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Income Tax Appellate Tribunal, “B” BENCH KOLKATA
Before: SHRI RAJPAL YADAV & SHRI GIRISH AGRAWAL
O R D E R
PER GIRISH AGRAWAL, ACCOUNTANT MEMBER:
This appeal filed by the assessee is against the order of Ld. CIT(E), Kolkata vide Notice No. ITBA/EXM/F/EXM45/2022-23/1049413489(1) dated 04.02.2023.
Grounds raised by the assessee are reproduced as under:
“1. Because the Id. CIT (Exemption), Kolkata, erred in law as well as in facts in rejecting the appellants application filed u/s 12A(1)(ac)(iii) of the I.T. Act 1961 on the basis of his surmises and conjunctures and contrary to the facts and ·material on record.
2. Because the Id. CIT (Exemption), Kolkata, erred in law as well as in facts in rejecting the application of the appellant as made in Form 10B on 10th January 2023, on the maxim 'Vigilantibus Non-Dormentibus Jura Subveniunt' refers to the obligation on the part of the applicant assessee that “the law assists those who are vigilant and not those who sleepover their rights" is squarely applicable in this case. It is evident that the applicant has merely filed the application for the 2 R. K. Choudhury Medical Society sake of filing it and has not given reply to the questionnaire which was sent to it". His such conclusions are contrary to the facts and material on record and provision of law. .
3. Because the ld. CIT (Exemption), Kolkata, erred in law as well as in facts in not considering the adjournment petition filed on 28th January 2023 on the e-Portal, seeking time up to 15th February 2023, on the ground of material from multiple sources requires time, and as such the rejection of the application is in violation of principle of natural justice and bad in law.
4. Because the Id. CIT (Exemption), Kolkata, ought to have accepted the adjournment petition seeking time till 15th February 2023 and as such his rejection order passed on 4th February 2023 is in violation of principle of natural justice.
5. The appellant craves leave to add further ground of appeal or alter the grounds at the time of hearing.”
In the present case, Shri Arvind Agarwal, Advocate represented the assessee before us. Department was represented by Shri Abhijit Kundu, CIT, DR.
Brief facts of the case are that assessee is a society registered under the Registration of Societies West Bengal Act XXVI of 1961 under Registration No. S/31659 of 1980-81 in the erstwhile name of Govind Medical Institute. The name of the society was changed to R. K. Choudhury Medical Society. Assessee was granted provisional registration in Form 10AC and provisional certificate was issued u/s. 12A(1)(ac)(vi) vide provisional registration order dated 10.03.2022. Thereafter, assessee made an application for approval u/s. 12A(1)(ac)(iii) in Form No. 10AB on 28.09.2022 along with all the relevant documents as required under Rule 17A/11AA/2C of the Income Tax Rules, 1962, in the proceedings for granting of registration. Ld. CIT(E), Kolkata required the assessee to submit certain details and documents for which the date of hearing was fixed on 24.01.2023. Assessee moved an application for adjournment on the e-portal on 28.01.2023 requesting for time upto 15.02.2023 on the ground of gathering of material from multiple sources
3 R. K. Choudhury Medical Society to meet the compliance required by the Ld. CIT(E). The plea of the assessee is that Ld. CIT(E) without considering the adjournment petition, rejected the application made by the assessee for granting of approval u/s. 12A on the ground of non-prosecution. From the order of Ld. CIT(E) dated 04.02.2023, in the annexure, it is stated that in absence of reply or response from the assessee, Ld. CIT(E) held that the Trust is not eligible for approval u/s. 12A(1)(ac)(iii) of the Act and thus rejected the application for approval submitted by the assessee.
We, from the facts stated above and evidence placed on record by the ld. Counsel in respect of seeking adjournment, in the interest of justice and fair play, find it proper to provide another opportunity to the assessee by remitting the matter back to the file of Ld. CIT(E) to consider the application of the assessee and grant the approval in accordance with the provisions of law. Assessee is also directed to be diligent in meeting the compliance requirement and furnish all the relevant details and documents so as to satisfy the authority for the purpose of granting approval as claimed by the assessee.
In the result, appeal of the assessee is allowed for statistical purposes.
Order pronounced in the open Court on 24th May, 2023.