Mobile Payment Forum of India, Hyd, Hyderabad V. DIT(Exemptions0, Hyderabad

ITA 541/HYD/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 53743 (ITAT-HYDERABAD)
• Duration Of Justice: 7 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: misc
• Appeal Filed On: 30-03-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B V PRASAD REDDY
• Assessee Lawyers: K A SAI PRASAD
• Keywords: Condonation of delay
• Section: 12AA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B', HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER I .T.A. NO. 541/HYD/2011 ASSESSMENT YEAR : N.A. M/S. MOBILE PAYMENT FORUM OF INDIA, HYDERABAD PAN: AABAM2866Q VS. DIRECTOR OF INCOME-TAX (EXEMPTIONS), HYDERABAD APPELLANT RESPONDENT APPELLANT BY: SHRI K.A. SAI PRASAD RESPONDENT BY: SHRI B.V. PRASAD REDDY DATE OF HEARING: 20.10.2011 DATE OF PRONOUNCEMENT: 31.10.2011 O R D E R PER CHANDRA POOJARI, AM: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE DIRECTOR OF INCOME-TAX (EXEMPTIONS) [DIT(E)], HYDER ABAD DATED 27.4.2010. 2. IN THIS CASE THE ASSESSEE APPLIED FOR REGISTRATI ON U/S. 12AA OF INCOME-TAX ACT, 1961. THE CASE WAS FIXED FOR HEARI NG ON 15.3.2010 BEFORE THE DIT(E). NONE APPEARED FOR THE ASSESSEE BEFORE THE DIT(E). ANOTHER NOTICE WAS ISSUED ON 12.4.2010 POSTING THE CASE FOR HEARING ON 19.4.2010. THERE WAS NO RESPONSE FROM THE ASSES SEE. THE DIT(E) DISMISSED THE ASSESSEE'S APPLICATION FOR REGISTRATI ON U/S. 12AA OF THE ACT. AGAINST THIS, THE ASSESSEE FILED THIS APPEAL BEFORE US BELATEDLY BY 276 DAYS. 3. THE LEARNED COUNSEL FOR THE ASSESSEE PRAYED FOR CONDONATION OF DELAY. IT WAS EXPLAINED BY THE AR THAT ON RECEIPT OF ORDER FROM DIT(E) ON 30.4.2010, SRI P. SUBRAHMANYAM (ACCOUNTS OFFICER OF THE IDRBT) WHO IS ALSO LOOKING AFTER THE ASSESSEE SOCIETY CONT ACTED THE OFFICE OF THE DIRECTOR OF INCOME-TAX (EXEMPTIONS) AND CAME TO UNDERSTAND THAT THE NEXT COURSE OF ACTION WAS TO APPLY AGAIN FOR RE GISTRATION. AND, I.T.A. NO. 541/HYD/2011 M/S. MOBILE PAYMENT FORUM OF INDIA ============================ 2 ACCORDINGLY, THE ASSESSEE SOCIETY AGAIN APPLIED ON 26.5.2010 FOR REGISTRATION IN FORM NO. 10. THIS APPLICATION WAS ALSO REJECTED VIDE ORDER DATED 12.11.2010 OF THE DIT(E), ON THE GROUND THAT (I) THE TRUST/INSTITUTION IS INTENDING TO DO ACTIVITIES AT OUTSIDE INDIA AND (II) NO ACTIVITIES WERE COMMENCED SO FAR AND THEREFORE, THE GENUINENESS OF THE OBJECTS COULD NOT BE VERIFIED. THIS ORDER RECE IVED AFTER 12.11.2010 IN OUR OFFICE WAS KEPT IN THE FILES AND HAS NOT BEE N BROUGHT TO OUR NOTICE. WHEN IT CAME TO LIGHT, THE SAME WAS INFOR MED TO THE EXECUTIVE COMMITTEE AND SUBSEQUENTLY SRI K.A. SAI PRASAD, FCA , WAS CONTACTED AND HE ADVISED US TO FILE AN APPEAL BEFORE THE INCO ME TAX APPELLATE TRIBUNAL AGAINST THE FIRST ORDER DATED 27.4.2010, O THERWISE, THE ASSESSEE SOCIETY WILL NOT GET EXEMPTION U/S. 11 FOR THE FINANCIAL YEAR 2009-10, I.E., ASSESSMENT YEAR 2010-11. HENCE THE LEARNED AR PRAYED FOR CONDONATION OF DELAY AND TO ADMIT THE AP PEAL. 4. THE LEARNED DR STRONGLY OPPOSED ADMISSION OF APP EAL. 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL ON RECORD. IN THIS CASE THERE WAS A DELAY OF 276 DAYS IN FILING THE APPEAL BEFORE THIS TRIBUNAL. WE HAVE GONE THROUGH THE REA SON EXPLAINED BY THE ASSESSEE. IN OUR OPINION, THE REASON EXPLAINED BY THE ASSESSEE IS BONA-FIDE AND THE ASSESSEE IS HAVING REASONABLE CAU SE FOR FILING THE APPEAL BELATEDLY. IN OUR OPINION, THERE IS A TECHN ICAL DEFECT IN THE APPEAL SINCE THE APPEAL WAS NOT FILED WITHIN THE PE RIOD OF LIMITATION. THE ASSESSEE FILED AN AFFIDAVIT WHEREIN THE ASSESSE E EXPLAINED THE REASON FOR DELAY IN FILING THE APPEAL. WE HAVE GON E THROUGH THE REASONS EXPLAINED BY THE ASSESSEE REGARDING DELAY I N FILING THE APPEAL. THE REVENUE HAS NOT FILED ANY COUNTER-AFFIDAVIT DEN YING THE ALLEGATION MADE BY THE ASSESSEE. THERE IS NO PRESUMPTION THAT THE DELAY IS CAUSED DELIBERATELY, OR ON ACCOUNT OF CULPABLE NEGL IGENCE, OR ON ACCOUNT OF MALA-FIDE. A LITIGANT DOES NOT STAND TO BENEFIT BY RESORTING TO DELAY. IN FACT, IT RUNS A SERIOUS RISK. WHEN SUBS TANTIAL JUSTICE AND TECHNICAL CONSIDERATIONS PITTED AGAINST EACH OTHER, THE CAUSE OF SUBSTANTIAL JUSTICE DESERVES TO BE PREFERRED, FOR T HE OTHER SIDE CANNOT I.T.A. NO. 541/HYD/2011 M/S. MOBILE PAYMENT FORUM OF INDIA ============================ 3 CLAIM TO HAVE VESTED RIGHT FOR INJUSTICE BEING DONE BECAUSE OF NON- DELIBERATE DELAY. IN THIS CASE, IT IS NOT THE CASE OF DEPARTMENT THAT THE APPEAL WAS NOT FILED DELIBERATELY. THEREFORE, WE H AVE TO PREFER THE SUBSTANTIAL JUSTICE RATHER THAN TECHNICALITY IN DEC IDING THE ISSUE AS OBSERVED BY THE APEX COURT IN THE CASE OF COLLECTOR OF LAND ACQUISITION VS. M.S.T. KHATIJI (167 ITR 471) (SC). IF THE APPL ICATION OF THE ASSESSEE FOR CONDONING THE DELAY IS REJECTED IT WOU LD AMOUNT TO LEGALISED INJUSTICE ON TECHNICAL GROUND WHEN THE TR IBUNAL IS CAPABLE OF REMOVING INJUSTICE AND TO DO JUSTICE. THEREFORE, T HIS TRIBUNAL IS BOUND TO REMOVE THE INJUSTICE BY CONDONING THE DELAY ON T ECHNICALITIES. IF THE DELAY IS NOT CONDONED IT WOULD RESULT IN INJUSTICE. IN VIEW OF THIS, WE CONDONE THE DELAY. 6. CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE C ASE, WE ADMIT THE APPEAL AND DIRECT THE DIT(E) TO GIVE ONE MORE O PPORTUNITY TO THE ASSESSEE TO PUT FORTH ITS CASE REGARDING REGISTRATI ON U/S. 12AA OF THE IT ACT, 1961. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST OCTOBER, 2011. SD/ - (ASHA VIJAYARAGHAVAN) JUDICIAL MEMBER SD/ - (CHANDRA POOJARI) ACCOUNTANT MEMBER HYDERABAD, DATED 31 ST OCTOBER, 2011 TPRAO COPY FORWARDED TO: 1. M/S. MOBILE PAYMENT FORUM OF INDIA, C/O. M/S. CH . PARTHASARATHY & CO., 1-1-298/2/B/3,1 ST FLOOR, SOWBHAGYA AVENUE, ST. NO. 1, ASHOKNAGAR, HYDERABAD-500 020. 2. THE DIRECTOR OF INCOME-TAX (EXEMPTIONS), HYDERAB AD. 3. THE DDIT (E), HYDERABAD. 4. THE DR B BENCH, ITAT, HYDERABAD