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TMI Blog2019 (5) TMI 1947X X X X Extracts X X X X X X X X Extracts X X X X ..... T(Appeals)-I, Pune has also erred in law and on facts in confirming the action of AO in denying the exemption u/s 10(23C)(vi) without appreciating that the appellant is existing solely for imparting education. 4. Alternatively and without prejudice, the learned CIT(A) erred in law and on facts in not granting benefit of set off of past years deficits (losses) against the taxable income of the appellant. 3. The present appeal is filed after delay of 1784 days. The assessee has filed an Affidavit along with an application for condonation of delay in filing the present appeal late. The main plea of assessee was that because of multiplity of proceedings going on before different authorities, filing of present appeal was delayed. The learned Authorized Representative for the assessee has filed before us an events chart of various assessment proceedings / appellate proceedings between the period 28.12.2007 to 21.05.2015, on which date the present appeal was filed before the Tribunal. Looking at the factual aspects of the case, wherein against the assessee, proceedings starting from assessment year 2002-03 were pending. The question which arises is whether the assessee was prevented by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. In the totality of the facts where there were multiple proceedings pending before different Forums in the case of assessee, we find the plea of assessee to be bonafide and the delay in filing the present appeal is thus, condoned. It may be pointed out that the Hon'ble Bombay High Court in recent decision in Vijay Vishin Meghani Vs. DCIT (2017) 398 ITR 250 (Bom) had condoned the delay of 2984 days on the ground that sufficient cause existed for condonation of delay. Further, we find support from the ratio laid down by the Hon'ble Supreme Court in the case of Collector, Land Acquisition Vs. Mst. Katiji & Ors. (1987) 167 ITR 471 (SC), wherein it was first laid down that sufficient cause should exist for condonation of delay; secondly, it was also held that the issue of sufficient cause should be interpreted with a view to do even-handed justice and most importantly it was held that where substantial justice was pitted against technicality of non-deliberate delay, then cause of substantial justice was to be preferred. The learned Authorized Representative for the assessee has relied on various other decisions of various Benches of Tribunal, which are being relied upon on simil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... years. The CIT(A) noted that the assessee had not furnished any copy of application in Form No.56D in support of its claim of having furnished the same. Secondly, under Rule 2CA, the statutory requirement was that application in Form No.56D should be submitted to the Chief Commissioner of Income, who was the prescribed authority under section 10(23C)(vi) of the Act and not before the Assessing Officer along with return of income. Thirdly, it was noticed that enclosures to the said return of income were filed seeking approval only for the year ending 31.03.2005 and not for three assessment years as claimed by the assessee. The CIT(A) has scanned and reproduced Form No.56D at pages 5 and 6 of appellate order. Therefore, the claim of assessee that the society sought exemption for three assessment years from assessment year 2005-06 to 2007-08 in Form No.56D, dated 27.10.2005 filed along with return of income for assessment year 2005-06 was held to be not factually correct. In the said Form 56D, the CIT(A) noted the assessee to have sought approval only for assessment year 2005-06 and not for subsequent two assessment years. The assessee had sought approval for assessment year 2006-07 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the month in which such application was received. The Tribunal noted the inaction of Chief Commissioner of Income Tax in neither approving nor rejecting the application and noted that till Taxation Laws (Amendment) Act, 2006 with retrospective effect from 01.04.2006, there was no time limit was prescribed for the action of Chief Commissioner on such application for the approval; thus, inference by implication would be that w.e.f. 01.04.2006 if the Chief Commissioner does not act upon the said application, then after passing of period of 12 months from the end of the month in which such application was received, it would be deemed that claimed approval was accepted / granted. The Tribunal held that in the present case till 01.04.2009 when the first appellate order was passed, admittedly, application for approval moved on 13.03.2006 before the learned Chief Commissioner was not disposed of. It was further held that the period of three years in view of the Tribunal was more than reasonable for deeming the authority below that application for approval of claim of exemption under section 10(23C) of the Act has been allowed by the Chief Commissioner. The Tribunal thus, directed the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Chief Commissioner. The Revenue in this regard had moved Miscellaneous Application against the order of Tribunal for assessment year 2005-06. The Miscellaneous Application was dismissed by the Tribunal in MA No.89/PN/2013 vide order dated 04.02.2014 and it was noted that the assessee had moved an application in the office of CCIT on 13.03.2006. The said application in prescribed form to the CCIT through the office of Commissioner was even acknowledged by the ITO, Ward 9, Akurdi, Pune vide letter dated 23.06.2006. The Tribunal then observed that as per Note below Form No.56D, the application form should be sent to CCIT or DG though CIT or DIT (Exemption) having jurisdiction over the assessee and the assessee had precisely done the same. The Tribunal thus was of the view that the application filed by assessee through the office of Commissioner was the basis for taking view that deemed approval recognizing the society needs to be allowed. Thus, the Miscellaneous Application filed by Revenue amounting to review of its own order by the Tribunal was held to be not permissible under law. 17. So, the situation now which arises after different orders of Tribunal is that taking co ..... X X X X Extracts X X X X X X X X Extracts X X X X
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