LOKSEWA SHIKSHAN BAHUUDDESHIYA MANDAL, BULDHANA V. COMMISSIONER OF INCOME TAX-1, NAGPUR

ITA 62/NAG/2023

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 2882 (ITAT-NAGPUR)
• Duration Of Justice: 1 year(s) 1 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-04-2024
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 27-03-2024
• Assessment Year: 2015-2016
• Appeal Filed On: 08-03-2023
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Period of limitation; Condonation of delay; Set aside
• Section: 148; 12; 11; 12A; 12AA

Judgement Text

।आयकर अपीलीय अिधकरण Ɋायपीठ नागपुरमŐ। IN THE INCOME TAX APPELLATE TRIBUNAL, NAGPUR BENCH : : NAGPUR [VIRTUAL HEARING AT PUNE] BEFORE SHRI S.S.GODARA, JUDICIAL MEMBER AND DR. DIPAK P. RIPOTE, ACCOUNTANT MEMBER आयकर अपील सं. / ITA No.62/NAG/2023 िनधाᭅरण वषᭅ / Assessment Year :2015-16 Lokeswa Shikshan Bahuuddeshiya Mandal, C/o. Dr.ArvindW.Kolte, Janta College, Buldhana Road, Malkapur – 443101. PAN: AAATL5306N V s The Commissioner of Income Tax-I, Nagpur. Appellant/ Assessee Respondent/Revenue Assessee by Shri Sanjay Thakar – AR Revenue by Shri Kailash C. Kanojiya – CIT(DR) Date of hearing 28/03/2024 Date of pronouncement 22/04/2024 आदेश/ ORDER PER DR. DIPAK P. RIPOTE, AM: This is an appeal filed by the assessee against the order of ld.Commissioner of Income Tax-I, Nagpur dated 11.11.2014 passed under section 12AA(1) of the Act. The assessee has raised the following grounds of appeal : 1] On the facts and circumstances of the case and material already on record the learned CIT should have granted registration u/s. 12A as per Assessee’s application filed on ITA No.62/NAG/2023 Lokeswa Shikshan Bahuuddeshiya Mandal [A] 2 08.05.2014. 2] Learned C.I.T. erred in rejecting the Assessee’s application for registration summarily merely on the ground of non-appearance on 10.11.2014 when all the relevant material for grant of registration was already on record. 3] Order passed by learned C.I.T. is in violation of principles of natural justice and without due and reasonable opportunity to the Assessee and hence deserves to be set aside. 4] Order rejecting 12-A application on merits merely on the ground of non- appearance of Assessee on a given date is without jurisdiction and also unjust especially when all the relevant material is on record which he failed to consider. 5] Assessee craves leave to urge additional ground as may be necessary at the time of hearing. Findings &Analysis : 2. We have heard both the parties and perused the records. Admittedly, in this case, the order of the ld.CIT-I, Nagpur was served on assessee on 14.11.2014 as observed from the FORM No.36 filed by the assessee. Thus, the time limit to file the appeal before ITAT was within 60 days from the date of service of the order. The relevant section 253(3) is reproduced here as under : (3) Every appeal under sub-section (1) or sub-section (2) shall be filed within sixty days of the date on which the order sought to be appealed against is communicated to the assessee or to the 73a [Principal Commissioner or] Commissioner, as the case may be : 74 [Provided that in respect of any appeal under clause (b) of sub-section (1), this sub-section shall have effect as if for the words "sixty days", the words "thirty days" had been substituted.] 2.1 However, the appellant had filed the appeal before this Tribunal against the order of the ld.CIT-I, Nagpur dated ITA No.62/NAG/2023 Lokeswa Shikshan Bahuuddeshiya Mandal [A] 3 11.11.2014 on 09.03.2023. Thus, there is a delay of eight years, eighty-eight days. The appellant has filed an affidavit of secretary of the appellant, along with condonation application. The appellant had admitted in the condonation application that there is a delay in filing of appeal before ITAT of eight years, eighty-eight days. 2.2 The appellant has given following reasoning in the Affidavit for delay : “However for A.Y.2015-16 the return had remained to be filed and hence the (case of the Assessee was reopened for A.Y.2015-16 by notice u/s.148 dt.30.03.2022. It was in this reassessment proceedings one of the issue o registration of Trust u/s.l2-A for the year arose. Said reassessment proceedings are going on. It then came to light that Assessee’s application u/s.12-A dt.08.05.201 had come to be rejected, not on merits or on consideration of material facts already on record but only on technical ground of non-appearance on 10.11.2014. Even for non-appearance, at the worst, he could have filed the application but could n reject the same on merits without considering the material on record or giving reasonable opportunity to the Assessee. In assessment proceedings one of the pi raised by the Assessee is that second proviso to sec.l2-A provides that where registration has been granted to the Trust u/s.12-AA then provisions of sec. 11 a 12 shall apply in respect of income derived from property held under Trust of a assessment year proceeding the aforesaid assessment year for which assessments are pending before the Assessing Officer. Hence the Assessee has submitted in the said proceedings that since the Assessee has been granted 12-A ITA No.62/NAG/2023 Lokeswa Shikshan Bahuuddeshiya Mandal [A] 4 registration by order dt.24.09.2022 for A.Y.2022-23 to A.Y.2024-25 the provisions of sec.11 and 12 shall apply to preceeding years viz. A.Y.2015-16 which is pending before the A.O. and further since the objects and activities of the Trust are continued to be the same, the provisions of sec. 11 and 12 shall apply to pending assessment year 2015-16. Though the case of the Assessee on said point is legal and just and accordingly provisions of sec.11 and 12 will apply to said A.Y.2015- 16, the Assessee has been strongly advised to file appeal against the order of C.I.T. Nagpur dt.l1.11.2014 whereby he wrongly rejected Assessee’s application u/s.12A dt.08.05.2014 and get registration from the said date of avoid injustice on some technical ground and in violation of principles of natural justice.” 3. On perusal of the affidavit, it is observed that assessee does not have sufficient reason for such a huge delay of eight years eighty-eight days. In this case, assessee failed to file Return of Income for A.Y.2015-16, therefore, Department issued notice under section 148 on 30.03.2022. One of the issues in the re-assessment proceedings was non-availability of registration under section 12AA of the Act. Assessee in the affidavit had admitted that at that point of time, assessee realized about rejection of 12AA application in 2014. Even after that assessee had filed appeal before this Tribunal on 09.03.2023 i.e. after a gap of one year. Thus, even after realizing the fact, assessee delayed filing of appeal by one ITA No.62/NAG/2023 Lokeswa Shikshan Bahuuddeshiya Mandal [A] 5 year. The procedure for registration under section 12AA was amended by Finance Act, 2020. Accordingly, assessee had applied for provisional registration and it was granted to assessee on 24.09.2021 for A.Y.2022-23 to A.Y.2024-25. Thus, even at the time of applying for provisional registration under the amended scheme, assessee failed to realize that assessee’s application for registration under 12AA was rejected on 11.11.2014. Chronology of these events explain that assessee was callous and not serious towards the registration. 3.1 In the case of P.K.Ramachandran Vs. State of Kearala, the Hon’ble Kerala High Court condoned the delay of 565 days, the appellant P.K.Ramachandran filed SLP before the Hon’ble Supreme Court against the order of the Hon’ble Kerala High Court. The Hon’ble Supreme Court refused to condone the delay. The relevant paragraph of the Hon’ble Supreme Court’s order is reproduced here as under : Quote “That apart, we find that in the application filed by the respondent seeking condonation of delay, the thrust in explaining the delay after 12.5.1995, si: ITA No.62/NAG/2023 Lokeswa Shikshan Bahuuddeshiya Mandal [A] 6 "at that time the Advocate General's office was fed up with so many arbitration matters equally important to this case were pending for consideration as per the directions of the Advocate General on 2.9.1995." This can hardly be said to be a reasonable, satisfactory or even a proper explanation for seeking condonation of delay. In the reply filed to the application seeking condonation of delay by the appellant in the High Court, it is asserted that after the judgment and decree was pronounced by the learned Sub Judge, Kollam on 30.10.1993, the scope for filing of the appeal was examined by the District Government Pleader, Special Law Officer, Law Secretary and the Advocate General and in accordance with their opinion, it was decided that there was no scope for filing the appeal but lateron, despite the opinion referred to above, the appeal was filed as late as on 8.1.1996 without disclosing why it was being filed. The High Court does not appear to have examined the reply filed by the appellant as reference to the same is conspicuous by its absence from the order. We are not satisfied that in the facts and circumstances of this case, any explanation, much less a reasonable or satisfactory one had been offered by the respondent State for condonation of the inordinate delay of 565 days. Law of limitation may harshly effect a particular party but it has to be applied with all its rigour when the statute so prescribe and the Courts have no power to extend the period of limitation on equitable grounds. The discretion exercised by the High Court was, thus, neither proper nor judicious. The order condoning the delay cannot be sustained. This appeal, therefore, succeeds and the impugned order is set aside. Consequently, the application for condonation of delay filed in the High Court would stand ITA No.62/NAG/2023 Lokeswa Shikshan Bahuuddeshiya Mandal [A] 7 rejected and the Miscellaneous First Appeal shall stand dismissed as barred by time. No costs.” Unquote. 5.2 Thus, respectfully following the Hon’ble Supreme Court(supra), assessee’s application for condonation of delay is rejected. Accordingly, appeal is dismissed on the ground of delay. Hence, appeal is dismissed as not admitted. 6. In the result, appeal of the assessee is dismissed. Order pronounced in the open Court on 22 nd April, 2024. Sd/- Sd/- (S.S.GODARA) (DR. DIPAK P. RIPOTE) JUDICIAL MEMBER ACCOUNTANT MEMBER पुणे / Pune; ᳰदनांक / Dated : 22 nd April, 2024/ SGR* आदेशकᳱᮧितिलिपअᮕेिषत / Copy of the Order forwarded to : 1. अपीलाथᱮ / The Appellant. 2. ᮧ᭜यथᱮ / The Respondent. 3. The CIT(A), concerned. 4. The Pr. CIT, concerned. 5. िवभागीयᮧितिनिध, आयकर अपीलीय अिधकरण, नागपुर बᱶच, नागपुर/ DR, ITAT, Bench, Nagpur. 6. गाडᭅफ़ाइल / Guard File. आदेशानुसार / BY ORDER, // TRUE COPY // Senior Private Secretary आयकर अपीलीय अिधकरण, पुणे/ITAT, Pune.