Pooja seva shiksha samiti, Jaipur V. ASSISTANT COMMISSIONER OF INCOME TAX, EXEMPTION, JAIPUR

ITA 890/JPR/2018

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 4362 (ITAT-JAIPUR)
• Duration Of Justice: 2 year(s) 3 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-10-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 16-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ROONI PAUL CIT DHK
• Assessee Lawyers: SIDDARTHA RANKA ADVS
• Keywords: Depreciation; Charitable institution; Principle of natural justice; Corroborative evidences; Condonation of delay; Set aside
• Section: 43; 22

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES A, JAIPUR JH LANHI XLKA ] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE SHRI SANDEEP GOSAIN, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA -@ ITA NO. 890/JP/2018 ASSESSMENT YEAR: 2012-13 POOJA SEVA SHIKSHA SAMITI, OLD ADD:- B-22, GANESH MARG, BAPU NAGAR, JAIPUR. NEW ADD:- IP PHASE IV, OPP. CHOKI DHANI, SITAPURA, JAIPUR. C UKE VS. A.C.I.T.(EXEMPTIONS) JAIPUR. PAN NO.: AAATP 8689 C VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS @ ASSESSEE BY : SHRI SIDDARTHA RANKA (ADVS.) JKTLO DH VKSJ LS @ REVENUE BY : SMT. ROONI PAUL (ADDL.CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 13/10/2020 MN?KKS 'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT :22/10/2020 VKNS'K@ ORDER PER: SANDEEP GOSAIN, J.M. THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A)-3, JAIPUR DATED 29/08/2017 FOR THE A.Y. 2012-13. THE EFFECTIVE GROUND RAISED BY THE ASSESSEE IN THE APPEAL READS AS UNDER: 1. THAT IN THE FACTS AND IN CIRCUMSTANCES OF THE CASE, THE LD. LOWER AUTHORITIES HAS GROSSLY ERRED IN NOT ALLOWING THE CLAIM OF DEPRECIATION AMOUNTING TO RS. 1,09,21,449/- AS AN APPLICATION OF INCOME. 2. THE HEARING OF THE APPEAL WAS CONCLUDED THROUGH VIDEO CONFERENCE IN VIEW OF THE PREVAILING SITUATION OF COVID-19 PANDEMIC. ITA 890/JP/2018_ POOJA SEVA SHIKSHA SAMITI VS ACIT(E) 2 3. THERE IS DELAY OF 51 DAYS IN FILING THIS APPEAL. ALTHOUGH, NO SEPARATE APPLICATION FOR CONDONATION OF DELAY HAS BEEN MOVED BY THE ASSESSEE FOR SEEKING CONDONATION OF DELAY. HOWEVER, THE LD AR ARGUED ON BEHALF OF THE ASSESSEE ORALLY SUBMITTED BEFORE US THAT THE DELAY IN FILING THE PRESENT APPEAL WAS UNINTENTIONAL AND BONAFIDE AND IN THIS RESPECT, FACTUAL SITUATION WAS SUBMITTED BY THE ASSESSEE. 4. ON THE OTHER HAND, THE LD DR COULD NOT REBUT THE FACTS SUBMITTED BY THE ASSESSEE BEFORE US FOR SEEKING CONDONATION OF DELAY. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS RELEVANT MATERIAL ON RECORD. AS REGARDS THE SUFFICIENCY OF CAUSE FOR FILING THE APPEALS BELATEDLY, IT IS SETTLED PRINCIPLES OF LAW THAT THE COURTS HAVE TO TAKE LIBERAL APPROACH WHILE INTERPRETING THE EXPRESSION SUFFICIENT CAUSE FOR CONDONATION OF DELAY. IN CASE OF COLLECTOR, LAND ACQUISITION VS. MST. KATIJI (1987) 167 ITR 471, THE HONBLE SUPREME COURT HAS LAID DOWN THE PRINCIPLE THAT THE POWER TO CONDONE THE DELAY PROVIDED UNDER THE STATUTE IS TO ENABLE THE COURTS TO DO SUBSTANTIAL JUSTICE TO THE PARTIES BY DISPOSING OF THE MATTER ON MERITS, THEREFORE, WHILE CONSIDERING THE MATTERS FOR CONDONATION OF DELAY, THE LAW MUST BE APPLIED IN A MEANINGFUL MANNER WHICH SUBSERVES ENDS OF JUSTICE AND TECHNICAL CONSIDERATIONS SHOULD NOT COME ON THE WAY OF CAUSE OF SUBSTANTIAL JUSTICE. THERE IS NO QUARREL THAT THE EXPLANATION AND REASONS EXPLAINED FOR DELAY MUST BE BONAFIDE AND ITA 890/JP/2018_ POOJA SEVA SHIKSHA SAMITI VS ACIT(E) 3 NOT MERELY A DEVICE TO COVER AN ULTERIOR PURPOSE SUCH AS LACHES ON THE PART OF THE LITIGANT OR AN ATTEMPT TO SAVE LIMITATION IN THE UNDERHAND WAY. IF THE PARTY WHO IS SEEKING CONDONATION OF DELAY HAS NOT ACTED IN MALAFIDE MANNER AND REASONS EXPLAINED ARE FACTUALLY CORRECT THEN THE COURT SHOULD BE LIBERAL IN CONSTRUING THE SUFFICIENT CAUSE AND LEAN IN FAVOUR OF SUCH PARTY. A JUSTICE-ORIENTED APPROACH HAS TO BE TAKEN WHILE DECIDING THE MATTER FOR CONDONATION OF DELAY. HOWEVER, THIS DOES NOT MEAN THAT A LITIGANT GETS FREE RIGHT TO APPROACH THE COURT AT ITS WILL. 6. IF WE APPLY THE SETTLED PRINCIPLES AS LAID DOWN BY THE HONBLE SUPREME COURT AS WELL AS OTHER COURTS ON THE FACTS OF THE PRESENT CASE WE FIND THAT THE ASSESSEE HAS EXPLAINED CAUSE OF DELAY, THEREFORE, IN THE FACTS AND CIRCUMSTANCES OF THE CASE, WE CONDONE THE DELAY OF 51 DAYS IN FILING THE PRESENT APPEAL AND ADMIT THE APPEAL FOR HEARING. 7. IN THE QUANTUM APPEAL, THE ONLY GROUND RAISED BY THE ASSESSEE IS WITH REGARD TO DENYING CLAIM OF DEPRECIATION AS AN APPLICATION OF INCOME TOWARDS THE INCOME EARNED BY THE ASSESEE SOCIETY. HOWEVER, SINCE THE ASSESSEE FAILED TO APPEAR BEFORE THE LD. CIT(A) AND ALSO FAILED TO OFFER ANY EXPLANATION IN RESPECT OR GROUND RAISED BY THE ASSESSEE BEFORE THE LD. CIT(A), THEREFORE, THE LD. CIT(A) WHILE RELYING ON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF H.M. ESUFALI H.M. ABDULALI (1973) 90 ITR 271 HAD DISMISSED THE APPEAL FILED BY THE ASSESSEE. ITA 890/JP/2018_ POOJA SEVA SHIKSHA SAMITI VS ACIT(E) 4 8. NOW BEFORE US, ALTHOUGH, THE ASSESSEE HAD TRIED TO SUPPORT GROUND RAISED BY IT BY RELYING UPON THE DECISION OF THE COORDINATE BENCH OF THE ITAT JAIPUR BENCHES IN THE CASE OF M/S ZEEN-ZAR CHARITABLE FOUNDATION TRUST HOSPITAL AND RESEARCH CENTRE VS ITO (EXEMPTION) IN ITA NO. 337/JP/2018 DATED 10/07/2018 AS WELL AS BY RELYING UPON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF CIT-III VS RAJASTHAN & GUJARATI CHARITABLE FOUNDATION, POONA (2017) (12) TMI 1067 (SC). 9. ON THE CONTRARY, THE LD DR HAS REFUTED THE CLAIM OF ASSESSEE BY RELYING UPON THE FOLLOWING DECISIONS: (I) M/S LISSI MEDICAL INSTITUTIONS VS CIT, KOCHI 24 TAXMANN.COM 9 (KER). (II) J.K. SYNTHETICS LTD. VS UOI (1992) 65 TAXMAN 420 (SC) (III) DIT(E) V CHARANJIV CHARITABLE TRUST (2014) 43 TAXMANN.COM 300 (DELHI) (IV) ESCORTS LTD. VS UOI. 10. BE THAT AS IT MAY, AT THIS STAGE, WE NOTICED THAT SINCE THE ASSESSEE HAD NOT APPEARED BEFORE THE LD. CIT(A) EVEN IN SPITE OF THE FACT THAT SEVERAL OPPORTUNITIES WERE GIVEN TO THE ASSESSEE FOR OFFERING EXPLANATION AND SUPPORTING EVIDENCE IN SUPPORT OF THE GROUND RAISED BY HIM BEFORE THE LD. CIT(A), THEREFORE, AT THIS STAGE, WE ARE NOT GOING INTO THE MERITS OF THE CLAIM RAISED BY THE ASSESSEE. AS FROM THE RECORDS, WE NOTICED THAT LD. CIT(A) HAD PASSED AN EX-PARTE ORDER AS NOBODY APPEARED ON BEHALF OF THE ASSESSEE BEFORE LD. CIT(A). ON PERUSAL OF THE ORDER, WE ALSO ITA 890/JP/2018_ POOJA SEVA SHIKSHA SAMITI VS ACIT(E) 5 NOTICED THAT INITIALLY THE APPEAL WAS FIXED FOR HEARING AND WAS ADJOURNED FROM TIME TO TIME ON VARIOUS OCCASIONS, BUT NONE ATTENDED ON BEHALF OF THE ASSESSEE. WE NOTICED THAT THROUGHOUT THE ASSESSEE REMAINED NON- COOPERATIVE DESPITE AVAILING SEVERAL OPPORTUNITIES, THEREFORE LD. CIT(A) PASSED THE IMPUGNED ORDER, THEREBY TAKING INTO CONSIDERATION, THE STATEMENT OF FACTS AND THE MATERIAL PLACED ON RECORD. 11. IN OUR VIEW, IT WAS THE BOUNDED DUTY OF THE PARTIES I.E. ASSESSEE AS WELL AS THE DEPARTMENT TO APPEAR BEFORE THE LD. CIT(A). SINCE, THIS WAS THE ASSESSEES APPEAL, THEREFORE IT WAS ALL THE MORE IMPORTANT FOR THE ASSESSEE TO APPEAR BEFORE LD. CIT(A). HOWEVER, THE ASSESSEE HAD NOT ACTED WITH DUE DILIGENCE. NEVERTHELESS, THE PRINCIPLES OF NATURAL JUSTICE DEMANDS THAT THE LIS BETWEEN THE PARTIES SHOULD BE DECIDED ON MERITS AFTER PROVIDING DUE OPPORTUNITY OF HEARING TO BOTH THE PARTIES. ACCORDINGLY, IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN THE INTEREST OF JUSTICE, WE SET ASIDE THE IMPUGNED ORDER OF THE LD. CIT(A) AND REMAND THE MATTER BACK TO THE RECORD OF THE LD. CIT(A) FOR DECIDING THE APPEAL AFRESH ON MERITS AFTER GIVING AN OPPORTUNITY OF HEARING TO THE ASSESSEE. THE ASSESSEE IS ALSO DIRECTED TO COOPERATE WITH THE LD. CIT(A) IN DECIDING THE APPEAL ON MERITS AND WITHOUT ANY SUFFICIENT REASON, NOT TO TAKE FURTHER ADJOURNMENTS. IF THE ASSESSEE TAKES ADJOURNMENT WITHOUT ANY ITA 890/JP/2018_ POOJA SEVA SHIKSHA SAMITI VS ACIT(E) 6 SUFFICIENT AND PLAUSIBLE REASON, THEN THE LD. CIT(A) IS AT LIBERTY TO PASS ORDER IN ACCORDANCE WITH MATERIAL AVAILABLE ON RECORD. 12. BEFORE PARTING, WE MAY MAKE IT CLEAR THAT OUR DECISION TO RESTORE THE MATTER BACK TO THE FILE OF LD. CIT(A) SHALL IN NO WAY BE CONSTRUED AS HAVING ANY REFLECTION OR EXPRESSION ON THE MERITS OF THE DISPUTE, WHICH SHALL BE ADJUDICATED BY LD. CIT(A) INDEPENDENTLY IN ACCORDANCE WITH LAW. 13. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES ONLY. ORDER PRONOUNCED IN THE OPEN COURT ON 22 ND OCTOBER, 2020. SD/- SD/- FOE FLAG ;KNO LANHI XLKA (VIKRAM SINGH YADAV) (SANDEEP GOSAIN) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 22/10/2020 *RANJAN VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SHRI RAVI SHANKAR, DHOLPURA. 2. IZR;FKHZ @ THE RESPONDENT- THE I.T.O., WARD-4, BHARATPUR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 897/JP/2019) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR