KEEDAY MAKAUDAY FOUNDATION,JAIPUR vs. CIT(EXEMPTION) JAIPUR, JAIPUR

आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”B” JAIPUR Jh lanhi xkslkbZ] U;kf;d lnL; ,oa Jh jkBkSM+ deys'k t;arHkkbZ] ys[kk lnL; ds le{k BEFORE: SHRI SANDEEP GOSAIN, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM vk;dj vihy la-@ITA. No. 894/JPR/2024 cuke Keeday Makauday Foundation The CIT-Exemption, Jaipur. Vs. 111, Basement, Vivek Vihar, Opposite Dainik Bhaskar, JLN Marg, Jaipur. LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AAICK7499N vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Shri Vivek Bhargav (C.A.) jktLo dh vksj ls@ Revenue by : Shri Ajey Malik ( CIT) a lquokbZ dh rkjh[k@ Date of Hearing : 20/08/2024 mn?kks"k.kk dh rkjh[k@Date of Pronouncement : 29/08/2024 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 28.092022 as per provision of under Section 80G of the Income Tax Act [here in after the Act]. 2. In this appeal, the assessee has raised following grounds: - “1. The ld. CIT(Exemption) erred in law and on facts in rejecting the application for registration u/s 80G. 2. the appellant craves leave to add, amend or alter any or all ground of appeal.”

2 ITA No. 894/JPR/2024 Keeday Makauday Foundation vs. CIT(E)

3.1 At the outset of hearing, the Bench observed that there is delay of 572 days in filing of the present appeal by the assessee for which the ld. AR of the assessee filed application for condonation of delay with following prayers and the assessee to this effect also filed an affidavit :-

“1. The above-named assessee is filing an income tax appeal before the Hon'ble bench. The appeal has been filed online on 21/06/2024, however the hard copies of form 36 and appeal documents shall be presented in one or two days. 2. There is delay of about 570 days as the due date was 28/11/2022 (the order challenged in appeal was received on 29/09/2022). 3. That the foundation made applications for registration u/s 12AB and approval u/s 80G w.e.f. AY 2022-23. Both the applications were rejected vide orders dated 28/09/2022.The Id. CIT(E) has mentioned it in the order rejecting application u/s 80G as under- "1.The applicant filed online application online on 31.03.2022 in Form No. 10AB for seeking exemption u/s 80G of the Income Tax Act, 1961. 2. As per rule 11AA of the Income Tax Rule, 1962, the registration w/s 12A/12AA or notification u/s 10(23C) is a precondition for granting approval u/s 80G of the I.T. Act, 1961. Vide this office order No. ITBA/EXM/F/EXM45/2022- 23/1046078216(1) dated 28.09.2022 the applicant Society/trust/samiti has been denied registration w/s 12AB. Therefore, it is not eligible for exemption u/s 80G of the I.T. Act, 1961." 3. In view of above discussion, the application in form No. 10AB seeking exemption u/s 80G is rejected. The applicant is, however, at liberty to apply afresh after completing the requisite details.” 4. It was mentioned in the rejection order u/s 80G that the applicant is, however, at liberty to apply afresh after completing the requisite details. On the basis of this sentence a bona fide belief was formed that if approval u/s 12AB is obtained the assessee shall be allowed approval u/s 80G with retrospective effect from AY 2022-23. 5. Therefore foundation preferred an appeal against rejection of registration u/s 12AB and the appeal was allowed by the Hon'ble ITAT

3 ITA No. 894/JPR/2024 Keeday Makauday Foundation vs. CIT(E) vide order dated 30/01/2023 and appeal effect was granted by CIT(Exemptions) vide order dated 01/05/2024. The registration u/s 12AB was granted with retrospective effect from AY 2022-23. No appeal was preferred against the rejection of approval u/s 80G on the basis of bona fide belief as mentioned in above para. 8. The assessee tried to apply for approval u/s 80G with retrospective effect from AY 2022-23 on e-filing website but application was not accepted. The assessee also moved application before CIT(Exemption) for approval u/s 80G with retrospective effect from AY 2022-23 but the same has also been not accepted. 9. The delay is on account of bona fide mistaken belief based on wordings of the rejection order u/s 80G The foundation has not been benefited by lodging late appeal and the delay is non-deliberate. Affidavit narrating above facts is attached herewith. 10. There is no negligence on part of Foundation in late filing of appeal. 11. That your Honours are empowered under section 253(5) of the Act to condone delay in filing appeal. 12. Supportive Cases a) Bona fide Belief- In case of Anil Kumar Nehru v. Asstt. CIT [2019] 101 taxmann.com 191/260 Taxman 372 (SC) the affidavit filed by the assessee before The Hon'ble Bombay High Court, for condonation of delay in filing appeal, it was averted that as four appeals on identical issues for earlier years were pending before this Court, he was under a bona fide belief that relief, if any, granted in the appeals pending before this Court would inure to his benefit for the subject assessment year. The Hon'ble High Court held that the affidavit as filed did not carry credibility. In further appeal, the Hon'ble Apex Court held that the High Court should not have taken such a technical view of dismissing the appeal in the instant case on the ground of delay, when it had to decide the question of law between the parties in any case in respect of the earlier assessment years. b) Liberal View to be taken-The words 'sufficient cause' must generally receive a liberal construction so as to advance substantial justice when no negligence or inaction or want of bona fides is imputable to appellant, [refer- UOI v. Suresh N. Shetty [1986] 26 Taxman 398 (Kar.) 13. It is submitted that the reason for delay in filing of appeal is sufficient cause as per provisions of sub- section (5) of section 253 under the facts and circumstances of the case and the case laws relied upon. PRAYER

4 ITA No. 894/JPR/2024 Keeday Makauday Foundation vs. CIT(E) 14. It is, therefore, most respectfully prayed that the delay of 570 days in filing the appeal may very kindly be condoned and the appeal be kindly admitted.”

In support of the contentions so raised the Authorized signatory filed an affidavit to support the contentions raised in the prayer for 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 572 days is on bona fide misunderstanding that the present order under dispute will be recalled when the appeal of the assessee for 12A is decided by the ITAT. Which ultimately decided and subsequently the assessee was granted the registration u/s 12AB of the Act. When the effectively assessee prayed to revive the pending matter of the 80G recognition vide letter dated 02.05.2024 the assessee was denied since that order passed u/s. 80G of the Act was not challenged by the assessee and therefore, this appeal is delayed based on the under wrong belief and which was bonafide advise received from the expert. This is the reasons for the delay in present appeal. Considering the decision of the apex court in the case of Anil Kumar Nehru vs. Asstt. CIT(2019 101 taxmann.com 191 (SC) wherein it was held that “assessee was

5 ITA No. 894/JPR/2024 Keeday Makauday Foundation vs. CIT(E) under a bona fide belief that relief, if any granted in those appeals pending before the court would ensure to his benefit for subject assessment year as well.” The apex court considered that bona fide belief and condone the delay. Since the fact of the case on hand and that case as referred to are similar delay may be condoned. Thus, ld. AR of the assessee prayed 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, the ld. DR objected to assessee’s application for condonation of delay as the there is substantial delay in bringing the present appeal. The reasons that the 80G will be granted automatic is not sufficient reason.

3.4 We have heard both the parties and perused the materials available on record. The Bench Noted that the reasons advanced by assessee for condonation of delay of 572 days being advise received that since the application for recognition is denied because 12AB registration was denied and since that appeal was filed on disposal of that appeal the decision will apply was sufficient and bona fide reasons based on the decision of the apex court decision relied by the ld. AR in the case of Anil Kumar Nehru

6 ITA No. 894/JPR/2024 Keeday Makauday Foundation vs. CIT(E) vs. Asstt. CIT(2019 101 taxmann.com 191 (SC). Thus, we concur with the submission of the assessee and condone the delay of 572 days in filing the appeal by the assessee in view of the decision of Hon’ble Supreme Court in the case of Anil Kumar Nehru vs. Asstt. CIT (supra) as the assessee was prevented by sufficient cause based on the advised of expert received.

7 ITA No. 894/JPR/2024 Keeday Makauday Foundation vs. CIT(E) 5. The assessee preferred the present appeal praying that since the earlier application was refused/rejected merely on the ground that the assessee was not granted for recognition registration u/s 12AB of the Act. Now, since these has been granted that there is no reason to deny the recognition u/s 80G of the Act to the assessee merely on technical ground. Therefore, the ld. AR of the assessee prayed that the matter be restored to the file of ld. CIT(E) to decide based on the merits of the case.

“1.The applicant filed online application online on 31.03.2022 in form No. 10AB for seeking exemption u/s 80G of the Income Tax Act, 1961. 2. As per rule 11AA of the Income Tax Rule, 1962, the registration u/s 12A/12AA or notification u/s 10(23C) is a

8 ITA No. 894/JPR/2024 Keeday Makauday Foundation vs. CIT(E) precondition for granting approval u/s 80G of the I.T. Act, 1961. Vide this office order No. ITBA/EXM/F/EXM45/2022- 23/1046078216(1) dated 28.09.2022 the applicant Society/trust/samiti has been denied registration u/s 12AB. Therefore, it is not eligible for exemption u/s 80G of the I.T. Act, 1961.”

As, is evident from the above finding of the ld. CIT(E) that application of the assessee for recognition u/s 80G of the Act was rejected as their registration u/s. 12AB of the Act was not approved. That order was challenged before the ITAT by the assessee and consequently the assessee now in possession of the 12AB registration the application for recognition u/s. 80G is required to be decided based on the merits of the case as there is no other reasons for rejection. Based on the set of facts presented before us we are of the considered view that the assessee’s case is required to be decided afresh as the assessee is in possession of registration of 12AB of the Act and the disputed order is rejected based on the fact the registration of the assessee trust was denied as per section 12AB of the Act. Thus, the Bench does not want to go into merit of the case but it is imperative that the assessee must be provided adequate opportunity based on these facts. In view of the matter, the Bench feels that the assessee should be given one more

9 ITA No. 894/JPR/2024 Keeday Makauday Foundation vs. CIT(E) chance to contest the case for recognition u/s. 80G of the Act before the ld. CIT(E) and the the assessee is directed to produce all the relevant papers concerning the application so filed before the ld. CIT(E) to settle the dispute raised hereinabove.

In the result, the appeal of the assessee is allowed for statistical purposes. Order pronounced in the open Court on 29/08/2024.

Sd/- Sd/-

¼ lanhi xkslkbZ ½ ¼ jkBkSM deys’k t;arHkkbZ ½ (Sandeep Gosain) (Rathod Kamlesh Jayantbhai) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 29/08/2024 *Santosh आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. vihykFkhZ@The Appellant- Keeday Makauday Foundation, Jaipur. 2. izR;FkhZ@ The Respondent- CIT-Exemption, Jaipur. 3. vk;dj vk;qDr@ CIT

10 ITA No. 894/JPR/2024 Keeday Makauday Foundation vs. CIT(E) 4. vk;dj vk;qDr@ CIT(A) 5. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत. 6. xkMZ QkbZy@ Guard File { ITA No. 894/JPR/2024} vkns'kkuqlkj@ By order

सहायक पंजीकार@Aेेज. त्महपेजतंत