Nandkishor Education Society, Nashik V. ITO, Nashik

ITA 942/PUN/2010

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 6759 (ITAT-PUNE)
• Duration Of Justice: 6 year(s) 8 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-03-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 25-06-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: S N DOSHI
• Keywords: Reasonable cause; Condonation of delay; Ignorance of law
• Section: 80G; 12A; 12AA; 12

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE , ! '# $ BEFORE MS. SUSHMA CHOWLA, JM AND SHRI ANIL CHATURV EDI, AM % / ITA NO. 942/PUN/2010 & & / ASSESSMENT YEAR : 2009-10 NANDKISHOR EDUCATION SOCIETY, ARPAN BLOOD BANK, 102/103, DR. ATHAWALE CHAMBERS, 1ST FLOOR, OPP. GAVKARI PRESS, NASHIK 422 001 . /APPELLANT PAN: AAABN0104A VS. COMMISSIONER OF INCOME TAX OFFICER-1, NASHIK . / RESPONDENT / APPELLANT BY : SHRI S.N. DOSHI / RESPONDENT BY : SHRI RAJEEV KUMAR / DATE OF HEARING : 06.02.2017 / DATE OF PRONOUNCEMENT: 21.03.2017 ' / ORDER PER SUSHMA CHOWLA, JM: THIS APPEAL FILED BY THE ASSESSEE IS AGAINST THE ORDER OF C IT-I, NASHIK DATED 13.08.2009 AGAINST ORDER PASSED UNDER SEC TION 12AA(3) OF THE INCOME-TAX ACT, 1961 (IN SHORT THE ACT). 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL:- 1. THE LEARNED COMMISSIONER OF INCOME TAX-1, NASHIK HAS ERRED IN CANCELLING THE REGISTRATION OF THE ASSESSEE AS A CH ARITABLE TRUST UNDER SECTION 12A OF THE INCOME TAX ACT, 1961. ITA NO.942/PUN/2010 NANDKISHOR EDUCATION SOCIETY 2 2. THE LEARNED COMMISSIONER OF INCOME TAX-1, NASHIK HAS OBSERVED THAT THE SOCIETY IS CARRYING ON OTHER OBJECTS OF PU BLIC UTILITY & IS RENDERING SERVICES IN THE NATURE OF TRADE, COMMERCE OR BUSINESS & THEREFORE CANCELLED REGISTRATION UNDER SECTION 12AA AND OTHER PROVISIONS OF THE ACT. 3. WITHOUT PROPERLY APPRECIATING FACTS AND CIRCUMST ANCES OF THE CASE AND PROVISIONS OF LAW, THE LEARNED COMMISSIONER OF INCOME TAX-1, NASHIK HAS ERRED IN PASSING ORDER UNDER SECTION 12A A(3) OF THE INCOME TAX ACT, 1961 CANCELLING REGISTRATION OF THE ASSESSEE AS A CHARITABLE AND RELIGIOUS TRUST. 4. THE LEARNED COMMISSIONER OF INCOME TAX-1, NASHIK HAS MADE THE ORDER DATED 13.08.2009 IN VIOLATION OF PRINCIPLES O F LAW AND THEREFORE THE ORDER NEEDS TO BE CANCELLED & REGISTR ATION OF THE TRUST UNDER SECTION 11, 12 & 80G BE ALLOWED. 5. THE APPELLANT CRAVES LEAVE TO ADD, AMEND OR ALTE R ANY OF THE GROUNDS OF APPEAL. 3. THE ASSESSEE TRUST WAS ENGAGED IN RUNNING BLOOD BAN K AND THE COMMISSIONER ISSUED SHOW CAUSE NOTICE TO ASSESSEE AS IT WAS CARRYING ON ACTIVITIES OF BLOOD BANK ON COMMERCIAL BASIS. IN VIEW OF AM ENDMENT TO SECTION 2(15) OF THE ACT, COMMISSIONER CANCELLED THE REGIS TRATION GRANTED TO ASSESSEE UNDER SECTION 12A OF THE ACT. THE ASSESSEE IS IN APPEAL AGAINST THE SAID ORDER OF COMMISSIONER. THE PRESENT APPEAL IS FILED AFTER DELAY OF 253 DAYS. THE ASSESSEE FILED AFFIDAVIT DATE D 9 TH JULY, 2012 EXPLAINING THE REASON FOR THE DELAY WHICH READS AS UNDER; I, NANDKISHOR KANTILAL TATHED, AGED ABOUT 45 YEARS, SON OF SHRI KANTILAL TATHED RESIDING AT BAZAR PETH, AT POST LASALGAON, T AL: NIPHAD, DIST. NASHIK, DO HEREBY SOLEMNLY AFFIRM ON OATH THAT 1. I AM THE TRUSTEE IN NANDKISHOR EDUCATION SOCIETY, T HE TRUST, HAVING OFFICE AT ARPAN BLOOD BANK, 102/103, LD. D.R. ATHAW ALE CHAMBERS, 1 ST FLOOR, OPPOSITE GAVKARI PRESS, NASHIK-422001. THE SAID TRUST IS ASSESSED TO INCOME TAX UNDER THE JURISDICTION OF TH E INCOME TAX OFFICER, WARD 1(1), NASHIK AND THAT PERMANENT ACCOU NT NO. OF THE TRUST IS AAABN0104A. 2. THE ASSESSEE TRUST HAD FILED AN APPEAL FOR THE ASSE SSMENT YEAR 2009-10 BEFORE THE HONORABLE ITAT PUNE (APPEAL NO.9 42/PUN/2010) ON JUNE 25, 2010. THE APPEAL WAS FILED AGAINST THE HON. CITS ORDER UNDER SECTION 12AA(3) DATED AUGUST 13, 2009. THE DU E DATE FOR FILING ITA NO.942/PUN/2010 NANDKISHOR EDUCATION SOCIETY 3 APPEAL WAS OCTOBER 12 TH , 2009. THUS THE APPEAL WAS FILED BELATEDLY BY 256 DAYS. 3. THE TRUST RECEIVED THE ORDER PASSED BY THE HON. COM MISSIONER OF INCOME TAX-I, NASHIK, UNDER SECTION 12AA(3) DATED A UGUST 13, 2009 BEARING NO. NSK/CIT - I/TECH/12A/09-10/2151. THE AS SESSEE TRUST HAD MADE AN APPLICATION FOR REGISTRATION UNDER SECT ION 12A WHICH WAS CANCELLED VIDE THE AFORESAID ORDER MENTIONED. 4. LATER ON, AN ORDER DATED MAY, 25, 2010 WAS RECEIVED BY THE ASSESSEE TRUST WHICH FURTHER STATED THAT THE REGIST RATION LETTER DATED NOVEMBER 16, 2009 APPLIED BY THE ASSESSEE COULD NOT BE CONSIDERED SINCE IT WAS ALREADY CANCELLED BY THE ASSESSING OFF ICER. 5. THE ASSESSEE TRUST BELONGS TO A SEMI-URBAN AREA WHI CH FALLS IN THE DISTRICT OF DHULE. SINCE THE ASSESSEE TRUST IS BELO NGING TO SUCH A RURAL AREA, IT FAILS TO BE ACKNOWLEDGED BY THE LITIGATION S OF LAW AND THE LEGAL PROCEEDINGS AND FAILS TO BE AWARE OF THE ASSE SSMENT PROCEDURES TO BE CARRIED OUT BY THEM IN RESPECT OF THE ORDER P ASSED BY THE COMMISSIONER OF INCOME TAX-I, NASHIK. 6. LATER, THE ASSESSEE TRUST BECAME AWARE OF THE FORMA LITIES TO BE CARRIED OUT BY IT IN REGARD OF THE ORDER PASSED AFT ER CONSULTING THE REQUIRED TAX CONSULTANTS. 7. CONSEQUENTLY, RELEVANT EFFORTS AND PROCEDURES WERE CONDUCTED IN RESPECT OF FILING AN APPEAL IN FORM NO. 36 BEFORE Y OUR HONOUR. THUS THE APPEAL IS BEING FILED ON A BELATED DATE. WE HAD FILED A LETTER DATED JULY 01, 2010 WITH THE HON. ASSTT. REGISTRAR, THE INCOME TAX APPELLATE TRIBUNAL, PUNE ON JULY 09, 2010 REQUESTING FOR CONDONING THE DELAY IN FILING THE AP PEAL AND ADMIT THE APPEAL MEMO. I FURTHER AFFIRM THAT WHATEVER IS STATED ABOVE IS T RUE TO THE BEST OF MY KNOWLEDGE AND BELIEF. THIS AFFIDAVIT IS MADE AT NASHIK ON 9 TH DAY OF JULY, 2012. 4. DURING COURSE OF HEARING OF THE APPEAL, THE ASSESSEE, T HEREAFTER, FILED ANOTHER AFFIDAVIT WHICH IS NOTARIZED ON 07.05.2016 AND T HE SAME READS AS UNDER; I, NANDKISHOR KANTILAL TATED, AGED ABOUT 47 YEARS, OCCUPATION: MEDICAL PRACTITIONER / SERVICE, RESIDING AT NAVKARDEEP BUNG LOW, NEAR SUPREME KIDNEY CENTRE, SADHU VASWANI ROAD, NASIK 422002, HEREBY ST ATE ON SOLEMN AFFIRMATION AS UNDER : ITA NO.942/PUN/2010 NANDKISHOR EDUCATION SOCIETY 4 1. THAT I AM THE CHAIRMAN OF NANDKISHORE EDUCATION SOC IETY, A CHARITABLE MEDICAL INSTITUTION MAINLY CARRYING ON T HE BLOOD BANK ACTIVITY IN VARIOUS CITIES OF MAHARASTRA. 2. THE ASSESSEE TRUST RECEIVED THE ORDER ON 13.08.200 9 PASSED BY THE CIT U/S 12 AA(3) CANCELLING THE REGISTRATION. THUS THE APPEAL WAS REQUIRED TO BE FILED ON OR BEFORE 12.10.2009. THE A PPEAL HOWEVER, IS FILED ON 25.06.2010. THEREFORE, THERE IS DELAY OF 2 56 DAYS. THUS ADMITTEDLY THERE HAS BEEN SUBSTANTIAL DELAY IN FILING THE APPEAL AND THE REASONS FOR DELAY ARE STATED IN THE SUBSEQU ENT PARAS. 3. THAT THE TRUSTEES OF THE ASSESSEE TRUST ARE EXCLUSI VELY INVOLVED IN MEDICAL PROFESSION OR RENDERING SERVICES IN RELATIO N TO THE BLOOD BANKING ACTIVITY. THEY WERE TOTALLY UNAWARE ABOUT T HE PROVISIONS RELATING TO FILING OF AN APPEAL AS WELL AS PROVISIO NS LAID DOWN IN INCOME TAX ACT, 1961. IT IS FAIRLY ADMITTED THAT BY REASON OF THIS ABSOLUTE IGNORANCE OF THE PROVISIONS RELATING TO FI LING OF APPEAL ETC. THE TRUSTEES DID NOT REALIZE THE SERIOUSNESS OF THIS OR DER. IT IS FURTHER SOLEMNLY STATED THAT THE ASSESSEE TRUST HAD NO BENE FIT OF GUIDANCE OF THE TAX CONSULTANT. DESPITE THE FACT THAT THE ACCOU NTS WERE AUDITED BY ONE CHARTERED ACCOUNTANT AS REQUIRED UNDER BOMBAY P UBLIC TRUST ACT, 1960 UNFORTUNATELY, IT IS LEARNT THAT HE HAD N O MUCH OF THE DEALING WITH THE CASE RELATING TO REGISTRATION U/S 12A, RECOGNITION U/S 80G ETC. PERHAPS THERE ARE THE AREAS IN TAXATION RE LATING TO TRUST WHICH ARISE IN FEW CASES. PRAYER : THE APPELLANT THEREFORE PRAYS THAT DESPITE FAIRLY A DMITTING DISPROPORTIONATE DELAY IN FILING THIS APPEAL, THE F ACTUAL REASONS EXPLAINED ABOVE MAY KINDLY BE CONSIDERED JUDICIALLY AND SYMPA THETICALLY AND THE DELAY BE CONDONED AND OBLIGED AND PARTICULARLY TAKI NG NOTE OF THE FACT THAT THE APPELLANT TRUST IS THE MEDICAL CHARITABLE INSTI TUTION CARRYING ON THE LOUD ACTIVITY OF THE BLOOD BANK MAKING AVAILABLE THE BLO OD TO THE NEEDY PATIENTS AT CONSIDERABLY CONCESSIONAL RATE. THE UNDERSIGNED FURTHER SOLEMNLY AFFIRMS THAT WHATE VER IS STATED ABOVE IS TRUE AND CORRECT TO THE BEST OF MY KNOWLED GE AND BELIEF. 5. A PERUSAL OF THE SAID AFFIDAVIT REFLECTS THE CONTENTION OF THE ASSESSEE THAT THEY WERE TOTALLY UNAWARE ABOUT THE PR OVISIONS RELATING TO FILING OF AN APPEAL AS WELL AS PROVISIONS LAID DOWN IN INCOME TA X ACT. BECAUSE OF THIS REASON OF IGNORANCE OF THE PROVISIONS RELA TING TO FILING OF APPEAL, THE TRUSTEE CLAIMED THAT THEY DID NOT REALISE THE SERIOUSNESS OF THE ORDER. IT IS FURTHER SOLEMNIZED THAT THE ASSESSEE TR UST HAD NO BENEFIT OF GUIDANCE OF TAX CONSULTANT. THE ASSESSEE CLAIMS THAT THE ACCOUNTS WERE AUDITED BY CHARTERED ACCOUNTANT. HOWEVE R, HE HAD NOT ITA NO.942/PUN/2010 NANDKISHOR EDUCATION SOCIETY 5 MUCH DEALING WITH THE CASES RELATING TO REGISTRATION U/S 12A, RECOGNITION U/S 80G OF THE ACT. THE ASSESSEE PRAYED TH AT THE DELAY IN THE CASE MAY BE CONDONED. 6. O N THE NEXT DATE OF HEARING, ANOTHER SUPPLEMENTARY AFFIDAV IT WAS FILED WHICH READS AS UNDER; I, NANDKISHOR KANTILAL TATED, AGE ABOUT 48, OCCUPAT ION MEDICAL PRACTICENER, RESIDING AT NAVKARDEEP BUNGLOW, NEAR S UPREME KIDNEY CENTER, SADHU WASWANI ROAD, NASHIK 422002, HERE BY STATE ON SOLEMN AFFIRMATION AS UNDER- 1. THAT I HAVE FILED AN AFFIDAVIT DATED 07/05/2016 EXP LAINING THE REASONS THAT CAUSED DELAY IN FILING THE APPEAL. VID E THIS SUPPLEMENTARY AFFIDAVIT I STATE ANOTHER VITAL REASO N SUPPORTING MY IGNORANCE RELATING TO THE FILING OF THE APPEAL AS W ELL AS SUPPORTING THE ADDITIONAL FACT CAUSING DELAY IN FILING THE APPEAL. 2. THAT OUR INSTITUTION HAS ON RECORD ADVOCATE SHRI RA MESH C. SHINDE WHO IS ENTRUSTED WITH ALL THE LEGAL MATTERS CONCERN ING THE INSTITUTION SUCH AS ISSUES TO BE ARGUED AND SORTED OUT BEFORE C HARITY COMMISSIONER THAT ARISE UNDER BOMBAY PUBLIC TRUST AC T, THE SOCIETIES REGISTRATION ACT, 1860 ANY CIVIL MATTERS ETC. 3. THAT ON RECEIPT OF THE ORDER OF THE CIT CANCELLING THE REGISTRATION, IN A ROUTINE MANNER THE SAME WAS HANDED OVER TO THE SAID ADVOCATE MR. RAMESH C. SHINDE. THE SAID ADVOCATE BY REASON OF H IS PREOCCUPATION WITH SEVERAL OTHER MATTERS FOR QUITE A SOMETIME DID NOT LOOK INTO THIS ORDER. THEREAFTER, ON REFERRING TO THIS ORDER AND H AVING FOUND THAT THE ISSUE RELATES TO INCOME TAX ACT, 1961 AND AS HE IS NOT ENGAGED IN ANY TAX PRACTICE RETURNED THE SAID ORDER AND IN THE PROCESS THIS DELAY HAS CAUSED. ADVOCATE SHRI RAMESH C. SHINDE HAS SEPARATELY DECLA RED THIS TRUE POSITION IN HIS SWORN AFFIDAVIT DATED 21/11/2016. I AFFIRM THAT ALL THAT WHATEVER IS STATED ABOVE IN THIS SUPPLEMENTARY AFFIDAVIT IS TRUE AND CORRECT TO THE BEST OF MY KNO WLEDGE AND BELIEF. 7. THE SUPPLEMENTARY AFFIDAVIT NOTARIZED ON 23.12.2016 AGA IN TALKS OF IGNORANCE RELATING TO FILE OF THE APPEAL IN DELAY. IT IS FURTHER STATED THAT THE INSTITUTION HAS ON RECORD ADVOCATE, SHR I RAMESH C. SHINDE WHO WAS ENTRUSTED WITH ALL THE LEGAL MATTERS CONCE RNING THE INSTITUTION BEFORE THE CHARITY COMMISSIONER, THE SOCIETIES REGISTRATION AUTHORITY, ANY CIVIL MATTERS ETC. THE ASSESSEE THEREBY S OLEMNLY ITA NO.942/PUN/2010 NANDKISHOR EDUCATION SOCIETY 6 INFORMED THAT ON RECEIPT OF ORDER OF THE COMMISSIONER CAN CELLING THE REGISTRATION, THE SAME WAS HANDED OVER TO THE SAID ADVO CATE WHO BECAUSE OF HIS PREOCCUPATION DID NOT LOOK INTO THE ORDER AND AFTER GAP OF TIME, HE RETURNED THE SAID ORDER AS HE WAS NOT ENGA GED IN TAX PRACTICE. THE AFFIDAVIT OF THE ADVOCATE SHRI RAMESH C. SHINDE WAS ALSO ENCLOSED. HIS ENCLOSED SWORN AFFIDAVIT CLAIMS THAT THE CHAIR MAN OF THE ASSESSEE TRUST HAD FORWARDED THE ORDER OF THE COMMISSIO NER CANCELLING REGISTRATION, TO HIM, WITH THE DIRECTION TO LOOK INTO IT. HE FUR THER STATES THAT THE SAID ORDER REMAINED WITH HIM UNATTENDED BECAUS E HE WAS HARD PRESSED WITH OTHER LEGAL MATTERS. HE CLAIMS THAT THE SAID ORDER REMAINED WITH HIM FOR AROUND 7 TO 8 MONTHS AND WHEN HE CAME TO KNOW THAT THE ORDER WAS RELATING TO INCOME TAX, IT WAS HANDED OVER TO THE CHAIRMAN EXPLAINING THAT HE DOES NOT DEAL WITH THE I NCOME TAX MATTERS AND THE SAME SHOULD BE HANDED OVER TO AN ADV OCATE OR CHARTERED ACCOUNTANT ENGAGED IN THE INCOME TAX MATTER S. HE SOLEMNLY STATES THAT THE ORDER DATED 13.08.2009 WAS HANDED OVE R TO HIM SOMEWHERE IN THE MONTH OF SEPTEMBER AND THIS WAS THE R EASON CAUSING DELAY IN FILING APPEAL LATE BEFORE THE TRIBUNAL. 8. THE LD. AR FOR THE ASSESSEE HAS TIME AND AGAIN STATE D THAT THE TRIBUNAL APPEARS TO HAVE CONDONED THE DELAY ON 18.07.20 12 I.E THE DATE ON WHICH ISSUE OF CONDONATION OF DELAY WAS FIXED FOR H EARING. HOWEVER, WE FIND NO MERIT IN THE PLEA OF THE ASSESSEE IN TH IS REGARD, SINCE NO ORDER OF CONDONING DELAY IN FILING APPEAL LATE, IS AVAILA BLE ON RECORD. ACCORDINGLY, DURING COURSE OF HEARING, THE ASSESS EE WAS ASKED TO SUBSTANTIATE ITS CLAIM AND JUSTIFY THE REASON FOR FILING THE APPEAL LATE BY 253 DAYS. IT IS UNDISPUTED FACT THAT THE APPEAL WAS FILE D AFTER THE ITA NO.942/PUN/2010 NANDKISHOR EDUCATION SOCIETY 7 DELAY OF 253 DAYS. THE LD. AR FOR THE ASSESSEE PLACED RE LIANCE ON THE VARIOUS JUDGMENTS OF THE HONBLE SUPREME COURT IN THE FOLLOWING DECISIONS: I) COLLECTOR, LAND ACQUISITION VS. MST. KATIJI & ORS R EPORTED IN 167 ITR 0471 . II) VEDABAI ALIAS VAIJAYANATABAI BABURAO PATIL V/S. SHAN TARAM BABURAO PATIL, REPORTED IN 253 ITR 798 (SC) III) STATE OF HARYANA V/S. CHANDRA MANI, CIVIL APPEAL NOS . 4118 & 4119 OF 1996. IV) IMPROVEMENT TRUST, LUDHIANA V/S. UJAGAR SINGH & ORS , 2010, CIVIL APPEAL NOS. 2395 OF 2008. 9. THE LD. D.R. FOR THE REVENUE STRONGLY OPPOSED THE PLE A RAISED BY THE ASSESSEE FOR CONDONATION OF DELAY IN FILING APPEAL LATE BE FORE THE TRIBUNAL. THE LD. D.R FOR THE REVENUE POINTED OUT THAT THE ASSESSEE SAYS THAT HE HAS NO LEGAL SUPPORT. HE DREW OUR ATTENTIO N TO THE PAGE NOS. 98 TO 139 OF THE PAPER BOOK WHICH ARE AUDIT REPORT S FILED BY THE CHARTERED ACCOUNTANT AND SUBMITTED THAT THE ASSESSEE WAS SUPPORTED BY SERVICES OF CHARTERED ACCOUNTANTS AND LEGAL EXPERTS FROM YEAR TO YEAR. HE STATES THERE WHERE SUFFICIENT CAUSE FOR THE DELA Y HAS NOT BEEN SATISFIED, THEN THE DELAY IS NOT BE CONDONED. REFERRING TO T HE AFFIDAVIT OF THE ADVOCATE FILED BY THE ASSESSEE, IT WAS POINTED OUT BY THE LD. D.R. FO R THE REVENUE THAT THE SAID LAWYER WAS FOR THE MATTERS R ELATING TO BOMBAY PUBLIC TRUST ACT AND THERE WAS NO RELEVANCE OF H ANDING OVER PAPERS RELATING TO INCOME TAX. 10. THE LD. AR FOR THE ASSESSEE IN REJOINDER REFERS TO THE AFFIDAV IT FILED BY THE ASSESSEE WHEREIN IT WAS POINTED OUT THAT HE HAD NO SERVICE OF LEGAL CONSULTANT. HE FURTHER STATED THAT SIMPLY BECAUSE C HARTERED ITA NO.942/PUN/2010 NANDKISHOR EDUCATION SOCIETY 8 ACCOUNTANT WAS DOING AUDIT WORK BUT HE WAS NOT AWARE OF APPELLATE PROCEEDING AND HENCE THE DELAY. THE APPEAL OF THE ASSES SEE WAS HEARD ON THE MERIT OF CONDONATION OF DELAY AND NOT ON THE MERIT OF THE CASE. 11. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED TH E RECORD. THE PRELIMINARY ISSUE WHAT ARISES IN THE PRESENT APPEAL IS AGA INST THE CONDONATION OF DELAY OF 253 DAYS IN FILING THE APPEAL LATE B EFORE THE TRIBUNAL. THE ORDER U/S 12AA(3) OF THE ACT WAS PASSED O N 31 ST AUGUST, 2009 AND DUE DATE FOR FILING APPEAL WAS 12 TH OCTOBER, 2009. HOWEVER, THE APPEAL WAS FILED BY THE ASSESSEE ON 25.06.2010 I.E AFTER DELAY OF 253 DAYS. ONCE AN APPEAL IS FILED LATE BY THE ASSESSEE, THE ONUS IS UPON THE ASSESSEE TO EXPLAIN REASON FOR THE SAID DELAY AND IN CASE THE ASSESSEE ESTABLISHES REASONABLE CAUSE FOR FILING APPEAL LATE BEFORE THE TRIBUNAL, THEN THE DELAY MAY BE CONDONED AND THE APPEAL BE HEARD ON MERIT. THE SAID ONUS IS UPON THE ASSESSEE TO ESTABLISH ITS CASE. 12. THE HONBLE SUPREME COURT IN COLLECTOR, LAND ACQUISITIO N V/S. MST. KATIJI & ORS (SUPRA) HAS HELD AS UNDER: 3. THE LEGISLATURE HAS CONFERRED THE POWER TO CONDO NE DELAY BY ENACTING S.5 OF THE LIMITATION ACT OF 1963 IN ORDER TO ENABLE THE COURTS TO DO SUBSTANTIAL JUSTICE TO PARTIES BY DISPOSING OF MATT ERS ON MERITS. THE EXPRESSION SUFFICIENT CAUSE EMPLOYED BY THE LEGIS LATURE IS ADEQUATELY ELASTIC TO ENABLE THE COURTS TO APPLY THE LAW IN A MEANINGFUL MANNER WHICH SUBSERVES THE ENDS OF JUSTICE- THAT BEING THE LIFE- PURPOSE OF THE EXISTENCE OF THE INSTITUTION OF COURTS. 13. THE HONBLE SUPREME COURT IN THE SAID CASE WAS DECIDING ISSUE O F DELAY OF 4 DAYS BY THE STATE , IN FILING APPEAL LATE AND IT WAS OBSERVED THAT THE LIBERAL APPROACH SHOULD BE ADOPTED WHILE CONDONIN G THE DELAY. ITA NO.942/PUN/2010 NANDKISHOR EDUCATION SOCIETY 9 HOWEVER, THE DOCTRINE MUST BE APPLIED IN A RATIONAL COMMON SENSE AND PRAGMATIC MANNER. 14. IN ANOTHER DECISION, THE HONBLE SUPREME COURT IN VE DABAI ALIAS VAIJAYANATABAI BABURAO PATIL V/S. SHANTARAM BABURAO PA TIL (SUPRA) , WHILE CONDONING THE DELAY OF SEVEN DAYS ON GROUND OF ILLNESS , IT WAS HELD THAT A DISTINCTION MUST BE MADE WHERE DELAY IS INORDINATE AND A CASE WHERE THE DELAY IS OF FEW DAYS AND WHERE THE ASSESSEES A PPEAL OF CONDONATION OF DELAY ONLY SEVEN DAYS ON GENUINE GROUND OF ILLNESS, THE SAME SHOULD BE CONDONED. THE HONBLE SUPREME COURT FURT HER HELD AS UNDER : IN EXERCISING DISCRETION UNDER SECTION 5 OF THE LIMI TATION ACT, THE COURTS SHOULD ADOPT PRAGMATIC APPROACH. A DISTINCTION MUST BE MADE BETWEEN A CASE WHERE THE DELAY IS INORDINATE AND A CASE WHERE THE DELAY IS OF FEW DAYS. WHEREAS IN THE FORMER CASE THE CONSIDERATION OF PREJUDICE TO THE OTHER SIDE WILL BE RELEVANT FACTOR SO THE CASE CALL S FOR A MORE CAUTIONS APPROACH BUT IN THE LATTER CASE NO SUCH CONSIDERATI ON MAY ARISE AND SUCH A CASE DESERVES A LIBERAL APPROACH. NO HARD AN D FAST RULE CAN BE LAID DOWN IN THIS REGARD. THE COURT HAS TO EXERCISE THE DISCRETION ON THE FACTS OF EACH CASE KEEPING IN MIND THAT IN CONSTRUI NG THE EXPRESSION SUFFICIENT CAUSE, THE PRINCIPLE OF ADVANCING SUBS TANTIAL JUSTICE IS OF PRIME IMPORTANCE. 15. IN ANOTHER DECISION, HONBLE SUPREME COURT IN STATE OF HARYANA V/S. CHANDRA MANI (SUPRA), HAD ALSO CONDONED THE DELAY O F 109 DAYS IN FILING APPEAL BY THE STATE ON THE GROUND THAT STATE IS IMPERSONAL MACHINERY WORKING THROUGH ITS OFFICERS OR SERVANTS. 16. HOWEVER, THE HONBLE SUPREME COURT IN THE CASE OF I MPROVEMENT TRUST, LUDHIANA V/S. UJAGAR SINGH & ORS (SUPRA) HAD CONS IDERED THE CASE OF DELAY OF 90 DAYS AND HAD HELD THAT IN CASE OF WHE RE THE DELAY WAS NOT HUGE, THE SAME COULD HAVE BEEN CONDONED WITHOU T PUTTING THE RESPONDENT TO HARM OR PREJUDICES. ITA NO.942/PUN/2010 NANDKISHOR EDUCATION SOCIETY 10 17. IN THE FACTS OF THE PRESENT CASE BEFORE US, THE FIRS T ASPECT WHICH IS TO BE KEPT IN MIND, THE HUGE DELAY IN FILING THE PRESENT A PPEAL LATE OF 253 DAYS. THE ASSESSEE TRUST IS CONSTITUTED OF PERSONS FROM MEDICAL PROFESSION, WHICH IS WORKING FROM THE DISTRICT OF DHULE. THE AS SESSEE IS GETTING ITS ACCOUNTS AUDITED FROM YEAR TO YEAR AND HENC E HAS SERVICES OF PROFESSIONAL TO GUIDE IT IN THE INCOME TAX MATTERS. THE ASS ESSEE HAS FILED ON RECORD THE AUDIT REPORT AND AUDIT STATEMENTS FRO M FINANCIAL YEAR 1996-1997 ONWARDS AT PAGE NO. 98 TO 139 OF THE P APER BOOK. A PERUSAL OF THE SAID DOCUMENTS REFLECTS THAT THE CHARTERE D ACCOUNTANT HAS SIGNED AUDITED BALANCE SHEET AND ALSO PREPARED AUDIT REPORT FOR EACH OF THE YEARS. FURTHER, SCHEDULE-IX UNDER THE BOMBA Y PUBLIC TRUST ACT HAS ALSO BEEN FILED WHICH IS DULY SIGNED BY THE CHARTE RED ACCOUNTANT AND THE SAME IS ANNEXED TO THE AUDITED AC COUNTS AND REPORT OF THE AUDITOR HAS BEEN FILED FROM YEAR TO YEAR. IN SUCH CIRCUMSTANCES, IT CANNOT BE SAID THAT THE ASSESSEE DOES NOT HAVE THE SERVICE OF ANY PROFESSIONAL TO GUIDE IT WHO KNOW THE PROCE DURE OF FILING APPEAL BEFORE THE TRIBUNAL. 18. NOW COMING TO THE FACTUAL ASPECT OF THE CONDONATION APPLICATION MADE BY THE ASSESSEE, THE ASSESSEE HAS FILED VARIOUS AFFID AVITS. THE FIRST CONTENTION OF THE ASSESSEE IS THAT IT IS NOT AWARE OF TH E PROCEDURE RELATING TO FILING OF APPEAL AS WELL AS PROVISIONS LAID DOWN IN I NCOME TAX ACT. THE COURTS HAVE TIME AND AGAIN HELD IGNORANCE OF LAW CAN NOT BE EXCUSED. NOW LET US LOOK AT THE CONTENTION OF THE ASSES SEE ESTABLISHING THE SUFFICIENT CAUSE EXPLAINING DELAY IN FILING APPEAL LATE. IN TH E FIRST AFFIDAVIT DATED 9 TH JULY, 2012, THE ASSESSEE TRUST STATES THAT IT BECAME ITA NO.942/PUN/2010 NANDKISHOR EDUCATION SOCIETY 11 AWARE OF THE FORMALITIES TO BE CARRIED OUT AFTER CONSULTING THE TAX CONSULTANTS AND CONSEQUENTLY THE APPEAL WAS FILED LATE. IN THE SECOND AFFIDAVIT WHICH IS NOTARIZED ON 07.05.2016, THE ASSESSEE PLEAD S REASON OF IGNORANCE OF THE PROVISIONS RELATING TO FILING OF APPEAL AND FURTHER SOLEMNLY STATES THAT IT HAD NO GUIDANCE OF THE TAX CONS ULTANT. IT HAS ALSO SOLEMNISED THAT ACCOUNTS WERE AUDITED BY THE CHART ERED ACCOUNTANT BUT HE DOES NOT MUCH DEAL WITH THE CASES RELATING REGISTRATION U/S 12A ETC. IN THE THIRD AFFIDAVIT WHICH IS NOT ARIZED ON 23.12.2016, THE ASSESSEE CHANGES ITS STAND AND STATES T HAT IT HAD FORWARDED THE PAPERS TO RAMESH C. SHINDE WHO WAS ADVO CATE LOOKING AFTER THE CIVIL MATTERS OF THE ASSESSEE AND MATTERS BEFOR E THE CHARITY COMMISSIONER THAT ARISES UNDER THE BOMBAY PUBLIC TRUST A CT AND SOCIETIES REGISTRATION ACT. THE ASSESSEE HAS CHANGED ITS STAND OF AVAILABILITY OF THE CONSULTANT FROM ONE AFFIDAVIT TO THE LAST ON E. IN THE FIRST AFFIDAVIT, THE ASSESSEE STATES THAT INITIALLY, IT WAS NOT AWARE OF THE PROCEEDING BUT AFTER CONSULTING TAX CONSULTANT, IT BECAME AWARE OF THE FORMALITIES. IN THE SECOND AFFIDAVIT IT IS STATED ON OATH THAT IT HAD NO BENEFIT OF GUIDANCE OF TAX CONSULTANT, DESPITE THE FACT THA T IT HAD AVAILABLE CHARTERED ACCOUNTANT. IN THE THIRD AFFIDAVIT, THE ASSESSEE COMPLETELY TURNS THE THEORY OF SUFFICIENT CAUSE BY ALLEGING THAT PAPERS WERE HANDED OVER TO ADVOCATE WHO WAS ENGAGED IN THE MATTERS OTHER THAN INCOME TAX. IN THE TOTALITY OF FACTS AND CIRCUMSTA NCES, WE HOLD THAT THE ASSESSEE FAILS TO ESTABLISH ITS CASE OF SUFFICIENT CA USE IN FILING THE APPEAL LATE BEFORE TRIBUNAL AND ACCORDINGLY, WE DISMISS THE CONDONATION APPLICATION FILED BY THE ASSESSEE. CONSEQUENTLY , THE APPEAL OF THE ASSESSEE IS DISMISSED IN LIMANIE. WE DO NOT ADDRESS THE MERITS OF THE ISSUE RAISED IN THE PRESENT APPEAL. ITA NO.942/PUN/2010 NANDKISHOR EDUCATION SOCIETY 12 19. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED ON THIS 21 ST DAY OF MARCH, 2017. SD/- SD/- (ANIL CHATURVEDI) (SUSHMA CHOW LA) # / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE; DATED : 21 ST MARCH, 2017. SB '() *+,+ COPY OF THE ORDER IS FORWARDED TO : 1. / THE APPELLANT; 2. / THE RESPONDENT; 3. ! ! ' / THE CIT-I, NASHIK. 4. #$% &&'( ) ! '( ) * / DR A, ITAT, PUNE; 5. %+, - GUARD FILE. // TRUE COPY// ' / BY ORDER, # & // TRUE COPY // . / ASSISTANT REGISTRAR, ! '( , / ITAT, PUNE