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TMI Blog2014 (9) TMI 959X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner. It is made clear that if it is found to have collected any capitation fees for admission of students, i.e., collection of any money over and above the prescribed fee fixed by the committee nominated by the State Government for admission of students the assessee is not entitled for registration under section 12AA and also not entitled for exemption under sections 11, 12 and 10(23C) of the Act. - Decided in favour of assessee for statistical purposes - I.T.A No. 75/Coch/2013, I.T.A No. 348/Coch/2013, I.T.A No. 221/Coch/2014 - - - Dated:- 12-9-2014 - Shri N.R.S. Ganesan and Shri Chandra Poojari, JJ. For the Appellant : Ms. Divya Ravindran For the Respondent : Shri M Anil Kumar, CIT / Smt. Latha V Kumar, Jr DR ORDER N. R. S. Ganesan (Judicial Member).- All the appeals of the assessee are directed against the different orders of various authorities. I. T. A. No. 348/Coch/2013 and I. T. A. No. 221/Coch/2014 relate to registration under section 12AA of the Act as charitable institution. I. T. A. No.75/ Coch/2013 is against the regular assessment made by the Assessing Officer as confirmed by the Commissioner of Income-tax (Appeals). Therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 011 in which the High Court permitted the assessee either to file a fresh application for registration under section 12AA or to seek appropriate remedy to restore the application, if permissible under the law. In compliance with the orders of the High Court the Commissioner reposted hearing in respect of the application filed on May 30, 2007 which was originally dismissed on September 26, 2007. However, the Commissioner rejected the application once again by an order dated October 24, 2011 on the ground that the registration under section 12AA was already granted on the basis of the application filed by the assessee on March 31, 2010. Therefore, the earlier application for registration becomes null and void. Against this order of the Commissioner dated October 24, 2011 the assessee filed appeal before this Tribunal in I. T. A. No. 348/Coch/2013. 4. Learned counsel further submitted that the assessee also filed a writ petition before the High Court in W. P.(C) No. 12755 of 2012 challenging the order of the Commissioner dated October 24, 2011. The High Court rejected the claim of the assessee on the ground that there is no provision in the Income-tax Act to restore an application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee on July 30, 2007. The Commissioner of Income-tax, Trivandrum rejected the same by an order dated July 26, 2007 since the assessee did not comply with details called for by the Commissioner to prove the genuineness of its activity. The assessee filed another application on November 30, 2007. The same was dismissed as withdrawn since the assessee was prosecuting another application for approval under section 10(23C) before the Chief Commissioner. Thereafter the assessee filed the third application on March31, 2010 which was also rejected on September 30, 2010 since the assessee failed to file relevant material/document to substantiate the genuineness of its activities. Thereafter the assessee filed the fourth application for registration under section 12AA on December 1, 2010. On the fourth application, the Commissioner granted registration on January 29, 2011 with effect from financial year 2010-11. According to the learned Departmental representative the appeal filed by the assessee in I. T. A. No.221/Coch/2014 is an afterthought. The assessee has challenged the orders before the High Court and the High Court rejected the claim of the assessee to restore the application. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vigilant enough in prosecuting the proceedings for approval under section 12AA of the Act. Of course, the assessee was knocking wrong doors by prosecuting the proceedings bona fidely. The question arises for consideration is when the assessee was prosecuting the proceedings bona fidely before the wrong forums whether the delay of 2353 days in filing the appeal could be condoned or not ? This Tribunal finds that the Madras High Court in the case CIT v. K. S. P. Shanmugavel Nadar [1985] 153 ITR 596 (Mad) had an occasion to consider an identical issue. The Madras High Court found that prosecuting a wrong remedy before the wrong forum is reasonable cause in not filing the appeal within the prescribed time limit. The Madras High Court found that bona fide prosecution of other remedies because of which the delay has occurred has to be taken into account. Accordingly, the Madras High Court condoned a delay of more than 20 years in filing the appeal. 9. In view of the above, this Tribunal is of the considered opinion that the assessee was prosecuting other remedies bonafidely before other forums and ultimately got succeeded in getting the registration before the Commissioner from the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that may be passed by the Commissioner either granting or rejecting the registration under section 12AA of the Act. Accordingly, the order of the lower authorities for the assessment year 2007-08 in I. T. A. No. 75/Coch/ 2013 is set aside and the entire issue raised in the appeal is remitted back to the file of the Assessing Officer. The Assessing Officer shall reconsider the issue afresh in the light of the order that may be passed by the Commissioner for registration under section 12AA of the Act and thereafter decide the same in accordance with law after giving reasonable opportunity to the assessee. It is made clear that if it is found to have collected any capitation fees for admission of students, i.e., collection of any money over and above the prescribed fee fixed by the committee nominated by the State Government for admission of students the assessee is not entitled for registration under section 12AA and also not entitled for exemption under sections 11, 12 and 10(23C) of the Act. 12. In the result, appeals in I. T. A. No. 75/Coch/2013 and I.T.A. No. 221/ Coch/2014 are allowed for statistical purposes and appeal in I.T.A. No. 384/ Coch/2013 is dismissed. The order ..... X X X X Extracts X X X X X X X X Extracts X X X X
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