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Facts
The assessee filed an application in Form 10AB for approval under Section 80G, which was rejected by the CIT(E) for not meeting the eligibility criteria. The assessee filed an appeal against this order, but it was delayed by 65 days.
Held
The Tribunal condoned the delay in filing the appeal, noting that the assessee had sufficient cause. The assessee then sought to withdraw the appeal as a fresh application had been filed in view of a CBDT circular and was pending.
Key Issues
Whether the delay in filing the appeal should be condoned, and whether the withdrawal of the appeal is permissible.
Sections Cited
Section 80G
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, JAIPUR BENCHES,”A” JAIPUR
Before: SHRI RATHOD KAMLESH JAYANTBHAI, AM & SHRI NARINDER KUMAR, JM vk;dj vihy la-@ITA No. 674/JP/2024
LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AAGTS 8438 N vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Sh. Vikash Rajvanshi, CA jktLo dh vksj ls@ Revenue by : Sh. Anil Kumar Bhardwaj, CIT-DR (Th. V.C) lquokbZ dh rkjh[k@ Date of Hearing : 22/07/2024 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 22/07/2024 vkns'k@ ORDER PER: RATHOD KAMLESH JAYANTBHAI, AM
Because the assessee is feeling aggrieved by an order dated 06/01/2024 passed by ld. CIT(E), Jaipur rejecting the application of the assessee filed in Form 10AB seeking approval under clause (ii) of first proviso to sub-section (5) of section 80G, the present appeal has been filed by the assessee. days in filing the present appeal by the assessee. Apropos to the said delay, ld. AR of the assessee submitted at bar that son of signatory, was stuck in Ukrain war area, and as such present appeal came to be filed beyond the prescribed period of limitation. In addition, the AR also relied upon the averments made in the application filed on 10.5.2024, seeking condonation of delay;
“Sub: Request for condonation of delay of 66 days Hon'ble Sir, With reference to the above subject, we want to state that the assessee trust was unable to respond to the CIT order within the stipulated timeframe, during the period when the CIT order was sent, the family of the president of the assessee society encountered unexpected emergencies that demanded her immediate attention and involvement. So there is delay in filing appeal of 66 days. Further, requesting the condonation of delay, we are relying on the following decisions:-
1. 1. Your honour, it has been held by Income Tax Appellate Tribunal Mumbai in al similar case in the case of The Phoenix Mills Ltd V/s Asstt. Commissioner of Income-tax:ITA No. 6240/M/2007 In the above case, the delay of 1358 days was condoned of the assessee and matter set-aside to CIT(Appeals) and it was held that the delay can be condoned if there exists sufficient cause for the delay.
2. COLLECTOR LAND ACQUISITION V/s, MST, KATIJI AND OTHERS-(1987) 167 ITR 471(SC); In the above case it was held that the delay can be condoned if there exists sufficient cause for the delay and the reasons for the same is properly evidenced. The appeal should be disposed of on merit after affording reasonable opportunity of hearing to both the sides.
3. STATE OF UP V/s, BAHADUR SINGH & OTHERS(1983)142 ITR 745(SC):-
3 Suraj Narayan Pareek Kshiksha Samiti vs CIT(Exemption) It was judicially decided that where the explanation for the delay is convincing and reasonable, a writ petition cannot be dismissed merely on the ground that the same was filed after a long time. 4. ANIL SONI V/s. ITO (1992) 52 TAXMAN48,49 (J&K):
Laches is not absolute bar if the court is otherwise satisfied with the justness of the petitioner's claim that relief can be granted to the petitioner who approaches the court even somewhat belatedly.
The cases highlighted above clearly specifies that merely delay in filing cannot be the ground for rejection of an appeal is the reason that the legislature itself has conferred the power to condone delay by enacting section 5 of the Limitation Act of 1963 in order to enable the court to do the substantial justice to the parties by disposing of matter on "merits". The expression "sufficient cause" employed by the legislature is adequately elastic to enable the court to apply the law in a meaning manner which sub serves the ends of justice- that being the life purpose of the existence of the institution of courts.
5. Vedabai Alias Vaijavanatabai Baburao Patil v. Shantaram Baburao Patil and Others-2001 (132) E.L.T. 15 (S.C.) (2002) 253 ITR 799
In the above case Court had held that "In exercising discretion under Section 5 of the Limitation Act, 1963, to condone delay for sufficient cause in not preferring an appeal or other application within the period prescribed, courts should adopt a pragmatic approach. A distinction must be made between a case where the delay is inordinate and a case where the delay is of a few days. Whereas in the former consideration of prejudice to the other side will be a relevant factor and calls for a more cautious approach, in the latter case no such consideration may arise, and such a case deserves a liberal approach. No hard and fast rule can be laid down in this regard. The Court has to exercise its discretion on the facts of each case keeping in mind that in construing the expression "sufficient cause" the principles of advancing substantial justice is of prime importance. The expression "sufficient cause" should receive a liberal construction. There remains no ground for the denial of the acceptance of appeal of the assessee society. Therefore, your good self is requested to please condone the delay of 66 days. as your acceptance of appeal can render natural justice to the assessee. Hope you will consider our request and oblige.”
Per contra, ld. DR who happens to be the concerned ld. CIT(E), Jaipur, who has rejected the registration of the assessee which is in dispute was filed under wrong provision of the Act, and furthermore, present appeal has been filed after delay. However, as regards the reason for condonation of delay, he did not raise any specific objection.
We have considered rival contentions of the parties and perused the material available on record. The prayer by the assessee for condonation of delay of 65 days has merit, and we concur with the submission of the assessee. Thus, delay of 65 days in filing the appeal by the assessee is condoned in view of the decision of Hon’ble Supreme Court in the case of Collector, land Acquisition vs. Mst. Katiji and Others, 167 ITR 471 (SC), the reason being that the assessee was prevented by sufficient cause.
Accordingly, the appeal is admitted to be decided on its merits.
In present appeal, the assessee has taken following grounds:
“1. CIT(E) has wrongly rejected the application for registration of assessee society u/s 80G stating that The applicant is not eligible for approval under clause (ii) of first proviso to sub section (5) of section 80G of the Act, as not already registered under clause (i) or (iii) of first proviso to 80G(5) of the Act whereas Income Tax Portal was not allowing us to apply in clause (iii). Hence CIT(E) order should be made null and void and CIT(E) may be directed to grant for 80G registration and rejection/cancellation order of 80G must be quashed.
5 Suraj Narayan Pareek Kshiksha Samiti vs CIT(Exemption) 2. The appellant prays your honor to add amend or alter all or any of the grounds of the appeal on or before the date of hearing.”
Brief facts, as emerge from the record, are that the assessee filed an application on 29.09.2023 in Form 10AB seeking approval under clause (ii) of first proviso to sub-section (5) of section 80G.
While dealing with the application of the assessee, ld. CIT(E), Jaipur observed that applicant-assessee was not eligible for approval under clause (ii) of first proviso to sub-section (5) of section 80G of the Act since it was not already approved under clause (i) or (iii) of first proviso to sub- section (5) of section 80G. To seek clarification in this regard, the applicant was issued a letter/notice No. ITBA/EXM/F/EXM43/2023- 24/1058990072(1) dated 22.12.2023 calling upon it either to withdraw its application in Form 10AB or to justify its claim for approval under clause (ii) of first proviso to sub-section (5) of section 80G of the Act on or before 29.12.2023. However, the applicant didn't comply with the above show cause.
6.1. As the assessee failed to file details/information required by the notice referred above and even otherwise as discussed, the applicant was found not eligible for approval under clause (ii) of first proviso to sub- (i) or (iii) of first proviso to 80G(5) of the Act, the application in Form 10AB for grant of approval under clause (ii) of first proviso to sub-section (5) of section 80G was rejected, as being infructuous.
At the time of hearing of present appeal, ld. AR of the assessee submitted that recently the Board has considered the genuine hardship of the assessee, who could not file the application within 6 months of commencement of activities, and allowed such applicants to file fresh application in those cases on or before 30.06.2023, and that the assessee has taken the benefit of said circular in filing fresh application. Based on said contention, ld. AR of the assessee has submitted that since fresh application has already submitted by the assessee in online mode, same is pending before ld. CIT(E).
Per contra, ld. DR who happens to be the same authority / officer-in- charge dealing with said applications filed by assessees, based on that contention raised by the assessee relying on the CBDT Circular, has not objected the prayer of the assessee. He has submitted at Bar that the present appeal of the assessee may be allowed to be withdrawn and the the Board, be allowed to be dealt with in accordance with law, by the revenue.
Based on the above discussion, the prayer made by the ld. AR of the assessee for withdrawal of the appeal for which ld. DR has no objection, is allowed. Hence, we allow the appellant to withdraw the appeal.
In the result, the appeal of the assessee is dismissed as withdrawn.
Order pronounced in the open court on 22/07/2024.