IMC OF ITI BHIWADI,ALWAR vs. CIT(E), JAIPUR, JAIPUR
Facts
The assessee, IMC of ITI Bhiwadi, filed an appeal against the order of the CIT(E) rejecting its application for registration under Section 12AB of the Income Tax Act. The assessee's application was rejected due to an incomplete Form 10AB, non-registration with the Rajasthan Public Trust Act, and non-genuineness of activities. The appeal was filed with a delay of 39 days, for which the assessee sought condonation.
Held
The Tribunal condoned the 39-day delay in filing the appeal, citing the assessee's preoccupation with examinations as a sufficient cause. The Tribunal observed that the order passed by the CIT(E) violated principles of natural justice as the assessee was not given adequate opportunity to be heard.
Key Issues
Whether the delay in filing the appeal is condonable and whether the assessee was denied adequate opportunity of hearing by the CIT(E).
Sections Cited
12A(1)(ac)(iii), 12AB, Income Tax Act
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, JAIPUR BENCHES,”A” JAIPUR
आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”A” JAIPUR Mk0 ,l- lhrky{eh] U;kf;d lnL; ,oa Jh jkBksM deys'k t;UrHkkbZ] ys[kk lnL; ds le{k BEFORE: DR. S. SEETHALAKSHMI, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM vk;dj vihy la-@ITA No. 328/JPR/2024 IMC of ITI Bhiwadi cuke CIT, Exemption, ITI Bhiwadi Near Phoolbag, Vs. Jaipur Alwar. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AAATI6614C vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@Assessee by : Sh. P.C. Parwal (C.A.) jktLo dh vksj ls@Revenue by : Sh. Arvind Kumar (CIT) lquokbZ dh rkjh[k@Date of Hearing : 09/05/2024 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 27/05/2024 vkns'k@ORDER
PER: RATHOD KAMLESH JAYANTBHAI, AM
This appeal is filed by the assessee aggrieved from the order of the Learned Commissioner of Income Tax (Exemption), Jaipur [ herein after referred as ld. “CIT(E)”] dated 12.12.2023 as per provision of under Section 12AB of the Income Tax Act [here in after the Act].
In this appeal, the assessee has raised following grounds: - “1. The Ld. CIT(E) has erred on facts and in law in rejecting the application filed by the assessee u/s 12A(1)(ac)(iii) in form No. 10AB
2 ITA No. 328/JPR/2024 IMC of ITI Bhiwadi vs. CIT(E) seeking registration u/s 12AB of IT Act, 1961 on the ground of (i) incomplete Form 10AB (ii) non registration with Rajasthan Public Trust Act, 1959 and (iii) none-genuineness of activities & non-compliance without providing adequate opportunity of hearing. 2. The appellant craves to alter, amend and modify any ground of appeal. 3. Necessary cost be awarded to the assessee.”
3.1 At the outset of hearing, the Bench observed that there is delay of 39 days in filing of the appeal by the assessee for which the ld. AR of the assessee filed an application for condonation of delay with following prayers and the assessee to this effect also filed an affidavit :-
“With reference to above it is to submit that the order of Ld. CIT(E) rejecting the application for grant of registration u/s 12AB was received by the assessee on 12.12.2023. The appeal was to be filed on or before 09.02.2023. However, for the reasons mentioned in the affidavit, the appeal could not be filed in time and there is a delay of 39 days. Since the above delay of 39 days is due to a reasonable cause, we request you to kindly condone the delay and admit the appeal for hearing.” To this effect, the assessee has filed an affidavit as to the condonation of delay in filing the appeal.
3.2 The ld. AR of the assessee appearing in this appeal submitted that the assessee is serious on the duties and the delay of 39 days is on account of busy in examination (NCVT) supplementary). Considering the various judicial precedents where
3 ITA No. 328/JPR/2024 IMC of ITI Bhiwadi vs. CIT(E) in the courts has considered the explanation prevented the assessee and thereby ignored the delay on account of the genuine reasons placed on record which is backed by an affidavit. Even the apex court in the case of Collector, Land & Acquisition Vs. Mst. Katiji& Others 167 ITR 471(SC) directed the other courts to consider the liber approach in deciding the petition for condonation as the assessee is not going to achieve any benefit for the delay in fact the assessee is at risk.
3.3. During the course of hearing, objected to the condonation petition of the assessee and submitted the contention raised is without any supportive evidence and there isnot merits in the reasons provided by the assessee.
3.4 We have heard both the parties and perused the materials available on record. The Bench Noted that the assessee for condonation of delay of 39 days has merit as was pre-occupied in the examination schedule and the same is supported by an affidavit. Thus, we are of the considered view that the assessee was prevented by sufficient cause. Thus, the delay of 39 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
4 ITA No. 328/JPR/2024 IMC of ITI Bhiwadi vs. CIT(E) Acquisition vs. Mst. Katiji and Others, 167 ITR 471 (SC) as the assessee is prevented by sufficient cause.
The facts as culled out from the records is that the assessee filed online application in Form No. 10AB seeking registration u/s 12AB of the Income Tax Act, 1961 was filed on 28.06.2023. A letter/notice No. ITBA/EXM/F/EXM43/2023-24/1057693210(1) dated 04.11.2023 was issued at the e- mail/address provided in the application requiring the assessee to submit certain documents/explanations by 15.11.2023, but no compliance has been made by the assessee. Thereafter, a reminder letter was issued vide this office DIN & Notice No. ITBA/EXM/F/EXM43/2023- 24/1057993401(1) dated 16.11.2023 wherein date of hearing was fixed as 22.11.2023, but again no compliance has been made the assessee. Further, again one more opportunity was also provided to the assesseevide this office DIN & Notice No. ITBA/EXM/F/EXM43/2023-24/1058243929(1) dated 27.11.2023 to submit complete details/information by 01.12.2023. This time also on given date, the assessee has not furnished any details/documents. Since it is a limitation matter, therefore, the case is decided on the basis of material filed by the assessee along with its application in Form no. 10AB by the ld.
5 ITA No. 328/JPR/2024 IMC of ITI Bhiwadi vs. CIT(E) CIT(E)rejecting the application for registration u/s. 12AB of the Act. The relevant part of the decision is reproduced here in below:
“ However, the applicant has failed to comply with the letters, despite being given three opportunities details of which given in para-1. In the absence of such documents like income and expenditure account, copies of bank account statement, photographs of activities, details of expenses, genuineness of activities could not be proved. Therefore, assessee claim of registration u/s 12AB is also liable to be rejected on ground of not proving its genuineness of activity and non- compliance to the letters issued by this office. 5. In view of above discussion assessee's claim of registration section 12AB is liable to be rejected and thus being rejected on following grounds: - Incomplete Form 10AB. Non registration with RPT Act, 1959. Non-Genuineness of Activities and non-compliance.”
Feeling dissatisfied from the finding of the ld. CIT(E),the assessee preferred appeal before this Bench with the prayer that theld.CIT(E) is not justified in not granting the registration and the order passed is against the principles of nature justice. To support the contention the ld. AR of the assessee filed the detailed written submission as reproduced here in below: “1. The assessee is an educational institution providing exclusive technical education without any profit motive. It is registered as per the scheme of the government and is run at the premises of Govt. ITI in which the management control is of government employees and some other experienced persons. It was granted provisional registration u/s 12A vide order dt.27.05.2021 from AY 2021-22 to 2023-24. Thereafter it filed application for grant of permanent registration u/s 12A(1)(ac)(iii) on 28.06.2023 (PB 7-13).
6 ITA No. 328/JPR/2024 IMC of ITI Bhiwadi vs. CIT(E) 2. The Ld. CIT (E) observed that assessee has not complied with notice dt.4.11.2023. 16.11.2023 & 27.11.2023. Further it is observed that application in Form No. 10AB filed by the assessee is not complete as it has not furnished copy of the trust deed, note on the activities and copy of the annual accounts in as much as it has attached the deed in the name of Gau Jeev Parmarth Sewa Sansthaan, it is not registered under Rajasthan Public Trust Act, 1959 and in the absence of income and expenditure a/c, copy of bank account statement, photograph of the activities and details of the expenses, genuineness of the activities could not be proved. 3. It is submitted assessee in response to notice d1.27.11.2023 has in its reply filed on 12.12.2023 (PB 2) has specifically stated that it has not received the questionnaire on mail rather it was physically received from the office of the CIT(E) on 06.12.2023 and therefore it was requested to adjourn the date to 16.12.2023 to furnish the reply. Thereafter when assessee tried to furnish the reply on 15.12.2023 it came to its notice that order was passed on 12.12.2023 and therefore the said reply was submitted through the mail. With this mail assessee filed the documents required by the CIT(E) (PB 3-6). Thus it can be noted that assessce was prevented by sufficient cause in not furnishing the reply as the order was passed on 12.12.2023 whereas assessee has sought the time upto 16.12.2023. Therefore in the interest of natural justice, the matter be sent back to CIT(E) to allow adequate opportunity of hearing to the assessee. “
During the course hearing, the ld. AR of the assessee submitted that the reasons advanced for rejection are curable and the assessee was not given sufficient opportunity of being heard before the ld. CIT(E) as stated in the written submission filed. He further submitted that if given an opportunity the observations made by the ld. CIT(E) being curable in nature the assessee has sufficient reason to get the registration / recognition.
Per contra, the ld. DR relied on the orders of the ld. CIT(E) and submitted that even though three opportunities were given to
7 ITA No. 328/JPR/2024 IMC of ITI Bhiwadi vs. CIT(E) the assessee but has not complied the notices and therefore, the contention of the assessee is not tenable and the appeal of the assessee is required to be dismissed.
We have heard the rival contentions and perused material available on record. The Bench noted from the submission of the assessee that assessee in response to notice d1.27.11.2023 has in its reply filed on 12.12.2023 (PB 2) has specifically stated that it has not received the questionnaire on mail rather it was physically received from the office of the CIT(E) on 06.12.2023 and therefore it was requested to adjourn the date to 16.12.2023 to furnish the reply. Thereafter when assessee tried to furnish the reply on 15.12.2023 it came to its notice that order was passed on 12.12.2023 and therefore the said reply was submitted through the mail. With this mail assessee filed the documents required by the CIT(E) (PB 3-6). In the light of these fact which are not disputed we are of the considered view that the order passed against the assessee violates the principles of natural justice.Therefore in the interest of natural justice and we do not wish to enter into the matter of the disputes but after hearing the rival contention the Bench is of the view that
8 ITA No. 328/JPR/2024 IMC of ITI Bhiwadi vs. CIT(E) let the ld. CIT(E) decide the issue based on the submission of the assessee and after providing proper opportunity of being heard to the assessee and making necessary enquiry in accordance with the law. However, the assessee will not seek any adjournment on frivolous ground and remain cooperative during proceedings before the ld. CIT(E).
Before parting, we may make it clear that our decision to restore the matter back to the file of the ld. CIT(E) shall in no way be construed as having any reflection or expression on the merits of the dispute, which shall be adjudicated by the ld. CIT(E) independently in accordance with law.
In the result, the appeal of the assessee is allowed for statistical purposes.
Order pronounced in the open court on 27/05/2024. Sd/- Sd/- ¼Mk0 ,l- lhrky{eh ½ ¼jkBksM deys'k t;UrHkkbZ½ (Dr. S. Seethalakshmi) (Rathod Kamlesh Jayantbhai) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 27 /05/2024 *Santosh आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू The Appellant- IMC of ITI Bhiwadi, Alwar. 1. 2. izR;FkhZ@ The Respondent- CIT(E), Jaipur
9 ITA No. 328/JPR/2024 IMC of ITI Bhiwadi vs. CIT(E) 3. vk;dj vk;qDr@ The ld CIT 4. vk;dj vk;qDr ¼vihy½@The ld CIT(A) 5. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत 6. xkMZ QkbZy@ Guard File (ITA No. 328/JPR/2024) vkns'kkuqlkj@ By order, सहायक पंजीकार@Aेेज. त्महपेजतंत
