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Income Tax Appellate Tribunal, SURAT BENCH, SURAT
Before: SHRIPAWAN SINGH, JM &DR. A.L.SAINI, AM
IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRIPAWAN SINGH, JM &DR. A.L.SAINI, AM आयकर अपील सं./ITA No.35/SRT/2020 (�नधा�रणवष� / Assessment Year: (2019-20) (Physical Court Hearing) Dang Jilla Paragliding Adventure Commissioner of Income-tax (Exemption), Room No.609, 6th Floor, Association,O, Saputara, AT & P.O. Vs. Aayakar Bhawan (Vejalpur), Nr. Talahwa,Dang-394720 Sachin Tower, 100 Foot Road, Anandnnagar-Phrahladnagar Road, Ahmedabad-380015 �थायीलेखासं./जीआइआरसं./PAN/GIR No.: AABTD 9827 D (Appellant) (Respondent)
िनधा�रती क� ओर से /Assessee by : Shri Rasesh Shah, C.A राज�व क� ओर से /Respondent by : Shri Ravinder Sindhu– CIT-DR सुनवाई क� तारीख/ Date of Hearing : 25/01/2023 घोषणा क� तारीख/Date of Pronouncement : 02/02/2023 आदेश / O R D E R PER DR. A. L. SAINI, ACCOUNTANT MEMBER: Captioned appeal filed by the assessee, pertaining to the assessment year 2019-20, is directed against the order passed by the Learned Commissioner of Income Tax(Exemption)-Ahmedabad u/s 12AA(1)(b)(ii) of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) dated 21.10.2019.
Grounds of appeal raised by the assessee are as follows: “1. On the facts and in circumstances of the case as well as law on the subject, the learned CIT (Exemption) has erred in rejecting the application for registration u/s 12AA without providing sufficient opportunities for furnishing details and without issuing specific show cause notice. 2. It is therefore prayed that order passed by CIT(Exemption) may kindly be set aside with direction to him to grant recognition of Trust u/s 12AA. 3. Appellant craves leave to add, alter or delete any ground(s) either before or in the course of hearing of the appeal.”
ITA No35/SRT/2020 A.Y. 2019-20 Dang Jilla Paragliding Adventure Association
At the outset, Learned Counsel for the assessee stated that appeal filed by the assessee is barred by limitation by 36 days. The assessee has moved a petition requesting the Bench to condone the delay. The reasons of delay mentioned in the petition for condonation of delay, are reproduced below:
“1) The assessee begs to prefer this application for condonation of delay in relation to appeal filed against the order of the CIT(Exemption), Ahmedabad which is received by the assessee on 08.11.2019. There is a delay of 36 days in filing the appeal before Hon'ble Tribunal against the order passed by CIT(Exemption), Ahmedabad. 2) That the notice issued by CIT(Exemption), Ahmedabad on 07.09.2019 and 03.10.2019 were sent through-mail. These notices were not complied as managing trustee of the assessee was not having knowledge that the notice is sent by Income Tax Department through e-mail. Accordingly, the default was committed for non-compliance as managing trustee didn’t open the e-mail sent by the Income Tax Department. 3) That the order was received by the Managing Trustee Hariram Savant in physical form. The Managing Trustee is not conversant with the litigation proceedings as he is a small business -man and he has never gone for any kind of litigation in his life. 4) That the Managing Trustee Hariram Savant has consulted CA Abhishek Gandhi, the Income tax practitioner who has never attended the appellate proceedings before Hon'ble Tribunal or any lower authorities before. After receiving the notice from trustee, he consulted the Chartered Accountant, Rasesh Shah and associates through whom appeal was filed causing delay of 36 days. Accordingly the small delay was occurred in absence of proper knowledge of filing the procedure of appeal and limitation period on the part of Income Tax Practitioner, CA Abhishek Gandhi and Managing Trustee of the assessee. 5) Therefore, in the facts and circumstances of the case, the applicant prays to this Hon'ble Income Tax Appellate Tribunal: (a) To condone the delay of 36 days in filing the Appeal No.35/SRT/2020 and to extend the time for filing the same inclusive and upto the date of filing the appeal; (b) To grant such order and further relief as deemed fit by Hon'ble Income Tax Appellate Tribunal. 6) The above stated facts are true and correct to the best of my knowledge and belief and I know that to make a false affidavit is a criminal offence.”
Based on the above contents of the petition, Ld. Counsel pleads that assessee has explained the bona fide and sufficient reasons for delay that has occurred in Page | 2
ITA No35/SRT/2020 A.Y. 2019-20 Dang Jilla Paragliding Adventure Association
filing present appeal before the Tribunal, which should be condoned in the interest of justice.
On the other hand, Ld. Sr.DR for the Revenue opposed the prayer of Ld. Counsel for condonation of delay and stated that such delay should not be condoned and appeal of the assessee should be dismissed.
We have heard both the parties on this preliminary issue. We note that assessee had explained the delay and the reasons for delay was beyond the control of assessee. We note that after receiving the notice and order passed by Ld. CIT(Exemption) the assessee consulted with the concerned Chartered Accountant but who has never attended the appellate proceedings before the Tribunal. Thereafter the assessee has approached another Chartered Accountant who was appearing before the Tribunal, therefore, in this process such minor delay of 36 days has occurred and assessee has explained the bona fide and sufficient cause of such small delay. We note that the reasons given in the affidavit for condonation of delay were convincing and these reasons would constitute reasonable and sufficient cause for the delay in filing this appeal. Therefore, the delay deserves to be condoned.
Considering the above facts and circumstances of the case, as narrated above, we are of the considered opinion that in the interest of justice, the delay deserves to be condoned and to decide the appeal of assessee on merits in accordance with law. Accordingly, we condone the delay and admit the appeal of the assessee to adjudicate on merit.
On merits, Ld. Counsel for the assessee submitted that assessee resides in a backward area where e-mail facilities are very rare and the assessee did not open his e-mail, therefore assessee could not reply/respond the proceeding before Ld. CIT(Exemption). Now Ld. counsel undertakes that on behalf of assessee, he will be vigilant in future and to make proper compliance of the notice(es) and will not default in future for the purpose of service of notices through ITBA portal. The Page | 3
ITA No35/SRT/2020 A.Y. 2019-20 Dang Jilla Paragliding Adventure Association
Ld. Counsel for the assessee submitted that assessee has a good case on merit and is likely to succeed, if one more opportunity is allowed to hear the case on merits and the assessee be allowed to file necessary evidence in support of its claim. Therefore, ld Counsel states that one more opportunity should be given to the assessee to plead his case before ld CIT(Exemption).
9.The ld. CIT-DR for the Revenue submitted that despite granting of sufficient opportunities, the applicant has not provided the requisite details to satisfy the activities undertaking in consonance with the objects of the trust. The assessee has failed to appear before ld CIT(E). However, ld CIT-DR does not have objection if the matter is remitted back to the file of the ld.CIT(E ) for fresh adjudication on merits.
We have heard both the parties and we note that in the assessee’s case under consideration, the matter is relating to registration of the Trust u/s 12AA of the Act and the impugned order passed by the ld. CIT(Exemption), is an ex parte order and non-speaking order, therefore, we do not wish to make any comments on the merits of the grounds raised by the assessee. The ld. CIT(Exemption) has not examined assessment records and relevant documents and has not passed any speaking order. Considering the above facts, we note that assessee could not plead its case successfully before the ld. CIT(Exemption). We note that it is settled law that principles of natural justice and fair play require that the affected party is granted sufficient opportunity of being heard to contest its case. Considering the above facts and keeping in view the principle of natural justice, the matter is remitted back to the file of Ld. CIT(Exemption) to decide the case afresh. Needless to say, that before deciding the application, Ld. CIT(Exemption) shall grant opportunity of hearing to the assessee to furnish necessary details and information. The assessee is also directed to be more vigilant and make full compliance with the notices issued by Ld. CIT(Exemption) and not to seek adjournment without any valid reasons. Hence, for statistical purposes, the appeal of the assessee is treated to be allowed.
ITA No35/SRT/2020 A.Y. 2019-20 Dang Jilla Paragliding Adventure Association
In the result, appeal of the assessee is allowed for statistical purposes.
Order pronounced on 02/02/2023 by placing the result on the notice board. Sd/- Sd/- (PAWAN SINGH) (Dr. A.L. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER Surat/िदनांक/ Date: 02/02/2023 Dkp Outsourcing Sr.P.S. Copy of the Order forwarded to 1. The Assessee 2. The Respondent 3. The CIT(A) 4. Pr.CIT 5. DR/AR, ITAT, Surat 6. Guard File By Order // True Copy // Senior Private Secretary/Private Secretary/ Assistant Registrar. ITAT, Surat rue copy/