M/s.Fathima Educational & Charitable Trust, Trivandrum V. The AStt DIT(Exemption), Trivandrum

ITA 84/COCH/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 8430 (ITAT-COCHIN)
• Duration Of Justice: 5 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-07-2016
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Next Hearing Date: 20-07-2016
• Assessment Year: misc
• Appeal Filed On: 15-02-2016
• Court: TRIBUNAL
• Department Lawyers: SHANTAM BOSE
• Assessee Lawyers: S SRIDHAR
• Keywords: Charitable institution; Reasonable cause; Condonation of delay
• Section: 12AA

Judgement Text

ITA NO.84/COCH/2016 1 , , , , IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN . . , ., !' !' !' !' BEFORE S/SHRI B. P. JAIN, AM & GEORGE GEORGE K., JM # # # # ./ I.TA NO.84/COCH/2016 ( $% & /ASSESSMENT YEAR : -) M/S. FATHIMA EDUCATIONAL & CHARITABLE TRUST, KUMPANVILA VEEDU CHENKAL VILLAGE, ARAYOOR POST, AMARAVILA, NEYYANTTINKARA TALUK, TRIVANDRUM-695 122. VS THE ASSISTANT DIRECTOR OF INCOME- TAX(EXEMPTIONS), TRIVANDRUM ( '( '( '( '( /ASSESSEE APPELLANT) ( ) )) ) * * * * '( '('( '( /REVENUE -RESPONDENT) ' . . # ./PAN NO. AAATF 2307B '( + , /ASSESSEE BY SHRI S. SRIDHAR, ADV. ) * '( + , /REVENUE BY SHRI SHANTAM BOSE, CIT(DR) -. + /0 / DATE OF HEARING 20/07/2016 1 & + /0 /DATE OF PRONOUNCEMENT 25/07/2016 2 2 2 2 /ORDER PER B.P. JAIN, AM: THIS APPEAL OF THE ASSESSEE ARISES FROM THE ORDER O F THE LD. COMMISSIONER OF INCOME-TAX, TRIVANDRUM VIDE ORDER DATED 30/09/2010 PASSED U/S. 12AA OF THE INCOME TAX ACT . 2. THE ASSESSEE HAS RAISED AS MANY AS SEVEN GROUN DS OF APPEAL. HOWEVER, AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE POINTE D OUT THAT THERE IS A DELAY IN ITA NO.84/COCH/2016 2 FILING THE APPEAL BEFORE ITAT, COCHIN BENCH BY 1964 DAYS. TO THIS EFFECT, THE ASSESSEE-TRUST HAS FILED AN AFFIDAVIT MAINLY STATIN G THAT THE DELAY WAS CAUSED IN VIEW OF PROFESSIONAL ADVISE FOR APPROACHING THE LD. CIT AFRESH FOR GRANTING REGISTRATION U/S. 12AA, I.E., THE ASSESSEE WAS UNDE R THE BONA FIDE BELIEF THAT THE ENTIRE INCOME IS EXEMPT UNDER THE PROVISIONS OF THE INCOME TAX ACT. IN A NUTSHELL, THE DELAY IN FILING THE APPEAL WAS STATED IN THE AFFIDAVIT TO BE NOT DELIBERATE BUT DUE TO CIRCUMSTANCES EMERGED FROM TH E LEGAL COMPLEXITIES IN UNDERSTANDING THE RELEVANT PROCEDURE ENVISAGED IN T HE ACT BY THE PROFESSIONALS OF THE ASSESSEE. THE ASSESSEE REALIZED THE IMPORTA NCE OF FILING OF THE APPEAL ONLY ON THE REJECTION OF THE PLEA FOR REGISTRATION OF THE TRUST. THE LD. COUNSEL FOR THE ASSESSEE ACCORDINGLY PRAYED TO CONDONE THE DELA Y OF 1964 DAYS. 3. THE LD. CIT(DR), SHRI SHANTAM BOSE ON THE OTHE R HAND RELIED UPON THE DECISION OF THE ITAT, COCHIN BENCH IN THE CASE OF K ERALA CRICKET ASSOCIATION IN I.T.A. NO. 494/COCH/2008 DATED 19/12/2008 WHICH WAS CONFIRMED BY THE HONBLE HIGH COURT OF KERALA IN I.T.A. NO. 588/2009 DATED 3 1-10-2014 WHERE IT HAS BEEN HELD THAT CONDONATION OF DELAY IS NOT A MATTER OF R IGHT AND ACCORDINGLY, ENDORSED THE CONCLUSION OF THE TRIBUNAL REGARDING T HE ABSENCE OF REASONABLE CAUSE FOR CONDONATION OF DELAY AND ACCORDINGLY, DID NOT INTERFERE WITH THE ORDER PASSED BY THE TRIBUNAL DECLINING TO CONDONE S UCH INORDINATE DELAY OF 445 DAYS IN THAT CASE. THE LD. CIT(DR) ALSO RELIED UP ON THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF RAJU RAMCHANDRA BH ANGDE VS. CIT (1984) 148 ITA NO.84/COCH/2016 3 ITR 0391 WHERE IT HAS BEEN HELD THAT EVERY MISTAKE OF COUNSEL AFFORDS A SUFFICIENT CAUSE FOR CONDONATION OF DELAY. ALL DEPENDS UPON TH E FACTS AND CIRCUMSTANCES OF EACH CASE AND ACCORDINGLY UPHELD THE VIEW OF THE TRIBUNAL AND HELD THAT IT IS DIFFICULT TO HOLD THAT ANY ERROR OF LAW HAS BEEN CO MMITTED BY THE TRIBUNAL IN REFUSING TO CONDONE THE DELAY. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUS ED THE FACTS OF THE CASE. THE UNDISPUTED FACT IS THAT THE APPEAL HAS BEEN FILED L ATE BY 1964 DAYS BEFORE THE TRIBUNAL. IN THE AFFIDAVIT FILED BY THE ASSESSEE- TRUST, IT WAS STATED THAT THE APPEAL HAS BEEN FILED LATE BECAUSE OF THE PROFESSIONAL ADV ISE GIVEN BY THE PROFESSIONALS AND IN UNDERSTANDING THE LEGAL COMPLEXITIES OF THE INCOME TAX ACT. IT WAS ALSO STATED THAT THE ASSESSEE WAS UNDER THE BONA FIDE BE LIEF THAT THE ENTIRE INCOME IS EXEMPT UNDER THE PROVISIONS OF THE INCOME TAX AC T AND THE IMPORTANCE OF FILING OF THE APPEAL WAS REALIZED ONLY ON THE REJEC TION OF THE PLEA FOR REGISTRATION, EVEN THOUGH THE ASSESSEE WAS FILING THE RETURN OF I NCOME. 5. AT THE OUTSET, THE UNDERSTANDING OF THE LEGAL COMPLEXITIES BY THE PROFESSIONALS ITSELF IS NOT A SUFFICIENT OR REASONA BLE CAUSE FOR NOT FILING THE APPEAL LATE BY A LONG PERIOD OF 1964 DAYS. SUCH AN INORDI NATE DELAY OF 1964 DAYS HAS TO BE SATISFACTORILY EXPLAINED WHICH HAS NOT BEEN D ONE SO IN THE PRESENT CASE. MOREOVER, THERE IS NO AFFIDAVIT FILED BY THE PROFES SIONALS WHICH HAS BEEN ADMITTED BY THE LD. COUNSEL OF THE ASSESSEE THAT TH E SAME IS MISSING. ITA NO.84/COCH/2016 4 6. THE GROUNDS STATED IN THE AFFIDAVIT BY THE AS SESSEE-TRUST CANNOT BE TERMED AS SUFFICIENT REASONS FOR CONDONATION OF DELAY. TH E LD. CIT(DR) HAS RELIED UPON THE DECISION OF THE ITAT, COCHIN BENCH DATED 19/12/ 2008 IN THE CASE OF KERALA CRICKET ASSOCIATION (SUPRA) AND THE RELEVANT PART O F THE DECISION IS REPRODUCED HEREINBELOW FOR THE SAKE OF CONVENIENCE: 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD INCLUDING THE PRECEDENTS. THE D ELAY OF 445 DAYS IS, IN OUR VIEW, QUITE INORDINATE AND THERE IS NO REASON FOR S UCH A LONG DELAY. THE QUANTUM OF DELAY IS NOT MATERIAL, IF IT IS SUPPORTE D WITH SUFFICIENT REASON. THE COURT CAN TAKE A PRAGMATIC APPROACH TO THE HONEST L ITIGANT AND THE COURT CANNOT HELP A DORMANT PERSON WHO SLEPT OVER THE ORD ER OF THE COMMISSIONER WHO DENIED REGISTRATION UNDER SECTION 12A(A) TO THE KERALA CRICKET ASSOCIATION. IF THEY ARE VIGILANT ENOUGH THAT THE D ENIAL OF THE REGISTRATION BENEFIT HAS SO MUCH INJURIOUS EFFECT ON THEIR INTER EST, THEN THEY SHOULD HAVE APPROACHED THE TRIBUNAL WITHIN THE REASONABLE TIME. THE FLIMSY GROUNDS STATED IN THE PETITION ARE NOT SUFFICIENT REASONS S O AS TO CONDONE THE DELAY. AS RIGHTLY CONTENDED BY THE LEARNED DEPARTMENTAL RE PRESENTATIVE, WITHOUT SUFFICIENT CAUSE OR SUFFICIENT REASONS, DELAY CANNO T BE CONDONED. THERE MUST BE A REASON CONVINCING TO THE TRIBUNAL TO CONDONE T HE DELAY. THE COURTS HAVE ALREADY HELD THAT THE DELAY HAS TO BE EXPLAINE D PROPERLY AND THERE SHOULD BE SUFFICIENT CAUSE WHICH PREVENTED THE ASSE SSEE FROM FILING THE APPEAL. THE REASONABLE AND SUFFICIENT CAUSE ARE AB SENT, EXCEPT FLIMSY GROUNDS URGED IN THE PETITION FOR CONDONATION OF DE LAY WHICH IS NOT SUFFICIENT FOR CONDONATION OF DELAY. UNDER THE ABOVE CIRCUMST ANCES, WE ARE UNABLE TO ACCEPT THE PRAYER OF THE LD. CHARTERED ACCOUNTAN T FOR THE ASSESSEE FOR CONDONATION OF DELAY OF 445 IN FILING THE APPEAL BE FORE THE TRIBUNAL. HENCE, THE APPEAL IS NOT ADMITTED AND IS REJECTED. ITA NO.84/COCH/2016 5 THE SAID DECISION OF THE ITAT, COCHIN BENCH IN THE CASE OF KERALA CRICKET ASSOCIATION (SUPRA) HAS BEEN CONFIRMED BY THE HONB LE HIGH COURT OF KERALA IN THE CASE OF KERALA CRICKET ASSOCIATION IN I.T.A. 58 8/2009 DATED 31/10/2014 AND THE RELEVANT FINDINGS ARE REPRODUCED HEREINBELOW FO R THE SAKE OF CONVENIENCE: 4. AGGRIEVED BY THE ORDER DATED 17/10/2006, THE AP PELLANT FILED AN APPEAL BEFORE THE TRIBUNAL WITH AN APPLICATION TO CONDONE THE DELAY OF 445 DAYS. THE TRIBUNAL DECLINED TO CONDONE THE DELAY AND ACCO RDINGLY, THE APPEAL WAS ALSO DISMISSED. IT IS AGGRIEVED BY THE ORDER OF THE TRIBUNAL, WHICH WAS PASSED ON 19.12.2008, I.T.A. NO. 1529/2008 IS FILED 7. CONDONATION OF DELAY IS NOT A MATTER OF RIGHT. DELAY CAN BE CONDONED BY THE TRIBUNAL ONLY IF IT IS SATISFIED THAT THE DELAY HAS BEEN SATISFACTORILY EXPLAINED BY THE APPELLANT. READING OF THE ORDER PASSED BY T HE TRIBUNAL SHOWS THAT THE APPELLANT FAILED IN PROVIDING ANY SATISFACTORY EXPL ANATION FOR THE INORDINATE DELAY OF 445 DAYS. IT WAS THEREFORE THAT THE TRIBU NAL DECLINED THE PRAYER. 8. HAVING GONE THROUGH THE ORDER PASSED BY THE T RIBUNAL AND THE PERIOD OF THIS APPEAL, WE FULLY ENDORSE THE CONCLUSIONS OF TH E TRIBUNAL REGARDING ABSENCE OF REASONABLE CAUSE FOR CONDONATION OF DELA Y. THEREFORE, WE SEE ABSOLUTELY NO REASON TO INTERFERE WITH THE ORDER PA SSED BY THE TRIBUNAL DECLINING TO CONDONE SUCH INORDINATE DELAY . 7. RELIANCE HAS ALSO BEEN PLACED ON THE DECISION OF THE HONBLE HIGH COURT OF BOMBAY IN THE CASE OF RAJU RAMCHANDRA BHANGDE (SUPR A) WHERE THE HONBLE COURT HAS HELD AS UNDER: HELD IT IS NOT AS IF THAT EVERY MISTAKE OF COUNSEL AFFOR DS A SUFFICIENT CAUSE FOR CONDONATION OF DELAY. ALL DEPENDS UPON FACTS AND C IRCUMSTANCES OF EACH CASE. IT IS OBVIOUS THAT APPLICATION U/S. 35 FOR R ECTIFICATION WAS WHOLLY MISCONCEIVED UNDER THE CIRCUMSTANCES. HAVING REGARD TO THE ENTIRE ITA NO.84/COCH/2016 6 BACKGROUND OF THE CASE AND THE FACT THAT THE COUNSE L HAPPENED TO BE NATURAL FATHER OF THE ASSESSEE, IT IS DIFFICULT TO HOLD THAT ANY ERROR OF LAW HAS BEEN COMMITTED BY THE TRIBUNAL IN REFUSING TO CONDO NE THE DELAY. 8. IN THE CIRCUMSTANCES AND FACTS OF THE CASE A ND THE DECISIONS RELIED UPON HEREINABOVE, WE DO NOT FIND ANY SUFFICIENT CAUSE FO R CONDONATION OF SUCH AN INORDINATE DELAY OF 1964 DAYS AND ACCORDINGLY, THE APPEAL OF THE ASSESSEE IS NOT ADMITTED AND THE SAME IS REJECTED. ALSO, WE DO NOT THINK IT FIT TO DECIDE THE ISSUE ON MERIT. THUS THE APPEAL OF THE ASSESSEE I S DISMISSED. 9. IN THE RESULT, THE APPEAL OF THE ASSESSEE IN I. T.A. NO.84/COCH/2016 IS DISMISSED. ORDER PRONOUNCED IN THE OPE N COURT ON 25-07-2016. SD/- SD/- . ) (GEORGE GEORGE K.) ( . . ) ( B.P. JAIN) /JUDICIAL MEMBER /ACCOUNTANT MEMBER ' /PLACE: /COCHIN 4 /DATED: 25 TH JULY, 2016 GJ/ 2 + )/5 65&/ /COPY TO: 1. '( /M/S. FATHIMA EDUCATIONAL & CHARITABLE TRUST, KUMPA NVILA VEEDU, CHENKAL VILLAGE, ARAYOOR POST, AMARAVILA, NEYYANTTINKARA TALUK, TRIV ANDRUM-695 122. 2. )* '( /THE ASSISTANT DIRECTOR OF INCOME-TAX(EXEMPTIONS), TRIVANDRUM. ITA NO.84/COCH/2016 7 3. -7 / ( )/THE COMMISSIONER OF INCOME-TAX ( EXEMPTIONS) , TRIVANDRUM. 4. -7 / /THE COMMISSIONER OF INCOME-TAX,TRIVANDRUM. 5. 589 )/ , /THE DR/ITAT, COCHIN BENCH. 6. 9: ;. /GUARD FILE. 2- /BY ORDER < /ASSISTANT REGISTRAR . . =0 . > . =0 ., /I.T.A.T., COCHIN