Income Tax Appellate Tribunal - Delhi
Haldiram Education Society, New Delhi vs Assessee on 27 October, 2011
IN THE INCOME TAX APPELLATE TRIBUNAL
DELHI BENCH "C" DELHI
BEFORE SHRI C.L. SETHI AND SHRI K.G. BANSAL
ITA No. 3946(Del)/2011
Assessment year: N.A.
Haldiram Education Society, Director of Income-tax (E),
B-1/H-8, Mohan Cooperative Vs. Aaykar Bhawan, 3rd floor,
Industrial Estate, Mathura Road, Distt. Centre, Laxmi Nagar,
New Delhi. Delhi.
(Appellant) (Respondent)
Appellant by : Shri K. Sampath, Advocate &
ShriV. Raja Kumar, Advocate
Respondent by: Shri Salil Mishra, Sr. DR
Date of Hearing : 27.10.2011
Date of pronouncement: 28.10.2011.
ORDER
PER K.G. BANSAL : AM The only substantive ground taken in this appeal is that the ld. Director of Income-tax (E) erred in refusing the approval to the assessee u/s 80G of the Income-tax Act, 1961 ('the Act' for short). 1.1 The appeal was barred by limitation. Therefore, it was accompanied by an application for condonation of delay. It is mentioned that the order was received by the assessee on 28.03.2011, therefore, the appeal was to be filed on or before 27.05.2011. However, the appeal has actually been 2 ITA No.3946(Del)/2011 filed on 26.08.2011. Thus, the appeal is late by 91 days. The facts in this connection are that the assessee had paid appeal fees of Rs. 500/- on 19.04.2011. The counsel prepared the appeal on 25.04.2011. However, his clerk failed to file the appeal, leading to the delay. An affidavit dated 06.09.2011 from Shri Kundal Lal, employee of the counsel of the assessee has also been filed to the effect that the appeal was prepared in the office on 25.04.2011. Thereafter, the appeal papers were handed over to him. The appeal papers were misplaced, a fact which came to notice when the assessee wanted to make an application for early fixation of hearing. The delay is on account of inadvertence. The application was not opposed by the ld. DR. On considering the facts, it is seen that the delay is on account of mistake on the part of the employee of the counsel. In fact, the filing fees had been paid well within time, which shows the clear intention that the assessee wanted to file the appeal. In these facts, we are of the view that it is a fit case for condonation of delay. Accordingly, the delay is condoned.
2. Our attention has been drawn towards paragraph no. 4 of the impugned order, in which it has been mentioned that land has been allotted to the assessee-society by NOIDA for running the educational institution. 3 ITA No.3946(Del)/2011 Thus, the assessee has not started any charitable activity to achieve its goal and it is engaged only in the process of getting various approvals for this purpose. Therefore, it is not ascertainable whether the society will be able to run the school in near future for which it has been created. No request has also been made to any competent authority to permit the assessee to open any school nor any attempt has been made in any other manner to pursue the object. Therefore, relying on the decision in the case of Self Employees Service Trust Vs. CIT, 247 ITR 18 (Ker.) and Aman Shiv Mandir Trust (Regd.) Vs. CIT, 296 ITR 415, the approval has been refused.
2.1 The ld. counsel also drew our attention to the order of the Tribunal in this case passed on 18.05.2009 in ITA No. 3372(Del)/2008, a copy of which has been placed in the paper book on page nos. 154 to 158. In paragraph no. 4, it is mentioned that a piece of land had been allotted to the assessee in Institutional Area, Noida for running a senior secondary school. A lease deed has also been signed between the assessee and NOIDA. These documents were not produced before the DIT(E). These documents do indicate that steps are being taken for setting up the educational institution. It is further mentioned that the cases relied upon 4 ITA No.3946(Del)/2011 by the ld. DIT(Exemption) pertain to registration of an institution u/s 12A of the Act. In this case, registration has already been granted to the assessee on 30.04.2003, therefore, these cases may not be relevant for granting approval u/s 80G. In view of the additional evidence filed before the Tribunal, the matter was restored to the file of the DIT(E) for considering the whole of the evidence for the purpose of disposing off the application as per law. The impugned order has been passed in pursuance of this order.
2.2 The case of the ld. counsel is that even now, the ld. DIT(E) has relied on the decision relating to registration of an institution. In this case, the institution stands registered and the assessee has already moved towards setting up of the institution by taking land on lease. Further, there is nothing in law that approval must be taken from any authority for running the school or actually running the school before the grant of approval. Even in this connection, the admitted fact is that the assessee-society is in the process of getting approval. 2.3 In reply, the ld. DR relied on paragraph no. 4 of the order of the ld. DIT(E), which has already been summarized by us.
5 ITA No.3946(Del)/2011
3. We have considered the facts of the case and submissions made before us. The facts which emerge are that the assessee-society has been registered u/s 12AA on 30.04.2003. Its application for approval u/s 80G was earlier rejected by the ld. DIT(E) on 13.10.2008. However, that order did not find favour with the Tribunal as the matter was restored to his file to consider the matter in the light of provisions contained in section 80G and not u/s 12AA. He was also directed to take into consideration the evidence regarding the lease of land. However, it is found that he again relied on the decision u/s 12AA for granting approval u/s 80G. There is no evidence on record that the registration granted u/s 12AA has been withdrawn. Admittedly, the objects are charitable in nature and the society stands registered u/s 12AA. In these circumstances, there is nothing in law on the basis of which the ld. DIT(E) could refuse approval to the assessee. Therefore, his decision is set aside and he is directed to grant approval to the assessee.
4. In the result, the appeal is allowed.
Sd/- sd/-
(C.L. Sethi) (K.G.Bansal)
Judicial Member Accountant Member
SP Satia
6 ITA No.3946(Del)/2011
Copy of the order forwarded to:-
Haldiram Education Society, New Delhi.
DIT(E), New Delhi.
A.O.
CIT
The DR, ITAT, New Delhi. Assistant Registrar.