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Income Tax Appellate Tribunal, DELHI BENCH ‘G’, NEW DELHI
Before: Sh. G. C. Gupta, Hon’ble & Sh. O.P.Kant
ORDER PER O.PKANT,AM. These two appeals of the assessee are directed against two separate orders of the Director of Income Tax (Exemptions), New Delhi dated 20.03.2008 and learned Commissioner of Income-tax (Appeals) dated 25.03.2013. The grounds involved in both these appeal are in respect of and consequent to denial of registration u/s 12AA of the Income Tax Act, 1961 (in short ‘Act’) and therefore both these appeals are heard together and disposed off by a consolidated order. 2. First we take up the appeal in ITA No. 2104/Del/2011. 3. The solitary ground of appeal is as under:- “That the learned Director of Income Tax (Exemptions) erred in rejecting the appellant Trust’s applications for registration u/s 12AA of the Income Tax Act, 1961.”
4. There is delay of 1056 days in filing the present appeal. The assessee Trust has filed an application for condonation of delay along with an affidavit of trustee of the assessee Trust and explained reasons for delay in filing the present appeal.
5. We have heard the rival submissions and considered the relevant material on record for condonation of delay. The learned Authorised Representative (in short ‘AR’) of the assessee has submitted that order of the Director of Income Tax (Exemptions) rejecting the Trust’s application for registration, was received by the Trust sometimes in the month of March/ April 2008 and the necessary papers were sent to the auditor of the Trust for necessary follow up action. Further, he submitted that the trustees being academicians were not aware of the rights of the appeals of the Trust against the said order, as there was no mention of any appeal in the order of the Director of Income Tax (Exemptions). Further, he also ITA No.2104/Del2011 submitted that unlike the case of an assessment order, where the accompanying notice of demand clearly states that an appeal against the order can be filed before the learned Commissioner of Income-tax (Appeals) within 30 days, the order rejecting u/s 12AA registration was not containing any such advice or guidance and therefore as a result of oversight and ignorance of law, the appeal could not be filed within the period prescribed in the Act. Further, the ld. AR submitted that delay in filling of present appeal is neither deliberate nor willful and it was due to a bonafide mistake only. On the other hand, the learned Commissioner of Income-tax (Departmental Representative) [ in short ‘ CIT(DR)’ ]objected to the condonation of the delay as there was negligence on the part of the assessee for not filing the appeal within the period of limitation. She further submitted that the assessee has not explained sufficient cause for delay in filing the appeal.
6. After considering the rival submission and carefully gone through the affidavit filed by the trustee of the Trust we observed that fact of the case suggests that the assessee has not acted in malifide manner and the reasons explained are also not for any ulterior purpose. It is settled position of law that court should take lenient view on the issue of condonation of delay but the reasons for delay must be bona fide and not merely a device for camouflaging the ulterior purpose or an attempt to save the limitation in an underhand way. The law of limitation prescribed in the provision of section 253(5) of the limitation act envisages that there should have been a sufficient cause for not presenting the appeal within the period prescribed. Further the Courts have held that while construing the ‘sufficient cause’, the court should be liberal and lean in favour of such party. Further, in the case of Vinay Extraction Pvt. Ltd. Vs. Vijay Kumar (2004) 271 ITR 450 (Gurjrat), the Hon’ble High Court has observed as under: “It is true that the Apex Court has held that the Court should adopt a liberal approach in considering the application for condonation of delay and that substantial justice deserves to be preferred over technical considerations.”
7. Further, in the case of All India Primary Teachers Federation Vs. Director of Income Tax (Exemptions) (2005) 93 TTJ 0155, the ITAT Delhi Bench has condoned the delay of more than 27 years in filing the application for registration. The Tribunal in Para 6 its decision has held as under:- “Though it is commonly understood that everybody knows the law but Hon'ble Supreme Court has held in the case reported (1979) 118 ITR 326 (SC) (supra) that there is no such maxim known to law. Therefore, the office bearers of the society which keep on changing every two three years can be believed to have ignored the provision of law and entertained bona fide belief as to the compliance of all required statutory formalities by their predecessors. This situation and such explanation of the appellant is not something which is improbable. This aspect of the matter also cannot be lost sight of that there was no profit motive of the appellant-society and office bearers of the society are out of the primary teachers only with no knowledge of the nuances of IT law. Case laws cited by the learned Senior Departmental Representative have been considered by us and none of them applies to the facts of the present case. Legal propositions emanating from these decisions cannot be differed with but what is important in the present case is whether explanation of the delay in filing the registration application was for good and sufficient reasons which is a matter of fact to be deduced from the facts and circumstances of the present case and which we find that these exist in this case. Therefore, having regard to the all the facts and circumstances of the case of the appellant-society, we find that there existed sufficient reasons for not filing application of registration in time and therefore there was genuine and bona fide ground for delay in filing the application for registration from 1st April, 1973 till 31st March, 2000 which DIT ought to have condoned and hence his order is reversed and delay is hereby condoned from 1st April, 1973.”
8. In the instant case the office bearers being academicians with no knowledge of Income-tax law, the reasons explained by the assessee are found not to be malafide in manner or an attempt to cover up an ulterior purpose and therefore, we are of the opinion that liberal approach has to be taken for considering the sufficiency of the cause for not presenting the appeal within the prescribed period. We are satisfied with the reasons explained by the assessee that due to bona fide mistake the appeal could not be filed within limitation period. Accordingly, in the interest of justice, we condone the delay of 1056 days in filing the present appeal. 9. The solitary ground of the assessee is regarding denial of registration u/s 12AA of the Act. 10. At the outset of hearing, the ld AR of the assessee stated that the DIT(Exemptions) has denied the registration u/s 12AA relying on a earlier order passed on 31.07.2007, however, copy of the said order has not been made available to the assessee, despite repeated attempts for obtaining were made on behalf of the assessee. Further, the ld AR submitted that despite filing the application under RTI Act on 10.09.2012, the copy of the said order dated 31.07.2007 has not been provided to the assessee and in response to the application under RTI Act the concerned Public Information Officer (PIO) has replied as under:- “Please refer to above. In this connection, it is submitted that the information as sought by the Applicant cannot be provided immediately as the records could not be traced though vigorous efforts to locate the same have been made. The efforts to trace the same are being made and the requisite information shall be furnished after the records are obtained. The letter is forwarded to you office for information and necessary action at your end.” 11. The ld. AR further submitted that the trustee Dr. Ajay Kr. Singh has filed an affidavit in this respect. On the other hand, the learned CIT(DR) could not controvert the facts submitted in affidavit. She also stated that the letter was written on 07.09.2012 seeking copy of the office order dated 31.07.2007 from the AO but copy of the said order is still awaited. 12. We have heard the rival submissions and perused the material on record. In perusal of the order of the DIT (Exemptions) denying denied registration u/s 12AA of the Act , it is apparent that he except relying on the office order dated 31.07.2007, has not specified any reasons for denial of registration. The copy of the order dated