SHRI KRISHAN GAUSHALA SAMITI, Alwar V. CIT, Alwar

ITA 753/JPR/2011

• Counselvise Citation: 75323114 RSA 2011
• Duration Of Justice: 2 year(s) 4 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-01-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 31-05-2012
• Assessment Year: misc
• Appeal Filed On: 23-08-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUBHASH CHANDRA
• Assessee Lawyers: KRANTI MEHTA
• Keywords: Opportunity of being heard; Reasonable cause; Condonation of delay
• Section: 12A; 154

Judgement Text

IN THE INCOME TAX APPELALTE TRIBUNAL : JAIPUR BENCH : JAIPUR BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI N.K. SAINI, ACCOUNTANT MEMBER. ITA NO.753/JP/2011 SHRI KRISHNA GAUSHALA SAMITI, VS. CIT, ALWAR. BUDHI BAWAL (ALWAR). (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI KRANTI MEHTA DEPARTMENT BY : SHRI SUBHASH CHANDRA- D.R. DATE OF HEARING : 15/01/2014. DATE OF PRONOUNCEMENT : 21/01/2014. O R D E R PER N.K.SAINI, A.M THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDE R DATED 13/01/2005. THE FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEAL: 1. THAT THE LD. CIT, ALWAR ERRED IN NOT GRANTING R EGISTRATION U/S 12A OF THE IT ACT FROM 18/10/1993 BY NOT CONDONING DELAY O F ABOUT 11 YEARS AND GRANTING REGISTRATION WITH EFFECT FROM 03/01/20 05 EVEN WHEN THERE WERE REASONABLE AND SUFFICIENT REASONS FOR CO NDONATION OF DELAY. ACCORDINGLY, THE REGISTRATION U/S 12A OF TH E IT ACT DESERVES TO BE GRANTED WITH EFFECT FROM 18/10/1993 SINCE THE CH ARITABLE ACTIVITIES WERE CARRIED ON SINCE START. 2. THAT THE APPELLANT PRAYS TO ADD, ALTER, MODIFY D ELETE OR AMEND ALL OR ANY GROUND OF APPEAL AT OR BEFORE THE TIME OF HEARI NG. 2 2 THE REGISTRY HAS POINTED OUT THAT THE APPEAL IS BA RRED BY LIMITATION OF 2376 DAYS. THE ASSESSEE MOVED AN APPLICATION ON 17/08/2011 FOR CONDONATION OF DELAY BY STATING AS UNDER:- MAY IT PLEASE YOUR HONOURS, OUR SAMITI IS REGISTERED WITH THE REGISTRAR OF SOCI ETIES, ALWAR VIDE REGD. NO. 54/ALWAR/93-94 WITH EFFECT FROM 18/10/1993. WE HAD APPLIED FOR REGISTRATION U/S 12A OF IT ACT ON 03/01/2005 WITH T HE REQUEST TO GRANT REGISTRATION WITH EFFECT FROM 18/10/1993. THE CIT, ALWAR VIDE ORDER DATED 13/01/2005 GRANTED REGISTRATION WITH EFFECT FROM 03 /01/2005. HE DID NOT CONDONE THE DELAY OF ABOUT 11 YEARS. WE DID NOT FILE ANY APPEAL AS PER THE ADVICE OF OUR TAX CONSULTANT AGAINST THE ORDER OF CIT, ALWAR U/S 12A OF IT ACT SINCE THE MANAGEMENT WAS NOT AGGRIEVED. THEREAFTER, THE ITO WARD 1(1), ALWAR PA SSED ASSESSMENT ORDER U/S 148/143(3) FOR AY 2003-04 & 2004-05 ON 07/12/20 07 CREATING HEAVY DEMAND OF RS. 281031/- AND RS. 123220/- RESPECTIVEL Y. SINCE OCT. 1993, WE ARE RUNNING THE GAUSHALA FOR TH E PROTECTION AND SHELTER OF THE ANIMALS SPECIALY COWS WHICH ARE IMPOUNDED BY THE POLICE AND WHICH ARE STRANDED (LAWARIS), RUN THE GAUSHALA WITH TIGHT FINANCES WHICH ARE COLLECTED FROM THE PUBLIC, GOVERNMENT AND OTHER BOA RDS ETC. AND WE ARE KEEPING OUR ACCOUNTS AND GETTING THEM AUDITED AND F ILING THE RETURNS OF INCOME EVERY YEAR. OUR BANK ACCOUNTS WERE SEIZED AND THESE WERE RELEAS ED ON THE CONDITION OF PAYING RS. 10000/- PER MONTH ON ACCOUNT OF DEMAN DS FOR TWO YEARS. ON THE ONE HAND, WE ARE PAYING RS. 10000/- PER MONTH S INCE DECEMBER 2009 AND ON THE OTHER HAND WE ARE NOT HAVING FUNDS TO FE ED THE COWS WHICH IS CAUSING GREAT DIFFICULTY TO US. HONBLE ITAT IN ORDER DATED 25/03/2011 IN APPEAL NO . 900/JP/2010 MENTIONED THE ASSESSEE TRUST WILL BE AT LIBERTY TO FILE THE APPEAL AGAINST ORDER OF CIT, ALWAR DATED 3 RD JANUARY, 2005. SINCE THE ORIGINAL ORDER OF CIT, ALWAR GRANTING REGISTRATION U/S 12A W.E.F. 03/01/20 05 WAS NOT AVAILABLE 3 WITH THE SAMITI, HENCE, WE HAD APPLIED FOR ISSUING CERTIFIED COPY OF ORDER U/S 12A ON 19/04/2011 FOR FILING APPEAL TO HONBLE ITAT. REMINDER WAS FILED ON 16/06/2011 FOR ISSUING THE CERTIFIED COPY. HOWEVER, THE CERTIFIED COPY WAS ISSUED ON 20/07/2011. THEREAFTER, SHRI RAM KUMAR YADAV, VICE PRESIDENT OF THE SAMITI UNDERWENT SURGERY FOR REMOVAL OF HERNIA IN THE THIRD WEEK OF JULY, 2011. HENCE, WE ARE FILING THE APPEAL NOW. WE, THEREFORE, REQUEST YOU TO KINDLY CONDONE THE DE LAY OF 06 YEARS AND ABOUT 7 MONTHS IN FILING THE ITAT APPEAL SINCE TH ERE HAS BEEN REASONABLE CAUSE FOR NOT FILING THE APPEAL WITHIN THE PRESCRIB ED TIME LIMIT. THANKING YOU, YOURS FAITHFULLY, FOR SHRI KRISHAN GAUSHALA SAMITI XXXXXXXXX (S.S. YADAV) SECRETARY. 3. IN SUPPORT OF THE ABOVE APPLICATION, THE ASSESSEE A LSO FILED AN AFFIDAVIT DATED 20/05/2013 OF SH. RAKESH KUMAR, CHA RTERED ACCOUNTANT WHICH READ AS UNDER:- 1. THAT I AM A PRACTICING CHARTERED ACCOUNTANT AND PARTNER OF M/S. S. SINGHAL & COMPANY, BHIWADI. 2. THAT OUR FIRM HAD MADE AN APPLICATION FOR GRANT OF REGISTRATION CERTIFICATE U/S 12A OF IT ACT OF SHRI KRISHAN GAUSH ALA SAMITI, BUDHI BAWAL, TEHSIL KOTKASIM, DISTRICT ALWAR SINCE START OF THE SOCIETY 1993- 94 TO THE CIT, JAIPUR. 3. THAT IN SPITE OF BEST OF EFFORTS PUT UP BY ME AN D OUR OFFICE STAFF, THE ACKNOWLEDGMENT AND OTHER PAPERS RELATED TO THE ABOV E MENTIONED APPLICATION COULD NOT BE LOCATED. 4. THAT THE APPLICATION WAS NEVER DISPOSED OF BY TH E CIT, JAIPUR AND IT IS NOT LOCATED ALSO IN THE OFFICE OF THE CIT, JAIPUR. 4 4. DURING THE COURSE OF HEARING, LEARNED COUNSEL FOR THE ASSESSEE REITERATED THE CONTENTS OF THE AFORESAID APPLICATIO N AND REQUESTED TO CONDONE THE DELAY BY STATING THAT THERE WAS A REASO NABLE CAUSE FOR THE DELAY IN FILING THE APPEAL. 5. LD. D.R. OPPOSED THE AFORESAID APPLICATION FILED FOR CONDONATION OF DELAY. 6. AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE PART IES AND THE MATERIAL ON RECORD, IT APPEARS THAT THE ASSESSEE FI LED THE APPEAL BY KEEPING IN VIEW THE OBSERVATION MADE BY THE ITAT IN ORDER DATED 25/03/2011 IN I.T.A.NO. 900/JP/2010 WHEREIN VIDE PA RA 3, IT HAS BEEN OBSERVED AS UNDER:- 3. WE HAVE HEARD BOTH THE PARTIES. THE ASSESSEE T RUST APPLIED FOR REGISTRATION W.E.F. 18 TH OCTOBER, 1993 ON 3 RD JANUARY, 2005 AND THE REGISTRATION WAS GRANTED W.E.F. 3 RD JANUARY, 2005. AGAINST THIS ORDER THE ASSESSEE COULD HAVE FILED APPEAL BEFORE THE TRI BUNAL THAT THE LD. CIT HAS NOT ALLOWED REGISTRATION W.E.F. THE DATE FR OM WHICH THE ASSESSEE HAS SOUGHT REGISTRATION. THE LD. CIT WAS RIGHT IN HOLDING THAT HE HAS NO POWER TO REVIEW THE ORDER OF HIS PREDECES SOR. THE ASSESSEE TRUST WILL BE AT LIBERTY TO FILE THE APPEAL AGAINST THE ORDER OF CIT, ALWAR DATED 3 RD JANUARY, 2005. THE APPLICATION OF THE ASSESSEE DA TED 13 TH NOVEMBER, 2009 FILED BEFORE THE CIT, ALWAR CANNOT B E CONSIDERED AS AN APPLICATION U/S 154 BECAUSE IT IS NOT FILED WITHIN TIME AVAILABLE U/S 154 OF THE I.T.ACT. HENCE, WE HOLD THAT LD. CIT WAS JUS TIFIED IN REJECTING THE APPLICATION OF THE ASSESSEE DATED 13 TH NOVEMBER, 2009. 5 WE, THEREFORE, BY CONSIDERING THE PECULIAR FACTS OF THIS CASE CONDONE THE DELAY AND THE APPEAL IS ADMITTED. 7 . DURING THE COURSE OF HEARING, LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT LD. CIT HAD NOT CONSIDERED THE SUBMI SSIONS OF THE ASSESSEE FOR GRANTING THE REGISTRATION FROM THE DATE IT WAS CREATED. IT WAS FURTHER SUBMITTED THAT THE LD. CIT WAS EMPOWERED TO CONDONE THE DELAY WHEN THE APPLICATION WAS MOVED BY THE ASSESSEE FOR SEEKI NG REGISTRATION W.E.F. THE DATE OF CREATION OF TRUST. IT WAS STATED THAT THE LD. CIT WITHOUT ASSIGNING ANY COGENT REASON AND AFFORDING REASONABL E OPPORTUNITY OF BEING HEARD, ALLOWED THE REGISTRATION W.E.F. 03/01/2005 I NSTEAD OF 18/10/1993. 8. IN HIS RIVAL SUBMISSIONS, LD. D.R. SUPPORTED TH E ORDER OF THE LD. CIT AND STATED THAT THE REGISTRATION WAS RIGHTLY GRANTE D FROM THE DATE OF APPLICATION. 9 . WE HAVE CONSIDERED THE SUBMISSIONS OF BOTH THE PA RTIES AND CAREFULLY GONE THROUGH THE MATERIAL AVAILABLE ON TH E RECORD. IN THE PRESENT CASE, IT APPEARS THAT THE LD. CIT WHILE GRA NTING THE REGISTRATION FROM THE DATE OF APPLICATION I.E. 03/01/2005, HAS N OT PASSED A SPEAKING ORDER FOR REJECTING THE CLAIM OF THE ASSESSEE TO GR ANT THE REGISTRATION 6 W.E.F. 18/10/1993. WE, THEREFORE, DEEM IT APPROPRI ATE TO REMAND THIS ISSUE BACK TO THE FILE OF LD. CIT TO BE DECIDED AFR ESH IN ACCORDANCE WITH LAW AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 10 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. (ORDER PRONOUNCED IN THE COURT ON 21 ST JANUARY, 2014). SD/- SD/- (HARI OM MARATHA) (N.K.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 21 ST JANUARY, 2014. VR/- COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE LD.CIT 4. THE CIT(A) 5. THE D.R BY ORDER ASSISTANT REGISTRAR, ITAT, JAIPUR.