BANKA ATITHI BHAWAN TRUST,,GORAKHPUR vs. CIT (E), LUCKNOW

PER SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER:

This appeal, filed by assessee, being ITA No.13/Vns/2020, is directed against theorderpassed by learned Commissioner of Income-tax (Exemptions), Lucknow(hereinafter called “the CIT(E)) , dated 26.12.2019(DIN & Letter No. ITBA/COM/F/ 17/2019-20/1023109110(1) ) refusing to condone delay in filing of Form No. 10B, for assessment year 2016- 17 . We have heard both the parties in Open Courtproceedings through physical hearing mode.

ITA No.113/Vns/2020 Assessment Year: 2016-17 Banka AtithiBhawan Trust, Gorakhpur v. CIT(E), Lucknow 2. At the outset ld. Counsel for the assessee submitted that this appeal is not maintainable with Income-Tax Appellate Tribunal(ITAT), as there are no provisions in the Income-tax Act, 1961(hereinafter called “the Act”) , wherein the order passed by ld. CIT(E) refusing to condone delay in filing of Form No. 10B could have been challenged before tribunal, and it was submitted that this appeal is not maintainable before tribunal. The ld. Counsel for the assessee submitted that remedy lies either by filing Writ Petition with Hon’ble Jurisdictional High Court or filing petition with CBDT , against the order passed by ld. CIT(E) refusing to condone delay in filing late Form No. 10B beyond the time stipulated Section 139 read with Rule 17 of the Income-tax Rules, 1962. Thus, prayers were made by ld. Counsel for the assessee to dismiss this appeal as not maintainable. However, it was submitted by ld. Counsel for the assessee that the assessee filed this appeal before tribunal under a bonafide belief that an appeal against the order passed by ld. CIT(E) refusing to condone delay in filing Form No. 10B beyond the due date, lies with tribunal, and prayers were made that liberty may be granted to the assessee to take appropriate available remedy. It relied upon order dated 11.10.2022 passed by Mumbai-tribunal in the case of BhaveshGhanshyamAdvani v. CIT(International Taxation), Mumbai in ITA No.5808-5809/Mum/2017, and submitted that Mumbai-tribunal also dismissed the appeal filed by the assessee against the order passed u/s 119(2)(b) as not been maintainable. It was submitted that although this appeal is not maintainable before tribunal, but even if it would have been maintainable still this appeal otherwise was also filed belatedly with tribunal beyond the time prescribed u/s 253(3) of the 1961 Act. The order of ld. CIT(E) is dated 26.12.2019, which was received by assessee on 26.12.2019 itself. The 2

ITA No.113/Vns/2020 Assessment Year: 2016-17 Banka AtithiBhawan Trust, Gorakhpur v. CIT(E), Lucknow appeal if at all maintainable with the tribunal ought to have been filed on or before 24th February, 2020, but the appeal was actually filed with tribunal on 19.06.2020. The assessee has also placed on record application seeking condonation of delay explaining the cause of delay . It is claimed in the said application that Secretary of the assessee namely ShriNavratna Banka was not well from 10.02.2020 to 28.02.2020 and medical certificate from Dr. Rajeshwar Kant Chandra Mishra , MBBS, MD(Med.) M.I.A.C.M. B R D Medical College , Gorakhpur dated 28.02.2020 is also placed in original certifying illness of the Secretary of the assessee from 10.02.2020 to 28.02.2020. It is further explained that when the application was getting ready for filing of appeal with tribunal, lock down due to Covid-19 pandemic took place. The reliance is also placed on the judgment and order of Hon’ble Supreme Court in the case of Collector, Land Acquisition v. Mst. Katiji&Ors. , reported in 1987 AIR 1353(SC) ; 1987 SCR(2) 387 .It was claimed that there was Covid-19 pandemic in the Country and Hon’ble Supreme Court in Cognizance for Extension of Limitation extended the limitation period from time to time , from 15th March, 2020 to 28.02.2022. It was also fairly submitted that even if it is assumed that the appeal was maintainable before tribunal, the time limitation as prescribed u/s 253(3) expired before the limitation period was extended by Hon’ble Supreme Court .It was prayed that liberal view may be taken in the interest of justice. The ld. CIT-DR submitted that this appeal is not maintainable with tribunal and should be dismissed.After considering the contentions of both the parties and perusing the material on record, we dismiss the appeal filed by the assessee as not maintainable. While dismissing the appeal, we have extracted the manner in which the appeal was filed with tribunal along with other factual background. The assessee has also claimed 3

ITA No.113/Vns/2020 Assessment Year: 2016-17 Banka AtithiBhawan Trust, Gorakhpur v. CIT(E), Lucknow that it was under a genuine and bonafide belief that appeal against order passed by ld. CIT(E) refusing to condone the delay in filing form no. 10B beyond due date is an order passed with reference to Section 12A which is an order challengeable before tribunal. There is some merit in the plea of the assessee that it was persuing legal remedy before tribunalunder bonafide belief. So far as condonation of delay in filing appeal with tribunal belatedly is concerned, since the appeal itself is not maintainable before tribunal , we donotpropose to consider the condonation of delay where the appeal itself is not maintainable before tribunal. The Court/authority where the assessee, if so advised , chose to persue further legal remedy , can certainly take cognizance of the above factual matrix, in arriving at their own independent decision w.r.t. condonation of delay, if so sought by the assessee.Thus, in nut- shell appeal of the assessee stand dismissed as not maintainable. We order accordingly. 3. In the result, the appeal of the assesseein ITA No. 113/Vns/2020 for ay: 2016-17stands dismissed as not maintainable. Order pronouncedon 13/01/2023at Varanasi, U.P. in accordance with Rule 34(4) of the Income Tax (Appellate Tribunal) Rules, 1963 .

Sd/. Sd/. [VIJAY PAL RAO] [RAMIT KOCHAR] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED:13/01/2023 Copy forwarded to:

ITA No.113/Vns/2020 Assessment Year: 2016-17 Banka AtithiBhawan Trust, Gorakhpur v. CIT(E), Lucknow 1. Appellant –Banka AtithiBhawan Trust, C/o Banka AtithiBhawan ,Maya Bazar, Gorakhpur-273001, U.P. 2. Respondent –The CIT(E),05th Floor, TC-46, VibhutiKhand, Gomti Nagar, Lucknow-226010, U.P. 3. The CIT, Gorakhpur, U.P. 4. The CIT-DR, ITAT, Varanasi, U.P. 5. The Guard File

By order Assistant Registrar

Date Initials Original dictation pad is enclosed at the end of file 1. Draft dictated on: 12.01.2023 Sr. PS/PS 2. Draft placed before author: 12.01.2023 Sr. PS/PS 3. Draft proposed & placed .01.2023 JM/AM before the second member: 4. Draft discussed/approved by JM/AM Second Member: 5. Approved Draft comes to the .01.2023 Sr. PS/PS Sr. PS/PS: 6. Order pronounced on: .01.2023 Sr. PS/PS 7. File sent to the Bench Clerk: .01.2023

ITA No.113/Vns/2020 Assessment Year: 2016-17 Banka AtithiBhawan Trust, Gorakhpur v. CIT(E), Lucknow 8. Date on which file goes to Sr. PS/PS the Head Clerk: 9. Date on which file goes to AR 10. Date of dispatch of Order: