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Income Tax Appellate Tribunal, JAIPUR BENCHES,”B” JAIPUR
Before: DR. S. SEETHALAKSHMI, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM vk;dj vihy la-@ITA. No. 257/JP/2023
ORDER PER: RATHOD KAMLESH JAYANTBHAI, AM This is an appeal filed by the assessee against the order of the Learned Commissioner of Income Tax (Exemptions), Jaipur dated 20.09.2022 [hereinafter referred to as (CIT(E)] wherein the ld. CIT(E) on the basis of field verification and in absence of details not being furnished by the assessee rejected the application for registration U/s 12AA of the I.T. Act.
2. At the outset of hearing, the Bench observed that there is delay of 157 days in filing the appeal by the assessee for which the ld. AR of the assessee filed an affidavit stating the reasons for delay and prayed for condonation of delay, the content of the affidavit reads as under :-
AFFIDAVIT FOR CONDONATION OF DELAY IN FILING APPEAL APPEAL NO In the matter of Rajasthan Avasan mandal karmchari samiti, Jaipur Community Center Aravli Marg, Sector -8 Man Sarovar, Jaipur, Rajasthan - 302003PAN NO:AAATR9142G Affidavit of Rajasthan Avasan mandal karmchari samiti, Jaipur Community Center, Aravli Marg Jaipur-302020 through its president SHRI JAG MOHAN SINGH RATHORE That I the above-named deponent, am well conversant with the facts deposed to below-
That the time for filing appeal before the Tribunal was on19 Nov 2022 however it has been informed by your good self that appeal is delayed for152 days.
That delay was due to thereason that physical notice was never received by trustees and not served at registered office at samiti.
The notice of the department was sent on mail idmaheshtiari49@yahoo.com but this was not correct mail id as appearing in notice but correct mail id which is registered on income tax site in profile is maheshtiwari49@yahoo.com therefore notice was not served in proper manner as prescribed by income tax act 1961 and ex parteorder passed by cit (exemption) is null and void.
4. That while accessing the site for e payment as per new system it came to the notice that some order as stated above has been passed by CIT (E)) against which it was decided to file the appeal Therefore, appeal was delayed by 152dayswhich was beyond the control of the appellant.
5. That form on 36 had been filed on portals on 20/04/2023
6. That the physical copy of memo of appeal has been filed onin the office of the Tribunal.
That there exit reasonable cause due to which he was prevented to file the appeal within time and delay was beyond his control therefore appeal deserve to be admit.”
3. On this issue during the course of hearing, the ld. DR objected to assessee’s application for condonation of delay stating that the serving of the notice at the email is sufficient but at same time prayed that Court may decide the issue as deem fit in the interest of justice.
We have heard the contention of the parties and perused the materials available on record. The prayer by the assessee for condonation of delay of 157 days has as the email id mentioned was not correct as contended in the affidavit placed on record. Therefore, we concur with the submission of the assessee. Thus the delay of 157 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) as the assessee is prevented by sufficient cause and therefore, we admit this appeal.
The assessee has marched the present appeal on the following ground of appeals:
“1. Under the facts and circumstances of the case, Learned CIT (Exemption) was not justified while passing ex-parte order u/s 12AB of the Income Tax Act 1961.
2. Under the facts and circumstances of the case, Learned CIT (Exemption) was not justified while passing the order without ensuing service of notice.
3. Under the facts and circumstances of the case, Learned CIT (Exemption) was not justified while passing the order without considering the contents filed in from 10AB and attachments there with.
4. Assessee craves to alter, modify, change grounds of appeal before hearing.”
The ld. AR appearing on behalf of the assessee submitted that the assess is a group of uneducated people engaged in the business and not aware about the whole formalities under the Income Tax Act and since, the applications were rejected merely by the ld. CIT(E) on account of non submission of details as the detailed in the ld. CIT(E) order dated 20.09.2022. The relevant finding of the ld. CIT(E) is as under:
“5,To decide the matter of seeking registration u/s. 12AB, the genuineness of the activities being undertaken by the applicant are also to be examined. The applicant has not submitted any such details and other information. Therefore, it is not known that the applicant is actually carrying out the activities as per its objects. Thus, the charitable nature and genuineness of the activities of the applicant could not be established.”
In the light of these facts, the ld. AR of the assessee prayed before the Bench that they are agreeable to furnish the details as may be requested by the ld. CIT(E) and therefore requested one more opportunity in the interest of justice be granted to the assessee for furnishing the details required and to prove that their trust fulfill requirement of law. The ld. AR of the assessee given oral assurance that they are ready to furnished all the information that has been called for by the office of the ld. CIT(E). The ld. AR of the assessee also filed the following written submission:
“1. Under the facts and circumstances of the case, Learned CIT (Exemption) was not justified while passing ex-parte order u/s 12AB of the Income Tax Act 1961.
Our Submissions: it is respectfully submission that CIT (Exemption) has passed the exemption order u/s 12AB of The income tax Act 1961 without verifying correct facts and nature of the case in this regard it is humbly submitted That appellant has filled form NO 10AB in which complete details along with supporting was Available with CIT Exemption but instead of ascertaining and deciding the matter on merit order of rejection were passed.
2. Under the facts and circumstances of the case, Learned CIT (Exemption) was not justified while passing the order without ensuring the service of notice.
Our Submissions: it is submitted that CIT Exemption passed the order without ensuring the service of notice which is clear from the fact that appellant has visited the site and came to know that notice has been issued at mail id mahestiari49@yahoo.com instead of maheshtiwari49@yahoo.com which is correct mail ID and registered on porta il therefore without ensuring service of notice order passed is invalid it is also to clarified that we had neither received any notice physically nor on our mail ID. Therefore unless notice is served on appellant proceeding concluded and order passed is not sustainable and is liable to be quashed The Division Bench of the Delhi High Court in the case of Suman Jeet Agarwal vs ITO (Delhi high court 2022 449 page no 157consisting of Justices Manmohan and Manmeet Pritam Singh Arora held that notice sent to unrelated e-mail address having no concern with the assessee does not amount to Due Despatch of Notice
3. Under the facts and circumstances of the case, Learned CIT (Exemption) was not justified while passing the order without considering the contents filed in form-10AB and attachments there with.
Our Submissions: it is respectfully submitted that appellant has filled form 10AB along with all the annexures & supporting at the time of applying for registration CIT Exemptions could have taken the information form there which is available on income tax portal therefore it is not correct to say that No attachment was not furnished
4. Assessee craves to alter modify change grounds of appeal before hearing This ground of appeal is general in nature therefore no submission are being made.”
6.1 The ld. AR of the assessee filed the following documents to support the contentions so raised:
S. No. Particulars Page No. 1 Written submission 1-2 2 Order of CIT(Appeals) 3-7 3 Form no. 10AB 8-14 4 Brief of Suman Agarwal vs. ITO (2022) 449 ITR 517 15-17 (Del) 5 Affidavit for condonation of delay 18-18 6 Copy of notice showing incorrect mail address 19 submitted that the parties are not cooperating before in ITAT as well as the same were remained not cooperation and not submitted the details called for by the office of the ld. CIT(E) and ld. CIT(E) has rightly denied the benefit of registration U/s 12AA of the Act after taking proper report and verification and therefore the order of the ld. CIT(E) may please be sustained and the registration has rightly been denied based on the detailed facts placed on record.
We have heard the rival contentions and persuaded the order of ld. CIT (E). We have also gone through the various legal judicial pronouncement relied upon by the assessee in their written submission. As the assessee admitted that they have not been complied / furnished the details due to lack of proper knowledge on procedural aspect of registration. Even the notices were served on the wrong mail id of the assessee and these has resulted the noncompliance to the notices also. Not only that then the activity of the trust is in the nature of general public utility but since the assessee has not placed on record the required details registration was simply denied the registration on the non-compliance / non view that the assessee is required to be given one more chance for furnishing the details required for registration in the interest of natural justice. In terms of these observation, the appeal filed by the assessee is allowed statistical purposes and at the same learned Commissioner of Income Tax, (Exemption) is directed to issue a fresh notice and decide the issue after affording reasonable opportunity to the assessee to place on record their version and based on this observation the appeal of the assessee is allowed and at the same time ld. CIT(E) may decide the issue a fresh in accordance with the law.
In the result, the appeal of the assessee is allowed for statistical purposes.
Order pronounced in the open Court on 28/07/2023 Sd/- Sd/- ¼ Mk0 ,l- lhrky{eh ½ ¼ jkBksM deys'k t;UrHkkbZ ½ (Dr. S. Seethalakshmi) (Rathod Kamlesh Jayantbhai) U;kf;d lnL;@Judcial Member ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 28/07/2023 *Ganesh Kumar, PS. आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू vihykFkhZ@The Appellant- Rajasthan Avashan Mandal Karmachari Vikas 1. Samiti, Jaipur 2. izR;FkhZ@ The Respondent- CIT Exemption, Jaipur 3. vk;dj vk;qDr@ CIT vk;dj vk;qDr@ CIT(A) 4.