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Income Tax Appellate Tribunal, ‘B’ BENCH, CHENNAI
Before: SHRI CHANDRA POOJARI & SHRI G. PAVAN KUMAR
आदेश / O R D E R PER G. PAVAN KUMAR, JUDICIAL MEMBER:
The assessee has filed the appeal against the communication No.464/222/09-10/CIT-I, Dated 01.02.2011 in respect of rejection of registration u/sec.12AA of the Income Tax Act, and appeal against order of the Commissioner of Income Tax (Appeals)-I, Madurai in C.No.464/222/CIT-I/2009-2010, Dated 27.09.2010 passed under & 613/Mds/2015 :- 2 -: section 12 AA (1)(b)(ii) of the Income Tax Act, 1961 rejecting the application for registration u/s. 12AA of the Act.
Both the appeals arise from the issue of rejection of 2.
Sec.12AA registration by the Revenue. Before the Tribunal, the assessee has filed two condonation applications for condoning the delay in filing the appeals in & 613/Mds/2015.
Before going into the merits of the case, the assessee has 3. pleaded for condonation of delay of 1454 days and 1542 days in filing the appeals in & 613/Mds/2015 respectively.
We have heard both the parties. At the time of hearing the 4. assessee institute is represented by Shri. S. Duraisamy, Chief Executive Officer of S. Duraisamy and Sons, who is authorized to represent on behalf of the institution being Vice Chairman of IMC –ITI (Women) and Nodal Officer of IMC affairs. The assessee has filed affidavits and prayed for condonation of delay without explaining the valid reasons for delay in filing the appeals and argued to consider the appeals on merits. The condonation petitions of the institute are as under:-
BEFORE THE INCOME TAX APPELLATE TRIBUNAL, CHENNAI ‘’ ‘’ BENCH ITA No.612/Mds/2015. Institute Management Committee, ITI(Women) Government ITI(Women), K.Pudur, Petitioner/Appellant Madurai - 625007.
& 613/Mds/2015 :- 3 -:
Vs Commissioner of Incometax-I(i/c) Madurai-2. Respondent / Respondent PETITION FOR CONDONATION OF DELAY The petitioner submits that the order of the Commissioner of Income-tax, Madurai rejecting the Sec.154 petition for registration u/s.12AA was received by the assessee on 2.2.11. The appeal to the Appellate Tribunal ought to have been filed on or before 3.4.11. Instead, the appeal was filed on 26.3.15 resulting in a delay of 3 years 11 months and 26 days. It is submitted that after this order was received, the petitioner was advised to file another application for registration along with all the supporting documents. The petitioner duly filed this application before CIT on 25.2.11. The CIT adjudicating this application, granted registration to the Society u/s.12AA vide his order dated 13.6.11, but effective from 1.4.10 relevant to asst. year 2011-12. Later, the officer issued notice u/s.148 for the asst. year 2010-11 and sought to assess the interest income from fixed deposits on the ground that registration is not available for this year and so assessee is not entitled to exemption u/s.11 of the Act. By order dated 19.3.13 passed u/s.148 r.w.s.143(3), the officer assessed the amount of interest against which the assessee has filed an appeal before the CIT(A), Madurai and is pending disposal. At this stage, the assessee was advised that it has obtain registration for the earlier period also for being entitled to exemption of its income. Thus, the petitioner approached the counsel for preparing an appeal to the Appellate Tribunal. The appeal was eventually filed on 26.3.15 with a delay of 3 years 11 months and 25 days. It is submitted that the delay in filing the appeal was neither willful nor wanton but due to circumstances beyond the control of the petitioner. The petitioner had been pursuing alternative remedies before the CIT in order to obtain the registration. In fact, the CIT having been satisfied with the genuineness of the Society and its activities had granted registration for the period commencing 1.4.10. If the delay is not condoned and the appeal decided on merits, the petitioner would be put to considerable hardship and injury. The entitlement of assessee to the benefits of sec.11 for the asst. year 2010-11 would not be available on a mere technical ground which is not envisaged in the provisions of the Act. Further, the issue is to be considered in the light of the Madras High Court decision in 370 ITR 517, wherein the Court has held that carrying on of activity cannot be set as a condition precedent for grant of registration of the Society/Trust. It is therefore prayed that the Hon'ble Tribunal may be pleased to & 613/Mds/2015 :- 4 -: condone the delay of 3 years 11 months and 25 days in filing the appeal, admit the appeal and dispose it of on merits and thus render justice. Dated this the 24th day of March 2015 at Madurai.
BEFORE THE INCOME TAX APPELLATE TRIBUNAL, CHENNAI ‘’ ‘’ BENCH ITA No. 613/Mds/2015. Institute Management Committee, ITI(Women) Petitioner/Appellant Government ITI(Women), K.Pudur, Madurai - 625007. Vs Commissioner of Incometax-I(i/c) Madurai-2. Respondent / Respondent
PETITION FOR CONDONATION OF DELAY The petitioner submits that the order of the Commissioner of Income- tax, Madurai rejecting registration u/s.12AA was received by the assessee on 16.11.10. The appeal to the Appellate Tribunal ought to have been filed on or before 15.1.11. Instead, the appeal was filed on 26 .3.15 resulting in a delay of 4 years 3 months and 10 days. It is submitted that after this order was received, the petitioner filed a rectification petition before the CIT on 8.12.10 and the CIT by order dated 1.2.11 rejected the same, which was received by assessee on 2.2.11. Subsequently, the assessee was advised to file another application for registration along with all the supporting documents. The petitioner duly filed this application before CIT on 25.2.11. The CIT adjudicating this application, granted registration to the Society u/s.12AA vide his order dated 13.6.11, but effective from 1.4.10 relevant to asst. year 2011-12. Later, the officer issued notice u/s.148 for the asst. year 2010-11 and sought to assess the interest income from fixed deposits on the ground that registration is not available for this year and so assessee is not entitled to exemption u/s.11 of the Act. By order dated 19.3.13 passed u/s.148 r.w.s.143(3), the officer assessed the amount of interest against which the assessee has filed an appeal before the CIT(A), Madurai and is pending disposal. At this stage, the assessee was advised that it has to obtain registration for the earlier period also for being entitled to exemption of its income. Thus, the petitioner approached the counsel for preparing an appeal to the Appellate Tribunal. The appeal was eventually filed on 26.3.15 with a delay of 4 years 3 months and 10 days.
& 613/Mds/2015 :- 5 -:
It is submitted that the delay in filing the appeal was neither willful nor wanton but due to circumstances beyond the control of the petitioner. The petitioner had been pursuing alternative remedies before the CIT in order to obtain the registration. In fact, the CIT having been satisfied with the genuineness of the Society and its activities had granted registration for the period commencing 1.4.10. If the delay is not condoned and the appeal decided on merits, the petitioner would be put to considerable hardship and injury. The entitlement of assessee to the benefits of sec.11 for the asst. year 2010-11 would not be available on a mere technical ground which is not envisaged in the provisions of the Act. Further, the issue is to be considered in the light of the Madras High Court decision in 370 ITR 517, wherein the Court has held that carrying on of activity cannot be set as a condition precedent for grant of registration of the Society/Trust. It is therefore prayed that the Hon'ble Tribunal may be pleased to condone the delay of 4 years 3 months and 10 days in filing the appeal, admit the appeal and dispose it of on merits and thus render justice. Dated this the 24th day of March, 2015 at Madurai.
At the time of hearing, the party in person could not explain the circumstances under which the appeals filed belatedly and emphasizing the cause of delay in filing the appeals is neither willful nor wanton but due to circumstances beyond the control of the petitioner. When the bench asked for the authorization the same was not produced except making a unconvincing statement and the prime facie institute has made an inordinate delay, the Co-ordinate bench of the Tribunal in the case of Joint Commissioner of Income Tax vs. Tractors & Farms Equipments Ltd 104 ITD 149 at page No.150 wherein it was observed as under :-
‘’ A distinction must be made between a case where the delay is inordinate and a case where the delays is of a few days. Whereas in the former case, the consideration of & 613/Mds/2015 :- 6 -: prejudice to the other side will be a relevant factor, so the case calls for a more cautious approach, in the latter case, no such consideration may arise and such a case deserves a liberal approach. No hard and fast rule can be laid down in this regard. The court has to exercise the discretion on the facts of each case, keeping in mind that in considering the expression ‘sufficient cause’ the principle of advancing substantial justice is of prime importance.
The law assists those who are vigilant, not those who sleep over their rights. This principle is embodied in the dictum: vigilantibus non doemientibus jura subveniunt.
The delay cannot be condoned simply because the appellant’s case is hard and calls for sympathy or merely out of benevolence to the party seeking relief. In granting the indulgence and condoning the delay, it must be proved beyond the shadow of doubt that the appellant was diligent and was not guilty of negligence, whatsoever. The sufficient cause within the contemplation of the limitation provisions must be a cause which is beyond the control of the party invoking the aid of the provisions. The cause for the delay in filing the appeal, which by due care and attention, could have been avoided, cannot be a sufficient cause within the meaning of the limitation provision. Where no negligence or inaction, or want of bonafides can be imputed to the appellant, a liberal construction of the provisions has to be made in order to advance substantial justice. Seekers of justice must come with clean hands.
In our opinion the circumstances explained in the condonation 5. petitions could not convince us and there seems to be a gross negligence on the part of the institution were no priority was fixed and such lapses cannot be condoned. Following the decision of Tractors & Farms Equipments Ltd (supra) where similar issue was dealt by the Tribunal and negligence, inaction and inordinate delay in filing the appeal was not condoned. Law assists those who are vigilant and not & 613/Mds/2015 :- 7 -: those who sleep over their rights. We considering the facts and circumstances explained in affidavit and also submissions of the Vice Chairman in the light of Co-ordinate bench decision, decline to condone the delay in filing the appeals and accordingly dismiss the appeals as unadmitted.
In the result, the appeals of the assessee are dismissed.
Order pronounced on Wednesday, the 16th day of December, 2015, at Chennai.