MADHAVI RAKSHA SANKALP, MUMBAI V. DDIT (E) I(1), MUMBAI

MA 578/MUM/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 1024 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 19-03-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 19-12-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: NISHANT SAMAIYA
• Keywords: Charitable institution; Reasonable cause; Condonation of delay
• Section: 143(3)

Judgement Text

B IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE SHRI MAHAVIR SINGH, JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER MA NO. 578 /MUM/2018 ARISING OUT OF ITA NO. 2746/MUM/2014 ASSESSMENT YEAR 2010 - 11 M/S MADHVI RAKSHA SANKALP NIRMAL NIKETAN 2 ND FLOOR, DR. BHAJEKAR STREET, MUMBAI - 400004 PAN AAATM7188H V. THE DEPUTY DIRECTOR OF INCOME TAX (EXEMPTION) - 1(1) INCOME TAX OFFICE, LALBAUG, PIRAMAL CHAMBERS, PAREL, MUMBAI - 400 012 APPLICANT RESPONDENT APPELLANT BY SHRI RAJESH P SHAH RESPONDENT BY M R. NISHANT SAMAIYA, DATE OF HEARING : 15 - 03 - 2019 DATE OF PRONOUNCEMENT : 19 - 03 - 2019 ORDER PER RAMIT KOCHAR, ACCOUNTANT MEMBER THE ASSESSEE HAS FILED THIS MISCEL L ANEOUS APPLICATION (MA) IN MA NO. 578 /MUM/2018 ARISI NG OUT OF ASSESSEES APPEAL IN ITA NO. 2746/MUM/2014 SEEKING RECTIFICATION OF AN MISTAKE APPARENT FROM RECO RDS IN AN APPELLATE ORDER DATED 26.04.2017 PASSED BY INCOME - TAX APPELLATE TRIBUNAL , B BENCH, MUMBAI (HEREINAFTER CALLED THE TRIBUNAL) FOR ASSESSMENT YEAR 2010 - 11 . 2. WHEN THIS MA WAS CALLED FOR HEARING BEFORE THE BENCH , IT WAS POINTED OUT TO LEARNED COUNSEL FOR THE ASSESSEE THAT THIS MISCELLANEOUS APPLICATION WAS FILED LATE BEYOND THE TIME STIPULATED UNDER THE PROVISIONS OF SECTION 254(2) OF THE 1961 ACT AND HENCE THIS MISCELLANEOUS APPLICATION IS TIME BARRED. THE LEARNED COUNSEL FOR THE ASSESSEE HAS ALBEIT FILED AN AFFIDAVIT DATED 28.02.2019 EXECUTED BY TRUSTEE OF THE ASSESSEE PRAYING FOR CONDONATION OF DELAY BUT NO RE ASONABLE CAUSE IS ALSO MADE OUT IN THE AFORESAID AFFIDAVIT. THE CAUSE SHOWN BY THE ASSESSEE IN THE AFORESAID AFFIDAVIT AND IN THIS MA IS MA NO. 578/MUM/2018 ARISING OUT OF ITA NO. 2746/MUM/2014 2 THAT THE AO WH ILE GIVING APPEAL EFFECT TO THE ITAT ORDER DATED 26 - 04 - 2017 POINTED OUT FINDING OF FACT AS IS RECORDED BY TRIBUNAL IN ITS ORDER THAT THE ASSESSEE IS NOT A RELIGIOUS TRUST WHICH THE AO IS NOW INSISTING THAT HE WILL MENTION THE SAID FACT IN THE APPEAL EFFEC T ORDER. THIS IS NOT A REASONABLE CAUSE AS THERE IS NO MISTAKE APPARENT FROM RECORDS. IT IS A MATTER OF RECORD VIDE ASSESSMENT ORDER DATED 22.03.2013 PASSED BY THE AO U/S 143(3) (PAGE 5 AND 6) THAT THE ASSESSEE WAS HELD TO BE A CHARITABLE TRUST. THE AO AL SO GAVE FINDING OF FACT THAT THE ASSESSEE IS NOT A RELIGIOUS TRUST (PAGE 6 OF THE AO ASSESSMENT ORDER DATED 22.03.2013). IT IS FURTHER MATTER OF RECORD VIDE STATEMENT OF FACT FILED BY THE ASSESSEE BEFORE LEARNED CIT(A) THAT THE ASSESSEE CLAIMED ITSELF TO B E A PUBLIC CHARITABLE TRUST CARRYING OUT CHARITABLE ACTIVITIES BY ITS OWN ADMISSION. IT IS FURTHER MATTER OF RECORD VIDE GROUNDS OF APPEAL FILED BY THE ASSESSEE BEFORE LEARNED CIT(A) THAT THERE WAS NO CHALLENGE TO THE AFORESAID FINDING OF THE AO VIDE ITS A SSESSMENT ORDER THAT THE ASSESSEE IS NOT A RELIGIOUS TRUST , BEFORE LEARNED CIT(A) . IT IS FURTHER MATTER OF RECORD VIDE GROUNDS OF APPEAL FILED BEFORE THE TRIBUNAL BY THE ASSESSEE THAT NO SUCH CHALLENGE TO THE FINDING OF FACT RECORD BY THE AO IN ITS ASSESSM ENT ORDER DATED 22.03.2013 PASSED U/S 143(3) THAT THE ASSESSEE WAS NOT A RELIGIOUS TRUST , WAS MADE BEFORE THE TRIBUNAL. THE TRIBUNAL AFTER HEARING BOTH THE PARTIES HAVE GIVEN FINDING OF FACT AT PAGE 11 THAT THE ASSESSEE IS NOT A RELIGIOUS TRUST WHICH FIN DING IS ALSO BASED ON THE ACTIVITIES OF TRUST WHICH ARE CHARITABLE IN NATURE WHICH IS ITSELF STATED BY THE ASSESSEE IN ITS REPLY DATED 26.02.2013 BEFORE THE AO VIDE PARA 2.2 , WHICH IS REPRODUCED BY THE AO ON PAGE 3 OF THE AO ASSESSMENT ORDER DATED 22.03. 2013, WHICH CLEARLY SHOWS THAT ACTIVITIES ARE CHARITABLE IN NATURE. THE ASSESSEE IS TERMING THIS FINDING OF FACT RECORDED BY ALL THE AUTHORITIES AS MERELY AS A PASSING REMARKS WHICH IS NOT CORRECT THUS, THIS MA HAS NO LEGS TO STAND BEING FILED NOT ONLY BEY OND TIME STIPULATED U/S 254(2) OF THE 1961 ACT BUT ALSO THAT THE ASSESSEE IS SEEKING REVIEW OF THE WELL REASONED ORDER DATED 26.04.2017 PASSED BY TRIBUNAL IN ITA NO. 2746/MUM/2014 BY ASKING VIDE THIS MA TO GIVE INCORRECT FINDING THAT THE ASSESSEE IS A RELIGIOUS TRUST WHICH WILL BE CONTRARY TO MATERIAL AND EVIDENCE ON RECORD. THUS, THIS MA STOOD DISMISSED. MA NO. 578/MUM/2018 ARISING OUT OF ITA NO. 2746/MUM/2014 3 3 . THUS, THIS M.A. NO. 578 /MUM/201 8 ARISI NG OUT OF APPEAL IN ITA NO. 2746 /MUM /20 1 4 FOR AY 2010 - 11 FILED BY THE ASSESSEE IS DISMISSED AS INDICATED ABOVE. ORDER PRON O UNCED IN THE OPEN COURT ON 1 9 .03 .201 9 1 9 . 03 .2019 S D / - S D / - ( MAHAVIR SINGH ) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 1 9 . 03 .201 9 COPY TO NISHANT VERMA SR. PRIVATE SECRETARY 1 . THE APPELLANT 2 . THE RESPONDENT 3 . THE CIT(A) CONCERNED, MUMBAI 4 . THE CIT - CONCERNED, MUMBAI 5 . THE DR BENCH, 6 . MASTER FILE // TUE COPY// BY ORDER DY/ASSTT. REGISTRAR ITAT, MUMBAI