आयकर अपीलीय अिधकरण, सुरत Ɋायपीठ, सुरत IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER AND Dr ARJUN LAL SAINI, ACCOUNTANT MEMBER आ.अ.सं./ITA No.835/SRT/2023 (AY 2022-23) (Hearing in Physical Court) Jay Gopal Jivdaya Charitable Trust C/o Rameshbhai Jaljibhai, H-1, 2, Suman Sagar Building LIG Avas-2, Vesu, Surat-395007 PAN No. AADTJ 9087 D Vs Commissioner of Income Tax(Exemption) Ahmedabad Room # 609, Floor-6, Aayakar Bhawan (Vejalpur), Nr. Sachin Tower, 100 Foot Road, Anandnagar-Prahladnagar Road, Ahmedabad-380015 अपीलाथŎ/Appellant ŮȑथŎ /Respondent िनधाŊįरती की ओर से /Assessee by Sh. Suresh K. Kabra, C.A राजˢ की ओर से /Revenue by Sh. Ravi Kant Gupta, CIT-DR सुनवाई की तारीख/Date of hearing 27.02.2024 उद्घोषणा की तारीख/Date of pronouncement 08.03.2024 Order under section 254(1) of Income Tax Act PER PAWAN SINGH, JUDICIAL MEMBER: 1. This appeal by assessee is directed against the order of Ld. Commissioner of Income-Tax (Exemption, Ahmedabad [for short to as “Ld. CIT(E)”] passed under section 80G(5) of Income Tax Act, 1961 (‘the Act’) in rejecting application for approval funds dated 19.03.2023 for the assessment year 2022-23. The assessee has raised the following grounds of appeal: “1. The Ld.CIT(E) was not just and proper on the facts of the case and in law in rejecting the application of the Trust for approval u/s 80G(5). 2. PRAYER 2.1 The rejection order may be recalled and approval /s 80G(5) may be directed to be allowed to the appellant. 2.2 Personal hearing may be granted. ITA No.835/SRT/2023 (A.Y 22-23) Jay Gopal Jivdaya Charitable Trust 2 2.3 Any other relief that your honours may deem fit may be granted. 3. The appellant craves leave to add, amend, alter or delete any or all of the above grounds of appeals.” 2. At the outset of hearing, the Ld. Authorized Representative (Ld.AR) for the assessee submits that there is delay of 199 days in filing appeal before Tribunal. The Ld. AR for the assessee submits that he has already filed application for condonation of delay and delay in filing appeal before Tribunal against the impugned order passed by Ld.CIT(E) is neither intentional nor deliberate but due to the ill advice of tax consultant who handling the matter, advised assessee-trust that nothing can be done immediately. For such advice, assessee was banking upon such tax consultant. When the trustee of assessee-trust consulted with present Ld.AR, he advised to file appeal immediately and with the application for condonation of delay, as the order of Ld.CIT(E) is appealable order. The Ld.AR for the assessee submits that assessee has relied on the wrong advice of their previous tax consultant and assessee has good case on merit and is likely to succeeds, if they are heard on merit. The Ld. AR for the assessee submits that on technical consideration should not be taken as to debar the assessee- trust for seeking legal remedy. To support such view, the Ld. AR for assessee relied upon the decision of Hon’ble Apex Court in the case of Collector, Land Acquisition vs. Mst. Katiji and others, reported in 167 ITR 471 (1988 SC 897) (7). 3. On the other hand, the ld CIT-DR for the revenue supported the order of Ld.CIT(E) that assessee undisclosed reasonable and plausible ITA No.835/SRT/2023 (A.Y 22-23) Jay Gopal Jivdaya Charitable Trust 3 explanation for condonation of delay. The plea raised by Ld. AR for the assessee is a self-serving story. In absence of proper explanation or reasonable, the delay may not be condoned and appeal of the assessee may be dismissed at this stage alone. 4. We have considered the rival contentions of both the parties and gone through the order of Ld.CIT(E) carefully on preliminary issue. We find that impugned order was passed on 19.03.2023, however, the present appeal is filed on 04.12.2023. Thus there is delay of 199 days in filing of assessee’s appeal. The Ld.AR for the assessee while making his submission, raised the plea that assessee relied on the ill-advice of their previous tax consultant and could not file appeal within due time. The Ld. AR for the assesse also prayer that technical consideration should not come in the way of justice. We find that on advice of present Ld. AR for the assessee, the assessee filed present appeal. On considering the totality of facts and circumstances, we find that there is no gross or negligence or mala fide intention in filing appeal belated. We find that The Hon'ble Jurisdictional High Court in Jayvantsinh Vaghela Vs ITO (2013) 40 taxmann.com 491 (Guj) held that unless there is a gross negligence or malafide intention, delay in filing appeal to be condoned. We further find that the Hon'ble Bombay High Court in the case of Vijay Vishin Meghani Vs DCIT (2017) 86 taxmann.com 98 (Bom) while considering the similar contention of wrong advice by consultant on condonation of delay in filing appeal, held that wrong advice by Chartered Accountant not to file appeal, the Tribunal was not justified in refusing the condonation of delay in filing appeal. ITA No.835/SRT/2023 (A.Y 22-23) Jay Gopal Jivdaya Charitable Trust 4 5. Further, the Hon'ble Apex Court in the case of Concord of India Insurance Co. Ltd. Vs Smt. Nirmala Devi AIR 1979 SC 1666 held that legal advice tendered by a professional and the litigant acting upon it one way or the other could be a sufficient cause to seek condonation of delay and coupled with the other circumstances and factors for applying liberal principles and then said delay can be condoned. It was further held that an overall view in the larger interest of justice has to be taken. None should be deprived of an adjudication on merits unless the Court of law or the Tribunal/Appellate Authority finds that the litigant has deliberately and intentionally delayed in filing of the appeal. Considering the aforesaid ratio of decisions quoted above, we find that the assessee in the present appeal also took the plea that he was acting on the legal advice of consultant. Thus, we find that there was a reasonable cause for condonation of delay in filing appeal before Tribunal and we condone the delay. Now adverting to merit of the case. 6. Rival submission of both the parties on the merit of the case heard and record perused. The Ld. AR for the assessee submits that application of assessee was rejected by Ld.CIT(E) by taking view that some of the objects of applicant / assessee are religious in nature and assessee- trust is not entitled for approval under section 80G(5). The Ld.CIT(E) while taking such view referred object clause-6, which is specified that “this organization will make various arrangements like katha, havan, bhajan-kirtan, dior, mass puja-prasad”. The Ld.AR for the assessee submits that ground of appeal raised by assessee is squarely covered by the decision of Co-ordinate Bench of Agra in ITA Nos.541- ITA No.835/SRT/2023 (A.Y 22-23) Jay Gopal Jivdaya Charitable Trust 5 542/Agra/2012 in case of Shri Radha Raman Niiwas Trust vs. CIT-1, Agra, wherein the similar application for approval was rejected by taking view that object of assessee trust is religious in nature. The Co- ordinate Bench of Agra on considering the contention held that providing one type of super education to entire human beings cannot be held a non-charitable or religious trust. The order of Agra Tribunal was upheld by Hon’ble Allahabad High Court in Tax Appeal No.202/2013 dated 19.09.2023. The Ld. AR for the assessee further submits that Co-ordinate Chandigarh Benches in the case of Gayatri Parivar Trust Bhoranj vs. CIT(Exemption) (2022) 141 taxmann.com 520 (Chandigarh – Trib.) also held that where assessee-trust is registered under section 122AA applied for approval under section 80G(5) and Commissioner rejected the application on the ground that by stating that some of the objects of the assessee-trust are overtly religious in nature and on plain reading of object of assessee-trust did not anywhere indicate that objects were of religious nature, Commissioner (Exemption) was wrong and in rejecting such application. 7. The Ld. AR for the assessee submits that on plain reading of entire object of the assessee-trust it would reveal that assessee-trust is not a purely religious trust. One clause of Memorandum of Association cannot be considered in an isolation for deciding the character of assessee-trust. The Ld.AR for the assessee prayed that Ld.CIT(E) may be directed to grant approval under section 80G(5) of the Act. The ITA No.835/SRT/2023 (A.Y 22-23) Jay Gopal Jivdaya Charitable Trust 6 assessee-trust is already allowed provisional approval vide order dated 06.10.2021 which is valid upto assessment year 2024-25. 8. On the other hand, Ld.CIT-DR for the Revenue supported the order of Ld.CIT(E). The Ld.CIT-DR submits that while rejecting the application of assessee-trust, Ld.CIT(E) specifically mentioned the object clauses 6 & 10, which are purely religious in nature and order of Ld.CIT(E) is well reasoned and may be sustained. 9. We have considered the rival submission of both the parties and perused the record. We also deliberate on various case law relied by Ld. AR for the assessee. We find that this is a very limited issue in present appeal whether the assessee is purely religious trust or a charitable trust. We find that assessee has placed on record copy of trust deed along with English version of object clause. On perusal of trust deed, we find that assessee is setup for the purpose of education and dissemination of education, to set up primary and higher education for children with mental retardation and for development of means for disabled persons to establish primary, secondary and higher education, hostels of student and to assist in every possible way in a technical education including of computer education. For setting up cow-shed in a hygienic manner to maintain and set-up adult education in night school or to eradicate illiteracy amongst children and backward society including of sports activities. No doubt, assessee- trust has also included certain religious activities in their project close to nearby in certain religious activities will not if so facto will make the institution as purely a religious institution / trust. ITA No.835/SRT/2023 (A.Y 22-23) Jay Gopal Jivdaya Charitable Trust 7 10. We find that Co-ordinate Benches of Agra Bench in the case of Shri Radha Raman Niwas Trust (supra) and Chandigarh Benches in the case of Gayatri Parivar Trust Bhoranj (supra) while considering the similar religious object in the trust-deed held that where some of the objects of assessee’s religious in nature and on reading entire objects of assessee nowhere indicates of objects were religious in nature. The Commissioner has wrongly rejected such application. Considering such decision, we find that action of Ld.CIT(E) in rejecting the application for approval under section 80G(5) of the Act is not justified. Thus, we direct the Ld.CIT(E) to reconsider the application of assessee regarding approval under section 80G(5) and examine the remaining requirements of assessee-trust and to pass order afresh in accordance with law and allow relief to assessee, if assessee fulfilled all requisites conditions for availing approval under section 80G(5) of the Act. For statistical purpose, grounds of appeal raised by assessee-trust is allowed. 11. In the result, appeal of the assessee is allowed for statistical purposes. Order pronounced in the open court on 08/03/2024. Sd/- Sd/- (Dr ARJUN LAL SAINI) (PAWAN SINGH) [लेखा सद˟/ACCOUNTANT MEMBER] [Ɋाियक सद˟ JUDICIAL MEMBER] Surat, Dated: 08/03/2024 Dkp. Out Sourcing Sr.P.S ITA No.835/SRT/2023 (A.Y 22-23) Jay Gopal Jivdaya Charitable Trust 8 Copy to: 1. Appellant- 2. CIT(E) 3. CIT 4. DR 5. Guard File True copy/ By order // True Copy // Sr. Private Secretary /Private Secretary /Assistant Registrar, ITAT, Surat