SHREE SANTSHIROMANI SHREE NARAYANDASJI SEWA CHIKITSA SANSTHAN,SENDHWA vs. THE CIT-II, INDORE

आदेश /O R D E R

PER SHRI C.M. GARG, JM

This appeal has been filed by the assessee against the order of

the learned CIT-II, Indore, dated 7.8.2014 passed u/s 12AA(1)(b)(i)

of the Income Tax Act, 1961.

Shree Sant Shiromani ITA No. 103/Ind/2016

APPLICATION OF THE ASSESSEE FOR CONDONATION OF DELAY IN FILING THE APPEAL

material on record. The learned assessee’s representative (AR)

submitted that the delay occurred in filing the appeal is bonafide

and is totally because of non-receipt of the order dated 7.8.2014

denying registration u/s 12A of the Income Tax Act, 1961 (in short

‘the Act’). The learned counsel for the assessee further submitted

that the impugned order was not served upon the assessee despite

the fact that the appellant continuously filed letters in this regard

till 18.12.2015 and on the said date the appellant came to know

about the fact that the order has already been passed. The learned

AR further submitted that immediate getting known of such fact,

the appellant filed an application for obtaining certified copy of the

impugned order which was received on 30.12.2015 and the

assessee filed the appeal within the due time from the date of the

actual receipt of the order on 10.2.2016 within the stipulated

prescribed time period. The learned AR further drew our attention

towards copies of the submissions dated 16.10.2014 and

Shree Sant Shiromani ITA No. 103/Ind/2016 18.12.2015 and submitted that the assessee filed copy of

registration dated 4.10.2014 under the M.P. Trust Registration Act,

1951 and the appellant has been continuously requesting the

learned CIT to pass appropriate order in respect of the application

of the assessee for registration u/s 12A of the Act which shows

bonafides of the assessee that he was not informed about the fact

by way of service of copy of order or any other mode that the order

has already been passed denying registration on 7.8.2014. The

learned AR further submitted that in view of the facts and

circumstances stated in the affidavit dated 1.2.2016, which is

unrebutted, the delay may kindly be condoned and the appeal of

the assessee may kindly be admitted for hearing on merits.

per the information received from the Assessing Officer, the copy of

the order was served on the assessee on 10.10.2014 in proper

manner. However, the learned CIT DR fairly accepted that there is

no receipt or proof or service of notice on the assessee from which

the actual date of service of order may be gathered or ascertained.

The learned CIT DR submitted that when the delay is not due to

bonafide reasons beyond the control of the assessee then the delay 3

Shree Sant Shiromani ITA No. 103/Ind/2016 cannot be condoned. Thus, the application as well as the appeal of

the assessee may kindly be dismissed.

that the copy of the written submissions of the assessee dated

16.10.2014 submitted to the learned CIT-II makes it clear that the

assessee filed copy of registration order dated 4.10.2014 showing

that the assessee has got registration under the M.P. Trust

Registration Act, 1951 and in the last line of these submissions, the

assessee requested that if any more information is required, it shall

be furnished in the same manner from the written submissions

dated 18.12.2015 submitted to the CIT-II, Indore. It is also

discernable that the assessee again reminded the learned CIT-II,

Indore, to do the needful at the earliest with the prayer that if any

important information or document is required, it shall be

furnished. These two letters clearly establish bonafides of the

assessee that it was under the belief that the order has not been

passed and on 18.12.2015 when the assessee came to know about

passing of the order, it applied for certified copy of the impugned

order on 18.12.2015 and filed the present appeal on 10.2.2016.

These facts have also been stated in the affidavit of Shri 4

Shree Sant Shiromani ITA No. 103/Ind/2016 Gulabchand Goyal, trustee of the appellant trust, sworn in on

1.2.2016 and there is no rebuttal by the revenue to this affidavit.

Therefore, the facts stated therein cannot be discarded or dismissed

without any contrary material on record. In view of the above, we

are satisfied that the delay in filing the appeal was due to bonafide

reason which was beyond the control of the assessee. Therefore, the

delay in filing the appeal deserves to be condoned and we condone

the same. Consequently, the appeal of the assessee is admitted for

hearing on merits and the application for condonation of delay is

allowed.

ON MERITS

perused the relevant material placed on record. The learned counsel

for the assessee submitted that the CIT-II, Indore, dismissed the

application of the assessee for registration u/s 12A of the Act

without affording due opportunity of hearing on the basis of sole

ground that the trust has not been registered under M.P.

Registration Act, 1951. The learned AR further submitted that the

assessee filed the copy of registration dated 4.10.2014 under the

M.P. Trust Registration Act, 1951 which was not considered by the 5

Shree Sant Shiromani ITA No. 103/Ind/2016 learned CIT-II, Indore, and he passed the order in hasty manner

without pointing out any defect or allegation against the charitable

purposes and activities of the appellant.

learned CIT-II, Indore. However, he fairly submitted that there was

a communication gap between the appellant and the authority

adjudicating upon the grant of registration u/s 12A of the Act. The

learned CIT DR also submitted that the Department has no serious

objection if the case is restored to the file of the learned CIT-II,

Indore, for fresh adjudication.

the considered view that the appellant was not provided due

opportunity of hearing to place its case which resulted into

dismissal of application. We are satisfied that the appellant was not

provided due opportunity of hearing during the proceedings.

Therefore, the order has been passed violating the principles of

natural justice and thus the same is not sustainable in law. In view

of our above-noted factual position, we find it appropriate to set

aside the impugned order and restore the issue to the file of the

learned CIT-II, Indore, for fresh adjudication, after providing due 6

Shree Sant Shiromani ITA No. 103/Ind/2016 opportunity of hearing to the assessee and without being prejudiced

from the earlier order passed by him. We order accordingly.

statistical purposes with the direction to the learned CIT-II, Indore,

as indicated above.

Order pronounced in open Court on 15th March, 2017.

Sd/- sd/-

लेखा सद�य �या�यक सद�य (O.P.Meena) (C.M. Garg) Accountant Member Judicial Member

March 15th, 2017. Dn/

.