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Facts
The assessee filed an appeal against an ex-parte order by the Ld. Commissioner, claiming a delay of 179 days due to not receiving communication of the order. The assessee had filed an application for registration under Section 12A, which was found incomplete and not properly responded to despite notices.
Held
The Tribunal condoned the delay of 179 days, subject to a token cost, noting the ex-parte nature of the order and the genuine, bonafide, and unintentional reasons for the delay. The Tribunal decided to remand the case back to the Commissioner for a fresh decision.
Key Issues
Whether the delay in filing the appeal should be condoned and whether the case should be remanded to the Commissioner for a fresh decision after providing an opportunity to be heard.
Sections Cited
80G, 12A, 80G(vi)(5)
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Income Tax Appellate Tribunal, MUMBAI BENCH “B”, MUMBAI
Before: SHRI NARENDER KUMAR CHOUDHRY & SHRI OMKARESHWAR CHIDARA
Per : Narender Kumar Choudhry, Judicial Member:
This appeal has been preferred by the Assessee against the order dated 13.08.2024, impugned herein, passed by the Ld. Commissioner of Income Tax (Exemptions) (in short Ld. Commissioner) u/s 80G(vi)(5) of the Income Tax Act, 1961 (in short ‘the Act’).
At the outset, it is observed that there is a delay of 179 days in filing of instant appeal, on which the Assessee has claimed that the impugned order was passed on dated 12.08.2024 and the Assessee did not receive any communication of such order via post or SMS or email but in fact the said order was noticed by the Assessee only on 15.11.2024 and thereafter he immediately on dated 08.04.2025 filed the instant appeal but with a delay of 179 days. The delay has been occurred due to primarily consultation, gathering relevant documents which were entirely beyond the appellant’s control and without any fault or negligence on the part of the Assessee and therefore the delay of 179 days in filing of the instant appeal, may be condoned.
On the contrary, the Ld. D.R. refuted the claim of the Assessee.
Having considered the reasons stated by the Assessee for condonation of delay as unsatisfactory but genuine, bonafide and unintentional and the fact that the impugned order is an ex-parte, the delay of 179 days in filing the instant appeal is condoned, however, subject to a token cost of Rs.5000/- to be deposited in Bombay High Court Legal Service Authority, within 15 days from the date of order.
As the appeals under consideration relates to the non- granting of registration u/s 12A & 80G of the Act, thus for the sake of brevity, the same were heard together and are being disposed of by this composite order by taking into consideration which pertains to 12A registration, as a lead case.
The Assessee in the instant case has filed an application in form 10AB for registration u/s 12A of the Act which on verification was found incomplete and not accompanied with the relevant documents and therefore vide notice dated 02.07.2024 the Ld. Commissioner requested the Assessee to furnish the complete set of documents, however, the Assessee made no compliance and therefore another reminder was also issued on dated 01.08.2024 to the Assessee but that also remained to be complied with. In the aforesaid facts and circumstances and by considering the time constraint for deciding the application on or before 31.08.2024 and having left with no other option, the Ld. Commissioner ultimately rejected the application filed by the Assessee.
The Assessee, being aggrieved, preferred the instant appeal and claimed that the Ld. Commissioner by rejecting application filed by the Assessee, in hasty manner and without giving a reasonable opportunity of being heard and thus violated the principle of natural justice and disregarded the material facts available on record. However, in order to avoid controversy and for substantial justice, one opportunity may be given to the Assessee by remanding the case to the file of the Ld. Commissioner, may be by putting a reasonable condition and/or reasonable cost.
On the contrary, the Ld. D.R. refuted the claim of the Assessee and heavily relied on the order passed by the Ld. Commissioner.
We have given thoughtful considerations to the peculiar facts and circumstances and rival submissions of the parties. Though the Ld. Commissioner has issued two notices first on 02.07.2024 and second on 01.08.2024, however, it is a fact the Assessee had filed relevant application on 12.02.2024 whereas such notices were issued at the fag end. It is also a fact that in the absence of relevant submission/reply the Ld. Commissioner was unable to decide the application filed by the Assessee for registration u/s 12A of the Act in its right perspective and proper manner. Thus considering the aforesaid facts and circumstances and for just and proper decision of the case and substantial justice, we are inclined to remand the instant case to the file of the Ld. Commissioner for decision afresh, suffice to say while affording reasonable opportunity of being heard to the Assessee.
We clarify that in case of subsequent default the Assessee shall not be entitled for any leniency.
In the result, the appeal is allowed in the aforesaid terms.
Coming to ITA No.2440/M/2025. In view of our judgment in this appeal is also allowed in the same terms.
In the result, both the appeals under consideration are allowed for statistical purposes.
Order pronounced in the open court on 08.07.2025.