Shubham Sansthan, Barmer V. CIT (E), Jaipur

ITA 458/JODH/2023

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 3368 (ITAT-JODHPUR)
• Duration Of Justice: 3 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-03-2024
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 11-03-2024
• Assessment Year: misc
• Appeal Filed On: 20-11-2023
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ALKA GAUTAM
• Keywords: Condonation of delay
• Section: 12A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH, JODHPUR. BEFORE: DR. S. SEETHALAKSHMI, JJUDICIAL MEMBER & SHRI RATHOD KAMLESH JAYANTBHAI, ACCOUNTANT MEMBER I.T.A. No.458/Jodh/2023 Shubham Sansthan Barmer, 1 Panghat Road, Joshiyon Ka Nichla Vas, Barmer. [PAN: AAGTS0627K] (Appellant) Vs. Commissioner of Income Tax (Exemptions), Jaipur. (Respondent) Appellant by Sh. Mohit Soni, Adv. Respondent by Smt. Alka Gautam,CIT-DR Date of Hearing 12.03.2024 Date of Pronouncement 18.03.2024 ORDER PER: RATHOD KAMLESH JAYANTBHAI, AM This appeal filed by assessee is arising out of the order of the Learned Commissioner of Income Tax (Exemptions), Jaipur dated 16.02.2023 [here in after “ld.CIT(E)”] passed under section 12AB of the Income Tax Act, 1961 (here in after “Act”). 2.1 At the outset of hearing, the Bench observed that there is delay of 218 days in filing of the appeal by the assessee for which the ld. AR of I.T.A. No.458/Jodh/2023 Shubham Sansthan Barmer 2 the assessee filed an application for condonation of delay with following prayers and the assessee to this effect also filed an affidavit :- “1. The appellant trust is engaged in providing charitable activities u/s 2(15) of the act and filling the return of income regularly and the books are periodically audited as per the provisions of Income Tax Act, 1961. 2. That the appellant trust had filed an application in Form 10AB dated 30.09.2022 which was rejected by Ld. CIT Exemptions, Jaipur vide order dated 16.02.2023. That against such order of CIT Exemptions the due date of filling the appeal was 17.04.2023 i.e. within 60 days of passing the order by Ld. CIT. 3. That the CA, Mr. Ravi Kumar, the then AR who was handling the proceedings u/s 12A(1)(ac)(iii) of the act and u/s 80G(5) of the act. for the reasons best known to him did not appeared and furnished the submissions before Ld. CIT Exemptions, Jaipur and no also response was filed by him on the portal. The Ld. CIT Exemptions have passed an ex-parte order and thereby rejecting the application filed in From 10AB. 4. That not only the aforesaid Chartered Accountant did not comply with the notices of hearing before CIT Exemptions but also on receiptof the rejection order on 17.02.2023 did not advise us to file any appeal within 60 days of the receipt of the order as required under the Income Tax Act, 1961. 5. Subsequently, on appointment of the new Chartered Accountant, it was advised to file an appeal against such rejection of Form 10AB and under their advice and guidance necessary appeals with condonation application are now filed. 6. That there was delay in filing appeal before Hon'ble ITAT totally due to reasons beyond control of the Trust and there is consequential delay of 218 days in filing Form 36 and related sets of documents before Hon'ble ITAT. 7. The affidavit in support this application for condonation of delay is enclosed herewith. Therefore, in the light of above I most humbly pray before your honours to kindly condone the delay 218 days in filing the appeal and oblige.” I.T.A. No.458/Jodh/2023 Shubham Sansthan Barmer 3 To this effect, the assesee has filed an affidavit as to the condononation of delay in filing the appeal 2.2 The ld. AR of the assessee appearing in this appeal submitted that the assessee is serious on the duties and the delay of 218 days is on account of the change in the AR of the assessee. Considering the various judicial precedent where in the courts has considered the explanation prevented the assessee and thereby ignored the delay on account of the technicality of the reasons. Even the apex court in the case of Collector, Land & Acquisition Vs. Mst. Katiji& Others 167 ITR 471(SC) directed the other courts to consider the liber approach in deciding the petition for condonation as the assessee is not going to achieve any benefit for the delay in fact the assessee is at risk. 2.3. During the course of hearing, the ld. DR objected to assessee’s application for condonation of delay and prayed that Court may decide the issue as deem fit and proper in the interest of justice. 2.4 We have heard both the parties and perused the materials available on record. The Bench Noted that the assessee for condonation of delay of 218 days has merit and we concur with the submission of the I.T.A. No.458/Jodh/2023 Shubham Sansthan Barmer 4 assessee. Thus, the delay of 218 days in filing the appeal by the assessee is condoned in view of the decision of Hon’ble Supreme Court in the case of Collector, land Acquisition vs. Mst. Katiji and Others, 167 ITR 471 (SC) as the assessee is prevented by sufficient cause. 3. In this appeal, the assessee has raised following grounds: - “ 1. That on the facts and in the circumstances of the case and in law the Ld. CIT Exemption erred in rejecting the registration u/s 12AB of the Act. 2. That on the facts and in the circumstances of the case and in law the Ld. CIT Exemption erred in holding that appellant trust failed to provide the requisite documentary evidence along with Form 10AB. 3. That on the facts and in the circumstances of the case and in law the Ld. CIT Exemption erred in holding that the appellant trust is required to be registered under Rajasthan Public Trust Act, 1959. 4. That on the facts and in the circumstances of the case and in law the Ld. CIT Exemption erred in holding that the activities of the appellant are not genuine. 5. The appellant craves leave to add, amend, alter vary and/or withdraw any or all the above grounds of appeal at or before the time of hearing. 6. The appellant prays for justice and relief.” 4. Brief fact of the case is that the application in Form No. 10AB seeking registration u/s 12AB of the Income Tax Act, 1961 was filed by the assessee online on 30.09.2022. A letter/notice No. ITBA/EXM/F/EXM43/2022-23/1048387190(1) dated 02.01.2023 was issued at the e-mail/address provided in the application requiring the assessee to submit certain documents/explanations by 17.01.2023, but I.T.A. No.458/Jodh/2023 Shubham Sansthan Barmer 5 no compliance was made by the assessee. Thereafter, a reminder letter was issued vide this office DIN & Notice No. ITBA/EXM/F/EXM43/2022- 23/1049015269(1) dated 23.01.2023 to submit certain documents/explanations by 31.01.2023. However, again no further compliance was made by the assessee. In view of principle of natural justice, one more opportunity was provided to the assessee vide Letter No. ITBA/EXM/F/EXM43/2022-23/1049309308(1) dated 01.02.2023 as final opportunity through which date of submission was fixed as 09.02.2023. But this time also on given date no reply was filed by the applicant. Since it is a limitation matter, therefore, the case is decided on the basis of material filed by the applicant along with its application in Form no. 10AB and application of the assessee was rejected by the ld. CIT(E) by observing that: However, the applicant has failed to comply with the letters, despite being given three opportunities details of which given in para-l in the absence of such documents, it could not be determined whether the applicant is genuinely carrying out charitable activity as per its objects. Therefore, assessee claim of registration u/s 12AB is also liable to be rejected on ground of not proving its genuineness of activity 05. In view of above discussion assessee's claim of registration section 12AB is liable to be rejected and thus being rejected on following grounds. Incomplete form 10AB. Non registration with RPT ACT, 1959. Genuineness of Activities.” I.T.A. No.458/Jodh/2023 Shubham Sansthan Barmer 6 5. Feeling dissatisfied with the finding so recorded by the ld. CIT(E), the assessee has preferred the present appeal on the grounds as reiterated in para 3 above.The ld. AR of the assessee also filed a detailed paper book in support of the contention so raised which is kept on record. The ld. AR of the assessee drawing out attention to page 1 of paper submitted that the assessee trust is already registered u/s. 12A of the Act vide registration certificate dated 07.04.2022 but by oversight and mistake the same was again applied on 30.09.2022 which is rejected and upon that rejection the present appeal is filed. Since that registration granted earlier is prevailing and not cancelled the ld. AR of the assessee submitted that the present appeal become infructuous and intend to withdraw the same. 6. Per contra, the ld. DR relied on the orders of the ld. CIT(E) and submitted that the assessee has not disclosed this facts to the ld. CIT(E). 7. We have heard the rival contentions and perused material available on record. The Bench noted that in this case registration u/s 12AB has already been granted to the assessee on I.T.A. No.458/Jodh/2023 Shubham Sansthan Barmer 7 07.04.2022. Again assessee filed an application dated 30.09.2022, again which was rejected on account of non compliance of the miscommunication between the representative of the assessee and therefore, when the registration to the assessee has already active and granted vide certificate dated 07.04.2022 with DIN no. AAGTS0627KE20211, the present orderpassed by the ld. CIT(E) on account of non submission of the details become infructuous and thus, the appeal of the assessee stands dismissed as withdrawn. In the result, the appeal of the assessee is dismissed. Order pronounced in the open Court on 18/03/2024. Sd/- Sd/- (Dr. S. Seethalakshmi) (Rathod Kamlesh Jayantbhai) Judcial Member Accountant Member Santosh (On Tour) Copy of the order forwarded to: (1)The Appellant (2) The Respondent (3) The CIT (4) The CIT (Appeals) (5) The DR, I.T.A.T. True Copy By order