Adivasi Vikas Seva Mandal, Navsari V. CIT (Exemption), Ahmedabad

ITA 84/SRT/2024

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 2624 (ITAT-SURAT)
• Duration Of Justice: 3 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-04-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 23-04-2024
• Assessment Year: misc
• Appeal Filed On: 28-01-2024
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAVIKANT GUPTA
• Keywords: Opportunity of being heard; Principle of natural justice; Additional evidence; Procedural lapse
• Section: 80G; 12A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JIDICIAL MEMBER & SHRI BIJAYANDA PRUSETH, ACCOUNTANT MEMBER आयकर अपील सं./ITA No.84/SRT/2024 Assessment Year: (2024-25) (Physical Court Hearing) Adivasi Vikas Seva Mandal Kevdi Road, AT & PO : Sara, Tal: Vansda, Navsari-396590 Vs. Commissioner of Income-Tax (Exemption), Ahmedabad, Room No.609, Aayakar Bhawan, Vejalpur, Nr. Sachin Tower, 100 Foot Road, Anandanagar-Prahladnagar Road, Ahmedabad-380015 èथायीलेखासं./जीआइआरसं./PAN/GIR No.: AADTA 7509 B (अपीलाथŎ/Appellant) (ŮȑथŎ /Respondent) िनधाŊįरती की ओर से /Appellant by Shri Deven K. Kapadia, CA िनधाŊįरती की ओर से /Respondent by Shri Ravi Kant Gupta,CIT-DR अपील पंजीकरण/Appeal instituted on 29.01.2024 सुनवाई की तारीख /Date of Hearing 24.04.2024 घोषणा की तारीख /Date of Pronouncement 30.04.2024 आदेश / O R D E R PER BIJAYANDA PRUSETH, AM: This appeal emanates from the order dated 16.10.2023 passed by the Learned Commissioner of Income Tax (Exemption), Ahmedabad (in short, “ the CIT(E)”) wherein Ld.CIT(E) rejected assessee’s application for approval of fund under section 80G(5) of the Income Tax Act, 1961 (for short, ‘the Act’). The ground raised by the appellant is as under: - “1. The CIT(Exemption), Ahmedabad has erred in rejecting the appellant’s application filed for approval under clause (iii) of first proviso to section 80G(5) of the Income Tax Act, 1961 solely on the ground of delay in filing which in fact is filed within the time frame. 2 ITA No.84/SRT/2024/ AY.24-25 Adivasi Vikas Seva Mandal 2. The CIT(Exemption), Ahmedabad has erred in misinterpreting the spirit and intent of clause (ii) of Proviso to Section 80G(5) while applying it to present case by dismissing the application filed vide clause (iii) of first Proviso to Section 80G(5) without considering the fact that eh time limit for application for final registration of six months from the date of commencement of activities is not applicable to existing trust applying under clause (iii) of Proviso to Section 80G(5) as the appellant has already commenced its activities in F.Y. 2006-07 i.e. well before the amendment. 3. The appellant seeks a fair and impartial evaluation of its application for approval under clause (iii) of first proviso to section 80G(5), taking into consideration the genuine intentions and good faith efforts of the appellant. The rejection of the application by the CIT(Exemption), Ahmedabad without due consideration violates the principles of natural justice and causes resulting hardship on the part of the assessee. 4. Without prejudice, the CITT(Exemption), Ahmedabad rejected the application on the premise that the appellant has not filed Form No.10AB (under section 80G(5)(iii)) within the prescribed time limit. However, the delay in filing the application under clause (iii) of first proviso to Section 80G(5) was unintentional and the assessee should not be punished for a procedural lapse. 5. On the facts and merits of the case, the appellant craves for admission of additional evidences in the interest of natural justice and equity. The appellant craves leave to add, amend, alter, edit, delete, modify or change all or any of the grounds of appeal at the time of or before the hearing of the appeal.” 2. The appeal filed by the assessee is delayed by 45 days. The assessee has filed an affidavit giving reasons for delay in filing of appeal before the Tribunal. In the affidavit, it has been stated that the assessee-trust was granted provisional approval on 14.10.2021 and the Accountant of the assessee-trust filed Form No.10AB for obtaining final registration u/s 12A and 80G(5) of the Act on 15.04.2023. The Accountant logged in the ITD portal after a few months and found that the order u/s 80G has been passed rejecting the request of the assessee-trust. It is stated in the order passed u/s 80G(5) that the application of the assessee-trust in Form 3 ITA No.84/SRT/2024/ AY.24-25 Adivasi Vikas Seva Mandal No.10AB and u/s 12A has been rejected. On further consultation with a Chartered Accountant, it was advised that separate appeals are to be filed for u/s 12A and u/s 80G(5) and not to wait for u/s 12A rejection so far as appeal for u/s 80G(5) is concerned and hence, there was a delay in filing the appeal. The Ld. Authorized Representative (Ld.AR) has requested to condone the delay in filing the appeal in the interest of justice and resolve the genuine hardship due to cancellation of the registration of assessee- trust. 3. On the other hand, Learned Commissioner of Income-Tax – Departmental Representative (Ld.CIT-DR) for the Revenue opposed the prayer of the assessee for condonation of delay. 4. We have considered the reasons given by the Ld. AR and perused the accompanied documents along with the affidavit. We find that the delay of 45 days in filing the appeal was not deliberate and intentional on the part of assesse. We are satisfied that there was sufficient cause for not presenting the appeal within the time allowed u/s 253(3) of the Act. Hence, the delay is condoned and we proceed to dispose the appeal on merit. 5. The fact of the present case in brief are that the application for approval under clause-(iii) of first proviso to sub-section (5) of Section 80G 4 ITA No.84/SRT/2024/ AY.24-25 Adivasi Vikas Seva Mandal of the Act was filed on 15.04.2023. The date of registration/ incorporation in this case is 19.07.2006 as per Form No.10AB. The applicant had been granted provisional approval on 15.10.2021 under clause (iv) of first proviso to sub-section (5) of Section 80G for the period commencing from AY 2022-23.Since,the assessee has filed the present application in Form No.10AB, u/s 80G(5) of the Act on 15.04.2023, the Ld.CIT(E) issued notice on 25.08.2023 requesting assessee to explain as to why the application filed u/s 80G(5)(iii) in Form No.10AB should not be treated as not filed within due date specified in the Act and the same should not be rejected. In absence of any details from the applicant, he treated the application as non-maintainable. He also mentioned that the application filed by applicant on 15,.04.2023 in Form No.10AB for registration u/s 12A(1)(ac)(iii) of the Act has already been rejected vide order dated 09.10.2023. 6. The Ld.AR submitted that order passed by the Ld.CIT(E) is an ex parte order, as the assessee could not file relevant documents and evidences before the Ld.CIT(E). However, now the assessee is ready to submit relevant documents and details before the Ld.CIT(E) and hence matter may be remitted back to the file of LD.CIT(E) for fresh adjudication. 5 ITA No.84/SRT/2024/ AY.24-25 Adivasi Vikas Seva Mandal 7. On the other hand, Ld.CIT-DR for the Revenue submitted that assessee-trust was negligent during the proceedings before Ld.CIT(E). Therefore, the appeal of assessee may be dismissed. 8. We have heard the rival submissions of both the parties and perused the materials available on record. We find that Ld.CIT(E) issued two notices on 25.08.2023 and 23.09.2023 respectively but there was no compliance from the assessee. As there was no compliance by the assessee, the Ld. CIT(E) treated the application of the appellant as non- maintainable as the application was not filed within the prescribed time limit. Hence, he has not decided the appeal on merit. We have again perused the record and find that we have restored the appeal back to the file of the Ld.CIT(E) in case of assessee, wherein assessee’s application u/s 12(1)(ac)(iii) of the Act had been rejected by the Ld.CIT(E) and the provisional registration was also cancelled. We find that CBDT in its recent Circular No.7/2024 issued on 25. 04.2024, which came to our notice at the time of finalizing this order has extended the time limit for availing registration under section 10(23C), 12A / 12AB as well as for approval under section 80G(5) upto 30.06.2024. Therefore, the benefit of such extended period should also be given to the assessee. Thus, considering this additional benefits allowed by the CBDT, this appeal require fresh consideration on merit at the end of ld CIT(E). Hence, we are of the view that one more opportunity should be given to the assessee to file relevant 6 ITA No.84/SRT/2024/ AY.24-25 Adivasi Vikas Seva Mandal documents and evidences before Ld. CIT(E) and to plead his case before the Ld. CIT(E). It is also settled law that principles of natural justice require that the affected party is granted sufficient opportunity of being heard to contest his case. Therefore, without delving much deeper into the merits of the case, in the interest of justice, we restore the matter back to the file of Ld. CIT(E) for de novo adjudication and pass a speaking order after affording sufficient opportunity of being heard to the assessee. The assessee is also directed to file necessary documents and evidences as needed by the Ld. CIT(E) as and when called for. For statistical purposes, the appeal of the assessee is treated as allowed. 6. In the result, appeal filed by the assessee is allowed for statistical purposes. Order is pronounced on 30/04/2024 in the open court. Sd/- Sd/- (PAWAN SINGH) (BIJAYANANDA PRUSETH) JUDICIAL MEMBER ACCOUNTANT MEMBER स ू रत/Surat Ǒदनांक/ Date: 30/04/2024 DKP Outsourcing Sr.P.S Copy of the Order forwarded to 1. The Assessee 2. The Respondent 3. The CIT(A) 4. CIT 5. DR/AR, ITAT, Surat 6. Guard File By Order // True Copy // Assistant Registrar/Sr. PS/PS ITAT, Surat