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Income Tax Appellate Tribunal, ‘B’ BENCH, KOLKATA
Before: Shri Rajpal Yadav, Vice-(KZ) & Dr. Manish Borad
Per Rajpal Yadav, Vice-President (KZ):- The present two appeals are directed at the instance of assessee against the orders of ld. Commissioner of Income Tax (Exemption), Kolkata dated 26.09.2022 and 26.12.2022.
ITA Nos. 93 & 94/KOL/2023 Assessment Year: 2022-2023 Anti Hunger Squad Foundation 2. By these orders, ld. CIT(Exemption) has denied grant of registration under section 12AA and 80G respectively. The Registry has pointed out that ITA No. 93/KOL/2023 is time- barred by 73 days. In order to explain the delay, the assessee has filed an explanation along with the affidavit of its trustee Shri Zeeshan Majid. The application reads as under:-
“6th February 2023 From Anti Hunger Quad Foundation 6 Maulana Shawk T, Maulana Shawkat Ali Street, Kolkata - 700073 To The Hon’ble Members, Income Tax Appellate Tribunal, Kolkata Dear Sir, Re : Anti Hunger Squad Foundation PAN : AAHTA9499G Assessment Year 2022-23 Petition for Condonation of Delay in filing Assessee’s Appeal against order u/s 12A dated 22.06.2022 This is to bring to your notice that the appellant trust has preferred an appeal before the Hon’ble Bench of Income-tax Appellate Tribunal, Kolkata against the impugned order passed by the Ld. Commissioner of Income Tax (Exemptions), Kolkata dated 26.09.2022 u/s 12AB(l)(b)(ii)(B) of the Act. As per the provision of Section 253(3), appeal before the Hon’ble Income Tax Appellate Tribunal against the order u/s 250(6), has to be filed within sixty days from the date on which the order sought to be appealed against is communicated. Further, as per the provision of Sec. 253(5), the Hon’ble Appellate Tribunal may admit an appeal after the expiry of the relevant period referred to in sub-section (3) or sub-section (4), if it is satisfied that there was sufficient cause for not presenting it within that period. Admittedly, there is a delay of 73 days in filing of appeal against the order passed u/s 12AB(l)(b)(ii)(B) of the Act. In this connection, it is submitted that the Mr. Zeeshan Majid, who is the trustee of the appellant trust had not been keeping well and was therefore under complete bed rest. Consequent thereto, inadvertently he was unable to 2
ITA Nos. 93 & 94/KOL/2023 Assessment Year: 2022-2023 Anti Hunger Squad Foundation attend the proceedings conducted u/s 12A of the Act and was also unaware about the impugned order passed by the Ld. CIT(E) rejecting the application made u/s 12A(l)(ac)(iii) of the Act. It was only when he recovered in the month of December and followed up with the office of the Ld. CIT(E) that he was informed that both the applications filed u/s 12A & u/s 80G of the Act had been rejected on 26.09.2022 & 26.12.2022 respectively. The trustee was under the bonafide impression that he was required to re-file the application for approval subsequent to the orders of rejection and therefore did not take any steps for filing of appeal. It was only in the month of January 2023 that upon obtaining advice of a tax counsel on the way forward that he became aware that the impugned order was appealable. Accordingly, the relevant papers & order were collated by him and provided to a tax consultant. The entire process of collating the relevant papers and handing it over to the tax counsel became a time consuming process. The tax consultant prepared an appeal, which was forwarded to the trustee for finalization and signatures. Hence, the present appeal has been preferred before your Honours. For the aforesaid reasons, there was a bonafide delay on the part of the appellant trust to prefer the appeal within the prescribed time limit. Delay in filing of application u/s 253(5) by the appellant trust is thus based on aforesaid bonafide cause. It is humbly submitted that your Honours have the power to condone the delay and the same needs to be exercised liberally. The matter relating to condonation of delay has to be judged broadly, and the provision limiting the time should be liberally interpreted so that the appropriate action to pursue remedy be allowed to me by the law and he should not be deprived of the same for mere technicalities. The word “Sufficient Cause” needs to be given liberal reconstruction so as to advance the substantial justice. Based on the aforesaid, it is humbly prayed that the delay in presenting the appeal be condoned and the appeal be admitted, in the interest of substantial justice. Thanking you, Yours faithfully, For, Anti Hunger Squad Foundation Sd/- (Authorized Signatory)” 3. With the assistance of ld. Representative, we have gone through the record carefully. According to Mr. Zeeshan Majid, who is the trustee of the assessee-Trust, an ex-parte order was decided by the ld. 1st Appellate Authority and he had not been keeping well and was therefore, under complete bed rest and inadvertently he was unable to attend the proceedings conducted u/s 12A of the Act and was also unaware about the impugned
ITA Nos. 93 & 94/KOL/2023 Assessment Year: 2022-2023 Anti Hunger Squad Foundation order passed by the ld. CIT(Exemption) rejecting the application made u/s. 12A(1)(ac)(iii) of the Act. Thereafter it was forwarded to the Tax Consultant, and ultimately, papers were handed over became a time consuming process. The Tax Consultant prepared an appeal, and forwarded to the trustee for finalization and signatures and due to cumulative setting off all these circumstances, the appeal become time-barred by 73 days. After looking into the explanation of the trustee, we are satisfied that it was prohibited by sufficient reasons for not presenting the appeal within time. 4. In the light of above, if we examine the facts of the present case, then it would reveal that the delay has occurred on account of a bonafide mistake. During the course of hearing, we also confronted the ld. Counsel for the assessee as to why an application for grant of registration in Form 10A be not filed afresh. The ld. Counsel submitted that in case, a fresh application is filed in Form 10AD, then the assessee will not be entitled for benefit of sections 11 & 12 (if registration is being granted under section 12A), because in this year gross receipts are roughly Rs.9,00,000/-), but there is no provision in the CPC for claiming expenditure for setting off these gross receipts. According to him, if the assessee forgets of challenging this order in A.Y. 2022-23, then litigation will ultimately lead upto the Tribunal. It only gives rise multiplicity of litigation. We have perused the impugned order, they are ex-parte. Therefore, considering the explanation of the assessee, we condone the delay in filing the appeal i.e. ITA No. 93/KOL/2023 and proceed to decide on merit. 4
ITA Nos. 93 & 94/KOL/2023 Assessment Year: 2022-2023 Anti Hunger Squad Foundation
Brief facts of the case are that the assessee has filed an application in Form 10B. In order to verify the activities of the assessee, the ld. CIT directed it to file necessary details and on account of communication gap, such details could not be submitted. The ld. Commissioner has rejected the application of the assessee and denied the registration under section 12A. The whole exercise has been completed between 1st of September, 2022 to 26th September, 2022, in other words, less than 26 days. There might be some reasons for not responding to the notices, namely lack of service of notice, lack of communication to the concerned person etc. 6. As far as ITA 94/KOL/2023 is concerned, the ld. Commissioner has passed a consequential order for denying the registration under section 80G. The ld. Commissioner was of the view that since 12A registration has not been granted, therefore, its charity status is doubtful and accordingly rejected the application. It is pertinent to note that if the applications of the assessee are not allowed, then donors will not get exemption in their returns of income in the absence of 80G registration. Considering the complete facts, we are of the view that in the interest of justice, we set aside both the orders and restore the proceedings before the ld. CIT(Exemption). The ld. CIT would examine afresh and after providing due opportunity of hearing re- adjudicate the cases. The Office of the ld. Commissioner would not only issue notice on mail but also inform on Mobile No.7278676040 to the assessee about the fixation of hearing.
ITA Nos. 93 & 94/KOL/2023 Assessment Year: 2022-2023 Anti Hunger Squad Foundation 7. In the result, both the appeals of the assessee are allowed for statistical purposes. Order pronounced in the open Court on 28thMarch, 2023. Sd/- Sd/- (Manish Borad) (Rajpal Yadav) Accountant Member Vice-President (KZ) Kolkata, the 28th day of March, 2023 Copies to :(1) Anti Hunger Squad Foundation, 6, Maulana Shawk T. Maulana, Shawkat Ali Street, Kolkata-700073 (2) Commissioner of Income Tax, Exemption, Kolkata, 10B, Middleton Road, Kolkata-700071 (3) Commissioner of Income Tax- , Kolkata; (4) The Departmental Representative (5) Guard File TRUE COPY By order Assistant Registrar, Income Tax Appellate Tribunal, Kolkata Benches, Kolkata Laha/Sr. P.S.