The Society of Mother of Sorrows Servant of Mary Maria Natchathira Province, Tuticorin V. CIT, Madurai

MA 131/CHNY/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6868 (ITAT-CHENNAI)
• Duration Of Justice: 1 month(s) 12 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-08-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 19-08-2011
• Assessment Year: misc
• Appeal Filed On: 18-07-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T N BETGIRI
• Assessee Lawyers: N DEVANATHAN
• Keywords: Charitable institution; Principle of natural justice; Retrospective amendment; Reasonable cause; Condonation of delay
• Section: 12AA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, CHENNAI B E F O R E DR. O.K.NARAYANAN, VICE PRESIDENT AND SHRI HARI OM MARATHA, JUDICIAL MEMBER .. M.A. NO.131(MDS)/2011 IN (ITA NO.375(MDS)/2011) & ITA NO.375(MDS)/2011 THE SOCIETY OF MOTHER OF SORROWS SERVANTS OF MARY, MARIA NATCHATHIRA PROVINCE, SERVITE PROVINCIALATE, 106,J/23,MILLERPURAM, TOOTHUKUDI 628 008. PAN AADTS6895A VS. THE COMMISSIONER OF INCOME-TAX, MADURAI/THE ITO, WARD I(1), MADURAI. (APPLICANT/APPELLANT) (RESPONDENT) APPLICANT BY : SHRI N.DEVANATHAN, ADVOCATE RESPONDENT BY: SHRI T.N.BETGIRI, JCIT DATE OF HEARING : 19 TH AUGUST, 2011 DATE OF PRONOUNCEMENT : 30TH AUGUST , 2011 O R D E R PER DR.O.K.NARAYANAN, VICE-PRESIDENT: THE ASSESSEE PETITIONER IN THIS CASE HAD FILED AN APPEAL BEFORE THE TRIBUNAL IN ITA NO.375(MDS)/2011. THE R ELIEF PRAYED - - MP 131 & ITA 375 OF 2011 2 FOR BY THE ASSESSEE IN THE APPEAL FILED BEFORE THE TRIBUNAL WAS FOR GRANTING REGISTRATION UNDER SECTION 12AA WITH R ETROSPECTIVE EFFECT FROM THE ASSESSMENT YEAR 1999-2000. THE SAI D APPEAL WAS DISMISSED BY THE TRIBUNAL THROUGH ITS ORDER DAT ED 20 TH APRIL,2011. IT IS IN THE ABOVE CONTEXT THAT THE ASS ESSEE IS PLACING THIS RECTIFICATION PETITION BEFORE THE TRIBUNAL. 2. IN ORDER TO BRING OUT THE ENTIRE GAMUT OF THE F ACTS OF THE CASE, IT IS NECESSARY FOR US TO REPRODUCE THE M ISCELLANEOUS PETITION IN TOTO, EVEN THOUGH IT IS AT THE COST OF ITS LENGTH. THE PETITIONER MOST RESPECTFULLY SUBMITS AS FOLLO WS 1. THE APPLICANT IS A CHARITABLE INSTITUTION RECOGN IZED U/S.12AA OF THE IT ACT 2. THE APPLICANT IS CARRYING ON YEOMEN SERVICES TO THE SOCIETY AT LARGE BY A. RUNNING SEVEN RECOGNIZED ORPHANAGES IN WHICH MO RE THAN 1200 GIRLS AND BOYS (BOTH ORPHANED AND SEMI ORPHANED) AR E BEING SHELTERED, TAKEN CARE OF AND ARE GIVEN FOOD AND CLOTHING AND EDUCATION FREE OF COST. B. FREE HEALTH CARE FOR TO THE POOR PEOPLE MAINLY FOCUSED IN VILLAGES, COASTAL AREAS AND SLUMS AND ARE RUNNING DISPENSAR IES FREE OF COST - - MP 131 & ITA 375 OF 2011 3 C. FREE HEALTH TO CARE TO NEEDY AGED AND POOR AND PROVIDE THEM MEDICAL TREATMENT D. RUNNING REMEDIAL SCHOOLS FOR POOR YOUNG GIRLS W HO ARE DROP OUTS BY GIVING FREE EDUCATION AND VOCATIONAL TRAINING E. RUNNING 12 EDUCATIONAL INSTITUTIONS WHERE MORE THAN FIVE THOUSAND STUDENTS ARE STUDYING AND GIVING FREE E DUCATION TO THE POOR. THE ACTIVITIES ARE CARRIED OUT BY 'NUNS' WITHOUT AN Y 'QUID PRO QUO' WITH DEDICATION, LOVE, AFFECTION WITH THE SPIRIT OF SERVICE TO HUMANITY PARTICULARLY TO THE MARGINALIZED AND DEPRIVED MEMBE RS OF THE SOCIETY AT LARGE WITHOUT EXPECTING ANYTHING IN RETURN LIKE TREES BEARING FRUITS FOR OTHER GIVING SHADES FOR OTHERS MILK GIVEN BY COWS FOR OTHERS VIZ 'PAROPAKARATHAM IDHAM SARIRAM' WHICH MEANS THA T THIS BODY (HUMAN BEING IS MEANT FOR OTHERS (TO HELP OTHER)' 3.THE LEARNED CIT, BASED ON GENUINE ACTIVITIES BEI NG CARRIED ON BY THE INSTITUTION WAS PLEASED TO ACCORD REGISTRATION U/S. 12AA OF THE IT ACT WITH EFFECT FROM 01.04.2005 RELEVANT TO THE ASST.YEAR:20 06/07. 4.THE APPLICANT ORIGINALLY FILED THE FIRST APPLICAT ION FOR REGISTRATION U/S.12AA ON 21.02.2002 BEFORE THE CIT-I, MADURAI AN D FOLLOWED BY ANOTHER APPLICATION ON 10.12.2003 AND IT APPEARS NO ORDERS WERE PASSED ON THESE APPLICATIONS BY THE CIT-I, MADURAI. 5.THE APPLICANT FILED THIRD APPLICATION ON 29.01.20 04. THE LEARNED CIT-I, MADURAI WHILE REJECTING THE APPLICATION PASSED THE ORDER IN CNO DATED 30.07.2004 AND OBSERVED AS FOLLOWS - - MP 131 & ITA 375 OF 2011 4 IN RESPONSE TO THIS OFFICE LETTER DATED 24.02.2004 WHEREIN THE ASSESSEE HAS BEEN ASKED TO RECTIFY CERTAIN DEFICIENCIES/DEFECTS IN THE DOCUMENTS SUBMITTED TO THIS OFFICE, THE ASSESSEE FILED REPLY ON 29.07.2004 ENCLOSING COPY OF PROPOSED AMENDMENT TO THE BYE-LAWS WHICH W AS NOT DULY REGISTERED. IN THE ABOVE CIRCUMSTANCES THE ASSESSEE'S APPLICATI ON FOR REGISTRATION U/S.12AA OF THE IT ACT STANDS REJECTED. HOWEVER, T HE ASSESSEE IS AT LIBERTY FOR REGISTRATION AFTER ENCLOSING THE DULY REGISTER ED AMENDED BYE-LAWS. 6.THE SOCIETY RESUBMITTED FORM NO.IOA FOR REGISTRAT ION U/S.12AA OF THE ACT ON 27.02.2006. IN THE APPLICATION IT WAS STATED THAT THEY HAVE ALREADY FILED AN APPLICATION IN THIS REGARD ON 29.01.2004 B UT THE SAME COULD NOT BE ACTED UPON SINCE THE AMENDMENT TO THE BYE-LAWS WAS RECEIVED LATE ON 03.08.2004 FROM THE REGISTRAR OFFICE, THOOTHUKUDI A ND THE SAME WAS REJECTED BY THE CIT-I, MADURAI SINCE SIX MONTHS TI ME HAS LAPSED ON 29.07.2004. THE SOCIETY WAS ASKED TO PRODUCE CERTA IN DOCUMENTS, REASONS FOR DELAY ETC., BY THIS OFFICE LETTER DATED 05.04.2 006. ASSESSING OFFICER'S REPORT WAS ALSO OBTAINED. THE APPLICANT TAKING LIBE RTY GIVEN BY THE CIT, RECTIFYING THE CAUSED OUT THE AMENDMENTS SUGGESTED BY THE DEPARTMENT AND FILED AN APPLICATION. 7.AFTER CONSIDERING THE DOCUMENTS, THE CIT-I , MADURAI IN HIS ORDER IN C.NO:464/288/0S-06/CLT-I DATED 28.08.2006 GRA NTED REGISTRATION U/S.12AA OF THE ACT WITH EFFECT FROM 01.04.2005. WHILE GRANTING REGISTRATION THE DELAY WAS NOT CONDONED BY THE CIT BY WRITING I N THE ORDER SHEET AS 'REGISTRATION GRANTED WITHOUT CONDONATION'. IN THE ORDER ALSO IT WAS STATED AS UNDER - - MP 131 & ITA 375 OF 2011 5 'AS SUFFICIENT REASONS HAVE NOT BEEN GIVEN FOR T HE DELAY IN FILLING THE APPLICATION' 8.AGGRIEVED BY THE ORDER OF THE CIT-I, MADURAI, TH E APPLICANT FILED APPEAL BEFORE THE HON'BLE ITAT, CHENNAI. THE HON'BLE IT A T, CHENNAI C BENCH IN ITS ORDER IN IT A TO.343/MDS/09 DATED 15.04.2010 RESTO RED THE ISSUE TO FILE THE CIT WITH A DIRECTION TO DECIDE THE SAME AS PER LAW AFT ER HEARING THE APPLICANT. 9.HOWEVER, THE LEARNED CIT REFUSED REGISTRATION WI TH EFFECT FROM THE DATE OF INCEPTION OF THE SOCIETY (18.02.1999) VIZ FOR THE ASST.YEAR:1999/2000 TO 2005/06 FOR THE REASONS THAT THERE WERE LAPSES ON THE PART OF THE SOCIETY AND THE ORIGINAL APPLICATION WAS FILED ONLY ON 29.01.2004 AND HENCE REGISTRATION CANNOT BE GRANTED, AND ALSO ON ACCOUNT OF DELAY. 10.THE APPLICANT BEING AGGRIEVED FILED AN APPEAL B EFORE THE IT AT AND RAISED THE FOLLOWING GROUNDS A. THE ORDER OF THE CIT-I, MADURAI IN C.NO:464/288 /2005-06 IN REJECTING THE APPLICATION FILED FOR REGISTRATION U/S.12AA OF THE ACT FROM THE INCEPTION DATED 29.01.2004 IS CONTRARY TO LAW, FAC TS AND IN THE CIRCUMSTANCES OF THE CASE. B.THE LEARNED CIT ERRED IN REJECTING THE APPLICATI ON FILED FOR REGISTRATION IN TERMS OF SECTION 12AA OF THE FROM THE DATE OF I NCEPTED DATED 29.01.2004 IS PARTLY ACCEPTING SUCH APPLICATION WITHOUT ASSIG NING PROPER REASONS AND JUSTIFICATION. C.THE LEARNED CIT FAILED TO APPRECIATE THAT THE CO NDITIONS PRESCRIBED FOR THE ELIGIBILITY TO GET THE REGISTRATION AS CONTEMPLATE D U/S.12AA OF THE IT ACT FROM THE DATE OF INCEPTION DATED 29.01.2004 WERE FULFIL LED ON THE FACTS AND CIRCUMSTANCES OF THE CASE D.THE LEARNED CIT FAILED TO APPRECIATE THAT THE DE LAY IN PRESENTING THE - - MP 131 & ITA 375 OF 2011 6 APPLICATION FOR REGISTRATION U/S.12AA OF THE ACT F ROM THE DATE OF INCEPTION DATED 29.01.2004 WAS BEYOND THE CONTROL OF THE APP LICANT AND THE REASONS STATED WERE JUSTIFIABLE ON THE FACTS AND IN THE CI RCUMSTANCES OF THE CASE, DESERVING CONDONATION OF SUCH DELAY AND FURTHER EL IGIBLE FOR GETTING SUCH REGISTRATION FROM THE DATE OF THE INCEPTION OF THE APPELLANT. E.THE CIT FAILED TO APPRECIATE THAT THE FINDING RE CORDED IN THIS REGARD IN PARAGRAPH 4 OF THE IMPUGNED ORDER WERE WRONG, INCO RRECT UNJUSTIFIED, ERRONEOUS AND NOT SUSTAINABLE BOTH ON FACTS AND LA W F.THE CIT FAILED TO APPRECIATE THAT THE DETAILED N OTE FILED EXPLAINING THE CIRCUMSTANCES FOR THE BELATED FILING OF THE APPLIC ATION FOR REGISTRATION WOULD DEMONSTRATE THE COMPLEXITIES INVOLVED AND HENCE TH E REJECTION OF THE EXPLANATION WAS ERRONEOUS AND INVALID. G.THE CIT FAILED TO APPRECIATE THAT THE ORDER OF T HE APPELLATE TRIBUNAL WAS NOT APPRECIATED IN PROPER PERSPECTIVE AND NON CONS IDERATION OF THE DECISION HARMONIOUSLY WOULD VITIATE THE IMPUGNED O RDER. H.THE CIT FAILED TO APPRECIATE THAT THE DECISION R EPORTED M 118 ITR 326 RENDERED BY THE APEX COURT, EVEN THOUGH NOTICED IN THE IMPUGNED ORDER, THE PRINCIPLES LAID DOWN THEREIN WERE NOT TAKEN INTO CO NSIDERATION IN REJECTION OF THE PRAYER FOR CONDONATION OF DELAY IN PRESENTING T HE APPLICATION FOR REGISTRATION WHILE JUSTIFYING THE PRAYER FOR GRANT OF SUCH REGISTRATION RETROSPECTIVELY. I.THE CIT FAILED TO APPRECIATE THAT THE CONTINUOUS CHANGE IN MANAGEMENT, CHANGE OF AUDITOR AND LACK OF PROPER ADVICE WOULD CONSTITUTE REASONABLE CAUSE FOR THE BELATED FILING OF THE APPLICATION OF REGISTRATION WHILE JUSTIFYING THE PRAYER FOR GRANT OF SUCH REGISTRATI ON RETROSPECTIVELY. J. THE CIT FAILED TO APPRECIATE THAT THERE WAS NO PROPER OPPORTUNITY GIVEN - - MP 131 & ITA 375 OF 2011 7 BEFORE PASSING THE IMPUGNED ORDER AND ANY ORDER PAS SED IN VIOLATION OF THE PRINCIPLES OF NATURAL JUSTICE IS NULLITY IN LAW K.THE CIT FAILED TO APPRECIATE THAT THE ORDER UNDE R CONSIDERATION IN REJECTING THE REGISTRATION U/S.12AA OF THE ACT WAS PASSED OU T OF TIME, INVALID, PASSED WITHOUT JURISDICTION AND NOT SUSTAINABLE BOTH ON F ACTS AND LAW L.THE APPELLANT CRAVES LEAVE TO FILE ADDITIONAL GR OUNDS 11.THE IT AT BY ITS IMPUGNED ORDER HELD AND OBSERV ED AS UNDER PARA 5: 'WE HAVE HEARD BOTH SIDES. A SMALL PORTION OF CIT IN PARAGRAPH 4 OF HIS ORDER MAY BE REPRODUCED BELOW THE SOCIETY IS A HABITUAL OFFENDER. THE FIRST APPL ICATION FOR REGISTRATION WAS FILED AFTER A DELAY OF NEARLY FOUR YEARS. AFTER RE JECTION OF SOME, THE SECOND APPLICATION WAS FILED AFTER A LAPSE OF ANOTHER TWO YEARS. EVEN ITS APPEAL BEFORE THE HON'BLE IT AT WAS AFTER A DELAY OF 871 DAYS. W HEN THE APPEAL WAS RESTORED BI1CK TO THE FILE OF THE CIT FOR DECISION THE SOCI ETY DELAYED ITS APPEARANCE FOR SIX MONTHS. THIS INDICATES THE SOCIETY IS NOT SERI OUS ABOUT COMPLIANCE WITH RULES AND REGULATIONS'. PARA 6: 'THE ABOVE POIGNANT OBSERVATION OF CIT CLEARLY LAS HES OUT AGAINST THE PLEADING ADVANCED BY THE ASSESSEE SOCIETY. THE CONTENTION T HAT THE SOCIETY IS RUN BY A GROUP RELIGIOUS SISTERS WHO BY THEMSELVES WERE NOT GENUINELY AWARE OF THE PROVISIONS OF INCOMETAX ACT IS NOT A GOOD REASON T O EXPLAIN THE DELAY THAT OCCURRED EVEN AFTER REMITTING THE FILE BY THE TRIB UNAL TO THE CIT. IN THESE CIRCUMSTANCES, WE ARE UNABLE COMPEL THE CIT TO GRA NT REGISTRATION FROM THE DATE OF INCEPTION OF THE SOCIETY. THE ORDER OF THE CIT IS TO BE UPHELD. - - MP 131 & ITA 375 OF 2011 8 12.IT IS HUMBLY SUBMITTED THAT THE ORDER OF THE IT AT GIVES RAISE TO RECTIFICATION AND NOT ONE OF REVIEW IN TERMS OF S ECTION 254(2) OF THE ACT FOR THE FOLLOWING REASONS SUPPORTED BY LEGAL PRINCIPL ES, TO WIT:- A.THE PRIMARY CONSIDERATION OF SECTION 254(2) SHOUL D BE THE JUSTICE OF THE CASE. BY ALLOWING SUCH APPLICATION THE TRIBUNAL BRI NGS ABOUT A RESULT WHICH WOULD BE IN ACCORDANCE WITH THE SUBSTANTIVE PROVISI ONS OF THE ACT SUCH AN EXERCISE WILL HAVE TO BE REGARDED AS ONE WHICH IS P ERMISSIBLE EXERCISE OF POWER TO RECTIFY U/S.254(2) OF THE ACT (238 ITR 505 ). THE SUBSTANTIVE PROVISION GRANTS RELIEF IN RESPECT OF INCOME APPLIE D FOR CHARITABLE PURPOSES WHICH FACT IS NOT IN DISPUTE ON THE FACTS OF THE CA SE. B.IT IS APT TO QUOTE FEW SENTENCE FROM THE ARTICLE 'THE PRINCIPLES OF CONSTITUTIONAL INTERPRETATION - SOME REFLECTIONS BY HIS LORDSHIP JUSTICE DHARMADHIKARI (2004(4) SCC JOURNAL 1 ) 'WHEN YOU ARE IN DOUBT, THINK THE MOST WEAK AND DEP RIVED MEMBERS OF THE SOCIETY AND CONSIDER WHETHER THE LINE OF ACTION YOU PROPOSE TO IS GOING TO BENEFIT HIM IN ANY MANNER AND TO WHAT EXTENT' 13.THE FOLLOWING ARE MISTAKES APPARENT FROM THE REC ORD WHICH REQUIRED RECTIFICATION A.OMISSION TO CONSIDER GROUNDS SUBMITTED BEFORE THE ITAT GROUND NO.11 BEFORE THE ITAT THE CIT FAILED TO APPRECIATE THAT THE ORDER UNDER C ONSIDERATION IN REJECTING THE REGISTRATION U/S.12AA OF THE ACT WAS PASSED OU T OF TIME, INVALID PASSED WITHOUT JURISDICTION AND NOT SUSTAINABLE BO TH ON FACTS AND LAW REPLY THE TRIBUNAL ORIGINALLY PASSED THE ORDER IN ITA NO. 343/MDS/2010 DATED - - MP 131 & ITA 375 OF 2011 9 15.05.2010 AND RECEIVED BY THE DEPARTMENT ON 04.06. 2010 AND THE PRESENT ORDER WAS PASSED ON 24.01.2011 AND AS SUCH THE LEA RNED CIT HAD PASSED THE ORDER BEYOND SIX MONTHS AND HENCE THE ORDER IS PASSED BEYOND TIME LIMIT AND HENCE VOID, NOT SUSTAINABLE IN LAW PARA 5 PAGE 4 OF THE ITAT ORDER EXTRACT OF THE CIT'S OBSERVATION B. 'THE FIRST APPLICATION FOR REGISTRATION WAS FILED AFTER A DELAY OF NEARLY 4 YEARS. AFTER THE REJECTION OF SAME THE SECOND APP LICATION WAS FILED AFTER LAPSE OF ANOTHER TWO YEARS' REPLY THE CIT WAS FACTUALLY WRONG: IN FACT THE FIRST APPL ICATION FOR REGISTRATION U/S.12AA OF THE IT ACT WAS FILED BY THE APPLICANT O N 21.02.2002 AND ANOTHER APPLICATION ON 10.12.2003 AND IT APPEARS NO ORDERS HAVE BEEN PASSED. THE APPLICANT FILED ANOTHER APPLICATION 29.01.200 4 AND THE LEARNED CIT IN C.NO.464/223/2003-04/CIT(1) DATED 30.07.2004 REJECT ED REGISTRATION SOLELY ON THE GROUND THAT THE AMENDMENT MADE TO BYE LAWS W ERE NOT REGISTERED. HOWEVER, THE LEARNED CIT WAS PLEASED TO GIVE LIBERT Y FOR THE APPLICANT FOR REGISTRATION AFTER ENCLOSING THE DULY REGISTERED AM ENDED BYE LAWS. IT IS RESPECTFULLY SUBMITTED IN THE CASE OF SOCIETY REGIS TERED UNDER THE SOCIETIES ACT THERE IS NO QUESTION OF REGISTRATION OF THE AME NDMENTS. ONLY THE COPY OF THE RESOLUTION IS FILED WITH THE REGISTRAR. THE FIN DING BASED ON MISCONCEPTION OF LAW HAS ONLY CAUSED PREJUDICE TO T HE INSTITUTION. PARA 5 PAGE 4 OF THE ITAT ORDER C.'EVEN THE APPEAL BEFORE THE IT AT WAS AFTER A D ELAY OF 871DAYS' - - MP 131 & ITA 375 OF 2011 10 REPLY THE DELAY HAS BEEN EXPLAINED BY DULY SWORN AFFIDAVI T EXPLAINING DELAY ATTRIBUTED TO DUE TO THE MISTAKE OF THE REPRESENTATIVE. THE DEPARTMENT H AD NOT CHALLENGED THE SAID ORDER BEFORE THE HON'BLE HIGH COURT. THIS FINDING HAS NO RELEVANCE TO THE ISSUE SINCE THE MATTER HAS BEEN RESTORED TO THE LEARNED CIT FOR FRE SH CONSIDERATION PARA 5 PAGE 4 OF ITAT ORDER D.'WHEN THE APPEAL WAS RESTORED BACK TO THE FILE O F THE CIT FOR DECISION, THE SOCIETY DELAYED THE APPEARANCE FOR SIX MONTHS'. REPLY THE SOCIETY NEVER DELAYED THE APPEARANCE. THE SOCIE TY HAS BEEN REPRESENTED BY A CHARTERED ACCOUNTANT. THE AUDITOR DULY REQUESTED FO R TIME AND THE LEARNED CIT WAS PLEASED TO GRANT TIME AFTER CONSIDERING THE APPLICA TION. EVEN ASSUMING WITHOUT ADMITTING FOR THE SAKE OF ARGUMENT THAT THERE IS FAULT ON THE REPRESENTATIVE THE SOCIETY CANNOT BE PUNISHED (SEE THE DECISION OF THE SUPREME COURT IN THE CASE OF RAFIQ AND ANOTHER 1981 SC 788 WHERE THE COURT OBSERVED AS UNDER:- 'WHAT IS THE FAULT OF THE PARTY WHO HAVE DONE EVERY THING IN HIS POWER EXPECTED OF HIM WOULD SUFFER BECAUSE OF THE DEFAULT OF HIS ADVOCATE . IF WE REJECT HIS APPEAL... THE ONLY ONE WHO WOULD SUFFER NOT BE THE LAWYER WHO DID NOT APPE AR BUT THE PARTY WHOSE INTEREST HE REPRESENTED. THE PROBLEM THAT AGITATES US IS WHETHE R IT IS PROPER THAT THE PARTY SHOULD SUFFER FOR THE INACTION, DELIBERATE OMISSION OR MIS DEMEANOR OF HIS AGENT. THE ANSWER OBVIOUSLY IS IN THE NEGATIVE WE CANNOT BE A PARTY TO AN INNOCENT PARTY SUFFERING INJUSTICE MERELY BECAUSE HIS CHOSEN ADVOCATES DEFAU LTED. THEREFORE, WE ALLOW THIS APPEAL AND SET ASIDE THE ORDER OF THE HIGH COURT BOTH DISM ISSING THE APPEAL AND REFUSING TO RECALL THE ORDER. - - MP 131 & ITA 375 OF 2011 11 PARA 5 PAGE 4 OF ITAT E.'THIS INDICATES THE SOCIETY IS NOT SERIOUS ABOUT COMPLIANCE AND REGULATION' REPLY THE VERY FACT THAT THE SOCIETY IS URGING FOR THE RE GISTRATION U/S.12AA FROM THE YEAR 2002 ONWARDS SHOWS THAT IT WAS AND IS VERY MUCH INTEREST ED IN OBTAINING REGISTRATION U/S.12AA OF THE IT ACT. THE JOURNEY OF THE APPELLANT IN THIS DIRECTION IS BESET WITH INSURMOUNTABLE HURDLES LIKE THE DEATH OF THEIR AUDITOR, CHANGE OF OFFICE BEARERS OF THE SOCIETY AND LAPSE ON THE PART OF NEW AUDITOR, DELAY IN GIVING REGISTR ATION FOR AMENDMENTS BY THE OFFICE OF THE REGISTRAR OF SOCIETY ETC., THE OBSERVATION OF THE LEARNED CIT IS OPPOSED TO CO MMONSENSE AS POINTED OUT THE SUPREME COURT POINTED KATAJIS'S CASE 167 ITR 471 TH AT 'THERE IS NO PRESUMPTION THAT DELAY IS OCCASIONED D ELIBERATELY OR ON ACCOUNT OF CULPABLE NEGLIGENCE OR ON ACCOUNT OF MALA FIDES, A LITIGANT DOES NOT STAND TO BENEFIT BY RESORTING TO DELAY. IT IS GRASPED THAT JUDICIARY IS RESPECTED NO T ON ACCOUNT OF ITS POWER TO LEGALISE INJUSTICE ON TECHNICAL GROUND BUT BECAUSE IT IS CAP ABLE OF REMOVING INJUSTICE AND IS EXPECTED TO DO SO. LENGTH OF DELAY DOES NOT MATTER AND OXYGENATE HUMAN JUSTICE ON HUMAN LAWS. THE CBDT IN ITS ADMINISTRATIVE INSTRUCTIONS ADVISED THE COMMISSIONERS TO CONDONE THE DELAY FREELY. THE FINANCE MINISTRY NOT STATED THAT GOVERNMENT IS ANXIOUS TO DISCHARGE ITS MORAL OBLIGATIONS (130 ITR 445). THE SUPREME COURT OBSERVED THAT THE FANATICAL INSISTENCE ON THE LEGAL' POUND OF FLESH' BASED ON L IMITATION AND FINALITY WAS NOT TO BE EXPECTED FROM A PARTY LIKE STATE. 100 ITR 698 SC. 14.IN THE LIGHT OF THE FOCUS ON THE SMALL PORTION O F THE ORDER, THE IT AT ALSO FAILED TO CONSIDER THE OTHER GROUNDS CHALLENGING THE FINDINGS OF THE LEARNED CIT ENUMERATED IN GROUNDS 3 TO 10 RAISED BEFORE THE ITAT CITED SUPRA AND THE LEARNED CIT FUNDAMENTALLY ASSUMED JURISDICTIONAL FACT WRONGLY REGARDING DELAY WITHOUT CAUSING ANY ENQUIRY AND - - MP 131 & ITA 375 OF 2011 12 HENCE IN THE ABSENCE OF ENQUIRY NO FINDING CAN BE G IVEN BY WAY OF MERE REJECTION OF EXPLANATIONS OFFERED BY THE APPLICANT'. IT IS WELL SETTLED THAT THE QUASI JURIDICAL AUTHORITY CANNOT ASSUMED JURISDICTIONAL FACTS (RAZA TEXTILES 87 ITR 539 SC) AND AS SUCH ALL SUCH OBSERVATIONS BY THE CIT-I ARE PERVERSE AND OMISSION TO CONSIDER THE GROUNDS IN PROPER PERSPECTIVE GIVES RAISE TO ORDER AMENDABLE FOR REC TIFICATION U/S.254(2) OF THE ACT AND AS SUCH HUMBLY PRAYS THAT THE IMPUGNED ORDER TO RE CALLED AND DIRECT THE LEARNED CIT TO GRANT REGISTRATION FROM INCEPTION OF THE APPLICANT SOCIETY THAT IS TO SAY WITH EFFECT FROM 18.02.1999 THEREBY GIVING FILLIP TO THE CHARITABLE ACTIVITIES LIKE MAINTAINING ORPHANS AND EDUCATION TO THE POOR AND OTHER PUBLIC WELFARE MEASURES BEING CARRIED ON BY THE SOCIETY AND THUS RENDER JUSTICE. 3. WE HEARD SHRI N.DEVANATHAN, THE LEARNED COUNSEL APPEARING FOR THE ASSESSEE AND SHRI T.N.BETGIRI, THE LEARNED JOINT COMMISSIONER OF INCOME-TAX APPEARING FOR THE REVENUE. 4. ON GOING THROUGH THE PETITION FILED BY THE ASSE SSEE, WHICH SPEAKS OUT THE FACTS IN AN OUTSTANDING MANNER, WE A GREE WITH THE LEARNED COUNSEL FOR THE ASSESSEE THAT THE PETITION IS NOT F OR REVIEW BUT ONLY FOR RECTIFICATION. ON GOING THROUGH THE ENTIRE FACTS A ND CIRCUMSTANCE OF THE CASE, WE FIND THAT, AS RIGHTLY POINTED OUT BY THE L EARNED COUNSEL FOR THE ASSESSEE, THE TRIBUNAL HAS OVER-LOOKED THE FACT THA T THE COMMISSIONER OF INCOME-TAX HAS PASSED THE ORDER REFUSING REGISTRATI ON UNDER SECTION 12AA OUT OF TIME, WHICH INVARIABLY DEPRIVES THE NECESSAR Y JURISDICTION. - - MP 131 & ITA 375 OF 2011 13 5. THE OBSERVATION THAT THE FIRST APPLICATION FOR REGISTRATION WAS FILED AFTER A DELAY OF NEARLY FOUR YEARS AND THERE WAS A DELAY OF TWO YEARS IN FILING THE SECOND APPLICATION, CONTAINS FACTUAL MISTAKES. THERE IS NOTHING ON RECORD TO SHOW THAT THE COMMISSIONER OF INCOME-TAX HAS PASSED ORDERS ON THOSE APPLICATIONS FILED BY THE AS SESSEE. 6. WE ADMIT THE MISTAKE THAT IN THE LIGHT OF THE F OCUS PLACED ON THE SMALL PORTION OF THE ORDER OF THE TRIBUNAL, THE TRI BUNAL HAS FAILED TO CONSIDER THE OTHER GROUNDS RAISED BY THE ASSESSEE I N CHALLENGING THE FINDINGS OF THE COMMISSIONER OF INCOME-TAX. IT IS SEEN THAT THE COMMISSIONER OF INCOME-TAX HAS NOT MADE ANY PROPER ENQUIRY BEFORE REJECTING THE APPLICATION OF THE ASSESSEE. 7. IN THE LIGHT OF THE ABOVE CIRCUMSTANCES WE DO A DMIT OUR GUILT OF COMMITTING ERROR WITHOUT ANY HESITATION AND RECALL OUR ORDER DATED 20 TH APRIL, 2011. 8. FURTHER, IN THE LIGHT OF THE CIRCUMSTANCES EXPL AINED IN DETAIL IN THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE, W E ARE OF THE CONSIDERED VIEW THAT THE ASSESSEE IS ENTITLED FOR RETROSPECTIV E REGISTRATION. IT IS TO BE SEEN THAT THE ASSESSEE IS A CHARITABLE INSTITUTION RENDERING PROFOUND SERVICES TO THE SOCIETY BY RUNNING SEVEN RECOGNIZED ORPHANAGES IN WHICH MORE THAN 1200 GIRLS AND BOYS ARE GIVEN SHELTER WIT H FOOD AND EDUCATION - - MP 131 & ITA 375 OF 2011 14 FREE OF COST. THE ASSESSEE IS ALSO PROVIDING MEDIC AL CARE TO THE POOR PEOPLE AND THE SOCIETY IS MAINLY WORKING FOR THE RU RAL FOLK. THE NUNS, WHO ARE VOLUNTEERS OF THE SOCIETY, RENDER SERVICES FREE OF COST IN THE SPIRIT OF SERVICE TO HUMANITY. 9. IN THE CIRCUMSTANCES WE FIND THAT WHEN THE ASSE SSEE IS ENTITLED FOR REGISTRATION UNDER SECTION 12AA, THERE IS NO RE ASON TO HOLD THAT THE ASSESSEE IS NOT ENTITLED FOR THE REGISTRATION WITH RETROSPECTIVE EFFECT. AN ADVERSE FINDING HAS BEEN ARRIVED AT NOT ON THE BASI S OF ANY SUBSTANTIVE LAW BUT ON THE BASIS OF TECHNICALITIES. THEREFORE, IN THE FACTS AND CIRCUMSTANCES OF THE CASE, WE ALLOW THE APPEAL OF T HE ASSESSEE AND DIRECT THE COMMISSIONER OF INCOME-TAX TO GRANT REGISTRATIO N TO THE ASSESSEE RETROSPECTIVELY FROM THE ASSESSMENT YEAR 1999-20 00 ONWARDS. 10. IN RESULT THIS APPEAL FILED BY THE ASSESSEE IS ALLOWED AS WELL AS THE MISCELLANEOUS PETITION ALSO IS ALLOWED. ORDER PRONOUNCED ON TUESDAY, THE 30 TH OF AUGUST, 2011 AT CHENNAI. SD/- SD/- (HARI OM MARATHA) (DR. O.K.NARAYANAN) JUDICIAL MEMBER VICE-PRESIDENT CHENNAI, DATED THE 30 TH AUGUST, 2011. V.A.P. COPY TO: APPELLANT/RESPONDENT/CIT/CIT(A) DR/GF