TMI Blog2017 (4) TMI 565X X X X Extracts X X X X X X X X Extracts X X X X ..... om one affidavit to the last one. - Decided against assessee. - ITA No. 942/PUN/2010 - - - Dated:- 21-3-2017 - Ms. Sushma Chowla, JM And Shri Anil Chaturvedi, AM Appellant by : Shri S.N. Doshi Respondent by : Shri Rajeev Kumar ORDER Per Sushma Chowla, JM This appeal filed by the assessee is against the order of CIT-I, Nashik dated 13.08.2009 against order passed under section 12AA(3) of the Income-tax Act, 1961 (in short the Act ). 2. The assessee has raised the following grounds of appeal:- 1. The Learned Commissioner of Income Tax-1, Nashik has erred in cancelling the registration of the assessee as a charitable trust under section 12A of the Income Tax Act, 1961. 2. The Learned Commissioner of Income Tax-1, Nashik has observed that the society is carrying on other objects of public utility is rendering services in the nature of trade, commerce or business therefore cancelled registration under section 12AA and other provisions of the Act. 3. Without properly appreciating facts and circumstances of the case and provisions of law, the learned Commissioner of Income Tax-1, Nashik has erred in passing order under section 12AA(3) of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sidered since it was already cancelled by the Assessing Officer. 5. The assessee Trust belongs to a semi-urban area which falls in the district of Dhule. Since the assessee Trust is belonging to such a rural area, it fails to be acknowledged by the litigations of law and the legal proceedings and fails to be aware of the assessment procedures to be carried out by them in respect of the order passed by the Commissioner of Income Tax-I, Nashik. 6. Later, the assessee Trust became aware of the formalities to be carried out by it in regard of the order passed after consulting the required tax consultants. 7. Consequently, relevant efforts and procedures were conducted in respect of filing an appeal in Form No. 36 before your Honour. Thus the appeal is being filed on a belated date. We had filed a letter dated July 01, 2010 with the Hon. Asstt. Registrar, The Income Tax Appellate Tribunal, Pune on July 09, 2010 requesting for condoning the delay in filing the appeal and admit the appeal memo. I further affirm that whatever is stated above is true to the best of my knowledge and belief. This affidavit is made at Nashik on 9th day of July, 2012. 4. Durin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urther solemnly affirms that whatever is stated above is true and correct to the best of my knowledge and belief. 5. A perusal of the said affidavit reflects the contention of the assessee that they were totally unaware about the provisions relating to filing of an appeal as well as provisions laid down in Income Tax Act. Because of this reason of ignorance of the provisions relating to filing of appeal, the Trustee claimed that they did not realise the seriousness of the order. It is further solemnized that the assessee Trust had no benefit of guidance of tax consultant. The assessee claims that the accounts were audited by Chartered Accountant. However, he had not much dealing with the cases relating to registration u/s 12A, recognition u/s 80G of the Act. The assessee prayed that the delay in the case may be condoned. 6. On the next date of hearing, another supplementary affidavit was filed which reads as under; I, Nandkishor Kantilal Tated, age about 48, Occupation Medical practicener, residing at Navkardeep Bunglow, near Supreme Kidney Center, Sadhu Waswani Road, Nashik 422002, here by state on solemn affirmation as under- 1. That I have filed an affidavit d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s hard pressed with other legal matters. He claims that the said order remained with him for around 7 to 8 months and when he came to know that the order was relating to Income Tax, it was handed over to the Chairman explaining that he does not deal with the Income Tax matters and the same should be handed over to an advocate or Chartered Accountant engaged in the income tax matters. He solemnly states that the order dated 13.08.2009 was handed over to him somewhere in the month of September and this was the reason causing delay in filing appeal late before the Tribunal. 8. The Ld. AR for the assessee has time and again stated that the Tribunal appears to have condoned the delay on 18.07.2012 i.e the date on which issue of condonation of delay was fixed for hearing. However, we find no merit in the plea of the assessee in this regard, since no order of condoning delay in filing appeal late, is available on record. Accordingly, during course of hearing, the assessee was asked to substantiate its claim and justify the reason for filing the appeal late by 253 days. It is undisputed fact that the appeal was filed after the delay of 253 days. The Ld. AR for the assessee placed relian ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... delay may be condoned and the appeal be heard on merit. The said onus is upon the assessee to establish its case. 12. The Hon ble Supreme Court in Collector, Land Acquisition V/s. MST. Katiji Ors (supra) has held as under: 3. The legislature has conferred the power to condone delay by enacting s.5 of the Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on merits . The expression sufficient cause employed by the legislature is adequately elastic to enable the Courts to apply the law in a meaningful manner which subserves the ends of justice- that being the life- purpose of the existence of the institution of Courts. 13. The Hon ble Supreme Court in the said case was deciding issue of delay of 4 days by the State , in filing appeal late and it was observed that the liberal approach should be adopted while condoning the delay. However, the doctrine must be applied in a rational common sense and pragmatic manner. 14. In another decision, the Hon ble Supreme Court in Vedabai alias Vaijayanatabai Baburao Patil V/s. Shantaram Baburao Patil (supra), while condoning the delay of seven days on ground of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en filed which is duly signed by the Chartered Accountant and the same is annexed to the audited accounts and report of the auditor has been filed from year to year. In such circumstances, it cannot be said that the assessee does not have the service of any professional to guide it who know the procedure of filing appeal before the Tribunal. 18. Now coming to the factual aspect of the condonation application made by the assessee, the assessee has filed various affidavits. The first contention of the assessee is that it is not aware of the procedure relating to filing of appeal as well as provisions laid down in Income Tax Act. The Courts have time and again held ignorance of law can not be excused. Now let us look at the contention of the assessee establishing the sufficient cause explaining delay in filing appeal late. In the first affidavit dated 9th July, 2012, the assessee Trust states that it became aware of the formalities to be carried out after consulting the tax consultants and consequently the appeal was filed late. In the second affidavit which is notarized on 07.05.2016, the assessee pleads reason of ignorance of the provisions relating to filing of appeal and furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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