Itxa/1762/2017 Of Nandkishor Education Society v. Commissioner Of Income Tax Officer-1 And Anr

spb/ 20itxa1762-17.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO. 1762 OF 2017 Nandkishor Education Society ... Appellant. V/s. Commissioner of Income Tax OfÏcer-1,Nashik & Anr. … Respondents. --- Mr. Mihir C. Naniwadekar, Advocate a/w. Mr. RuturajGurjar, Advocate for the Appellant.Mr. Sham Walve, Advocate a/w. Mr. Pritesh Chatterjee,Advocate for the Respondents. --- CORAM : UJJAL BHUYAN AND MILIND N. JADHAV,JJ. PC : DATE : JANUARY 22, 2020. 1Heard Mr. M. C. Naniwadekar, learned counselfor the Appellant; and Mr. Sham Walve, learned standingcounsel Revenue for the Respondents. 2Appellant is aggrieved by the order dated21.03.2017 passed by Income Tax Appellate Tribunal,Pune Bench “A”, Pune (Tribunal) in Income Tax AppealNo. 942/PUN/2010 for the assessment year 2009-10. 1/4 spb/ 20itxa1762-17.doc 3From the materials on record, it is seen thatthe assessee had preferred the said appeal againstthe order of Commissioner of Income Tax-I, Nashikdated 13.08.2009, cancelling the registration of theassessee as a Charitable Trust under section 12AA(3) ofthe Income Tax Act, 1961 (briefly, “the Act”hereinafter). 4There was delay in filing the said appeal andthe delay was of 253 days for which a delaycondonation application was filed. To explain thedelay, assessee had filed a number of afÏdavits.Tribunal vide the impugned order dated 21.03.2017held that there was inconsistency in the stand taken bythe assessee in the different afÏdavits and therefore, itwas further held that the assessee had failed to showsufÏcient cause in filing the related appeal late.Consequently, the delay condonation application wasdismissed and resultantly, the related appeal of theassessee was dismissed as being time barred. 5Aggrieved, present appeal has beenpreferred. 5.1.All the question proposed as substantialquestions of law relate to non-condoning of delay infiling the related appeal, by the Tribunal. 2/4 spb/ 6Learned counsel for the Appellant has takenus through the averments made in the Memo of Appealincluding the proposed substantial questions of law aswell as the afÏdavits filed by and on behalf of theassessee before the Tribunal to contend that theassessee had explained the delay in filing the appeallate and that the approach of the Tribunal was tootechnical. Tribunal was not justified in declining tocondone the delay. 7On the other hand, Mr. Sham Walve, learnedstanding counsel Revenue for the Respondentssupports the order of the Tribunal and submitted thatsince the appellant has failed to show sufÏcient cause,Tribunal had no other alternative but to reject theappeal as being time barred. 8We have heard the submissions advanced byboth the sides. We have perused the order passed theTribunal as well as the afÏdavits filed by the assesseedated 07.05.2016, 23.12.2016 and 24.11.2016. Wehave also examined the afÏdavit filed by the counselof the assessee on 21.11.2016. 3/4 Digitallysigned byShalikram P.ShalikramBoreyP. BoreyDate:2020.01.2813:00:48+0530 20itxa1762-17.doc spb/ 9On thorough consideration of the matter andtaking an overall view, we are of the opinion thatTribunal was not justified in refusing to condone thedelay of 253 days in filing the appeal by the assessee.We are of the further view that it would be in theinterest of justice if the appeal of the assessee is heardand decided on its own merit; after all, the issue relatesto cancellation of the registration of the assessee as aCharitable Trust under section 12AA(3) of the Act. 3/4 Digitallysigned byShalikram P.ShalikramBoreyP. BoreyDate:2020.01.2813:00:48+0530 20itxa1762-17.doc spb/ 9On thorough consideration of the matter andtaking an overall view, we are of the opinion thatTribunal was not justified in refusing to condone thedelay of 253 days in filing the appeal by the assessee.We are of the further view that it would be in theinterest of justice if the appeal of the assessee is heardand decided on its own merit; after all, the issue relatesto cancellation of the registration of the assessee as aCharitable Trust under section 12AA(3) of the Act. 10Consequently we set aside the order of theTribunal dated 21.03.2017 and condone the delay infiling Income Tax Appeal No. 942/PUN/2010 by theappellant. However, the appellant shall deposit asum of Rs. 10,000/- with the Maharashtra State LegalServices Authority and submit receipt of the samebefore the ofÏce of the Tribunal. Tribunal shall hear anddecide the aforesaid appeal on its own merit. Needlessto say we have not expressed any opinion on merit andall contentions are kept open. 11Accordingly, appeal is disposed of in theabove terms. No cost. (MILIND N. JADHAV, J.) (UJJAL BHUYAN, J.) ….. 4/4