOT EVINCED DILIGENCE IN PROSECUTING THE MATTER TO THE COURT BY TAKING APPROPRIATE STEPS. THE PERSONS CONCERNED WERE WELL AWARE OR CON VERSANT WITH THE ISSUES INVOLVED INCLUDING THE PRESCRIBED PERIOD OF LIMITATION FOR TAKING UP THE MATTER BY WAY OF FILING A SPECIAL LEAVE PETI TION IN THE SUPREME COURT. IN THE ABSENCE OF PLAUSIBLE AND ACCEPTABLE E XPLANATION, THE DELAY COULD NOT BE CONDONED MECHANICALLY MERELY BEC AUSE THE GOVERNMENT OR A WING OF THE GOVERNMENT WAS A PARTY BEFORE THE COURT. THOUGH IN A MATTER OF CONDONATION OF DELAY W HEN THERE WAS NO GROSS NEGLIGENCE OR DELIBERATE INACTION OR LACK OF BONA FIDE, A LIBERAL CONCESSION HAD TO BE ADOPTED TO ADVANCE SUBSTANTIAL JUSTICE, IN THE FACTS AND CIRCUMSTANCES, THE CLAIM ON ACCOUNT OF IM PERSONAL MACHINERY AND INHERITED BUREAUCRATIC METHODOLOGY OF MAKING SEVERAL NOTES COULD NOT BE ACCEPTED IN VIEW OF THE MODERN T ECHNOLOGIES BEING USED AND AVAILABLE. CONSIDERING THE FACT THAT THERE WAS NO PROPER EXPLANATION OFFERED BY THE DEPARTMENT FOR THE DELAY EXCEPT MENTIONING OF VARIOUS DATES, THE DEPARTMENT HAD FAI LED TO GIVE ITA NO. 438/AGRA/2012 7 ACCEPTABLE AND COGENT REASONS SUFFICIENT TO CONDONE SUCH A HUGE DELAY. BY THE COURT : UNLESS GOVERNMENT BODIES, THEIR AGENCIES AND INSTRUMENTALITIES HAVE REASONABLE AND ACCEPTABL E EXPLANATION FOR THE DELAY AND THERE WAS BONA FIDE EFFORT, THERE IS NO NEED TO ACCEPT THE USUAL EXPLANATION THAT THE FILE WAS KEPT PENDING FO R SEVERAL MONTHS OR YEARS DUE TO CONSIDERABLE DEGREE OF PROCEDURAL RED- TAPE IN THE PROCESS. GOVERNMENT DEPARTMENTS ARE UNDER A SPECIAL OBLIGATION TO ENSURE THAT THEY PERFORM THEIR DUTIES WITH DILIGENC E AND COMMITMENT. CONDONATION OF DELAY IS AN EXCEPTION AND SHOULD NOT BE USED AS AN ANTICIPATED BENEFIT FOR GOVERNMENT DEPARTMENTS. THE LAW SHELTERS EVERY-ONE UNDER THE SAME LIGHT AND SHOULD BE SWIRLE D FOR THE BENEFIT OF A FEW. THE LAW OF LIMITATION BINDS EVERYBODY INC LUDING THE GOVERNMENT. 4.1 CONSIDERING THE BACKGROUND OF THE CASE, IT IS C LEAR THAT THE REVENUE WAS AWARE OF THE RECEIPT OF THE IMPUGNED ORDER DATED 10 .09.2009 IN THE YEAR 2009 ITSELF ON FILING OF APPEAL BY THE ASSESSEE AS WELL AS DURI NG THE PENDENCY OF APPEAL OF THE ASSESSEE, THE REVENUE WAS GIVEN OPPORTUNITIES TO TA KE UP THE SIMILAR MATTER IN THE CROSS OBJECTION OR IN THE CROSS APPEAL, BUT NO STEP S HAVE BEEN TAKEN TILL 11.05.2012. THEREFORE, THE DATE OF COMMUNICATION OF THE ORDER I S WRONGLY MENTIONED IN THE APPEAL PAPERS AS 13.09.2012. DESPITE GIVING SUFFICI ENT TIME TO FILE APPLICATION FOR CONDONATION OF DELAY IN THE PRESENT DEPARTMENTAL AP PEAL, THE REVENUE DID NOT FILE ANY APPLICATION FOR CONDONATION OF DELAY EXPLAINING THE REASONS FOR DELAY IN FILING THE APPEAL BEFORE THE TRIBUNAL. IN THE ABSENCE OF A NY EVIDENCE OR MATERIAL FROM THE SIDE OF REVENUE DEPARTMENT AND PARTICULARLY ON DECI DING THE APPEAL OF THE ASSESSEE IN ITA NO. 464/AGRA/2009 (SUPRA) AND ON DISMISSAL O F M.A. OF THE REVENUE IN MA ITA NO. 438/AGRA/2012 8 NO. 29/AGRA/2012, WE ARE OF THE VIEW THAT THE REVEN UE HAS MISERABLY FAILED TO EXPLAIN THE DELAY IN FILING THE DEPARTMENTAL APPEAL AT THIS STAGE. IT IS WELL SETTLED LAW THAT THE DELAY COULD BE CONDONED IF THE REVENUE IS ABLE TO PROVE ANY SUFFICIENT CAUSE IN THEIR FAVOUR. IN THE ABSENCE OF ANY REQUES T OR MATERIAL ON RECORD AND IN THE BACKGROUND OF THE FACTS NOTED ABOVE, WE ARE OF THE VIEW THAT THE APPEAL OF THE REVENUE IS TIME BARRED. THE SAME IS ACCORDINGLY DIS MISSED. 5. IN THE RESULT, THE DEPARTMENTAL APPEAL IS DISMIS SED, AS INDICTED ABOVE. 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