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TMI Blog2020 (8) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... hul K. Patel, AR For the Revenue : Shri Virendra Ojha, CIT-DR ORDER PER RAJPAL YADAV, VICE-PRESIDENT: Revenue is in appeal against separate orders of the ld.CIT(A)-9, Ahmedabad dated 27.4.2017 passed for the Asstt.Years 2009-10 and 2010-11 respectively. On receipt of notice in Revenue s appeals, the assessee has filed cross objection bearing CO No.5 and 6/Ahd/2019. For the sake of convenience, we dispose of all appeals by this common order. 2. Registry has pointed out that the COs. filed by the assessees are time barred by 212 days. In order to explain the delay in filing the cross objections, the assessee has filed application as well as affidavits of Shri Shantilal Odhavjibhai Patel, Accounts Officer of the assessee-authority. The application of the assessee read as under: The above-named assessee is a Trust engaged in Urban Development activity as per the Government Regulations. The assessee is getting the exemption u/s 11 of the Act since years. Even in the year under consideration, the assessee was granted the exemption u/s 11 in the original assessment framed u/s 143(3) of the Act. However, later on the assessment was re-opened u/s 147 of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, if it is satisfied that there was a sufficient cause for not presenting it within that period. This expression sufficient cause employed in the section has also been used identically in sub-section 3 of section 249 of Income Tax Act, which provides powers to the ld.Commissioner to condone the delay in filing the appeal before the Commissioner. Similarly, it has been used in section 5 of Indian Limitation Act, 1963. Whenever interpretation and construction of this expression has fallen for consideration before Hon ble High Court as well as before the Hon ble Supreme Court, then, Hon ble Court were unanimous in their conclusion that this expression is to be used liberally. We may make reference to the following observations of the Hon ble Supreme court from the decision in the case of Collector Land Acquisition Vs. Mst. Katiji Others, 1987 AIR 1353: 1. Ordinarily a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from putting forth his cause. There is no presumption that delay in approaching the court is always deliberate. This Court has held that the words sufficient cause under Section 5 of the Limitation Act should receive a liberal construction so as to advance substantial justice vide Shakuntala Devi lain Vs. Kuntal Kumari [AIR 1969 SC 575] and State of West Bengal Vs. The Administrator, Howrah Municipality [AIR 1972 SC 749]. It must be remembered that in every case of delay there can be some lapse on the part of the litigant concerned. That alone is not enough to turn down his plea and to shut the door against him. If the explanation does not smack of mala fides or it is not put forth as part of a dilatory strategy the court must show utmost consideration to the suitor. But when there is reasonable ground to think that the delay was occasioned by the party deliberately to gain time then the court should lean against acceptance of the explanation. While condoning delay the Could should not forget the opposite party altogether. It must be borne in mind that he is a looser and he too would have incurred quiet a large litigation expenses. It would be a salutary guideline that when court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 09 declaring income at Rs.NIL. The said return was finalized under section 143(3) of the Income Tax Act by accepting the returned income. Thereafter, AO observed that nature of work carried out by the assessee fall out of the purview of amended provision of section 2(15) of the Act. He served a notice under section 148 of the Act on 28.3.2014 upon the assessee for reopening of the assessment for the reasons that since activities of the assessee falls outside the scope of the section 2(15) of the Act, its activities cannot be said to be charitable , and would not be eligible for any exemption under section 11 of the Act. The reasons recorded by the AO for issuance of notice dated 28.3.2014 reads as under: REASONS RECORDED FOR ISSUE OF NOTICE U/S. 148 OF THE I.T. ACT, 1961 The assessee AOP, Gandhinagar Urban Development Authority filed its return of income for A.Y. 2010-11 on 05.10.2010 declaring total income of NIL. The case was finalized u/s 143(3) on 15.03.2013 accepting the returned income. The assessee is engaged in development of urban areas m Gandhinagar, which is advancement of objects of public utility. Scrutiny of the assessment records revealed that the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terial to come to a form a belief that the income has escaped the assessment. The ld.AO was in possession of all the information with regard to the activities of the assessee viz. details of its activities, objects of the assessee, nature of services rendered and fees received by the assessee, and copies of final accounts. The AO was merely trying to review of his own order rather than reassessment of its income of the basis of any material, which was not permissible in law. Assessee has furnished all the necessary details and books of accounts fully and truly during the assessment proceedings, and there was no reason to hold that income of the assessee has been escaped so as to valid reassessment proceedings under section 147 of the Act. It was further contended that merely due to change of opinion on the part of the AO, original assessment cannot be reopened. The ld.CIT(A) after going through the explanation of the assessee and all material on record held that the reassessment order was based on the material available to the AO during the original assessment. No fresh material was with the AO so as to attract the provisions of section 147/148 of the Act, and that the re-assessmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in the possession of the AO. On going through the record and the orders of the AO it is clear that the assessment was reopened merely on the basis of same set of facts, which were already available on record. Therefore, the ld.CIT(A) has rightly held that action of the AO in reopening of the assessment is wrong and null and void. We do not any infirmity in the order of the ld.CIT(A) on this issue, which is upheld. 13. As far as facts and circumstances for the Asstt.Year 2010-11 are concerned, they are identical. Similar set of reasons are recorded by the AO. Copy of which is available on page no.7 of the paper book filed by the assessee along with COs. We have perused the reasons recorded by the AO and we are of the view that these are verbatim same as that of the Asstt.Year 2009-10. The finding of the CIT(A) is also identical in the Asstt.Year 2010-11. Thus, considering parity of all the facts in the reasons as well as finding of the ld.CIT(A), we do not wish to reproduce the reasons for the sake of brevity and repetition. Following our finding for the Asstt.Year 2009-10 (supra), we do not find any merit in the appeal of the Revenue for the Asstt.Year 2010-11 also. 14. So ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment charges, development charges which was I.T.A No. 3621/Ahd/2015 A.Y. 2011-12 Page No 3 Gandhinagar Urban Development Authority vs. DCIT in the nature of advancement of general public utility. The assessing officer has stated that assessee being urban development authority charges various types of fees from the public for providing certain amenities like roads, bridges etc. which was recovered from the beneficiaries who get benefit out of development of such common infrastructure. The assessing officer concluded that assessee's activities were out of the purview of provisions of section 2(15) of the act, therefore, its income was calculated as a normal business income and no deduction u/s. 11 and 12 were allowed to it. 4. Aggrieved assessee has filed appeal before the ld. CIT(A). The ld. CIT(A) has dismissed the appeal of the assessee. 5. During the course of appellate proceedings before us, the ld. counsel has contended that Co-ordinate Bench of the ITAT Ahmedabad has adjudicated the identical issue on similar fact in the case of the Vodadara Urban Development Authority Vs. ITO Vide ITA No. 2751/Ahd/2014 dated 28-01-2019 in favour of the assessee, after following ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the total area covered under the Town Planning Scheme) was required to be used only for the purpose to carry out the object and purpose of the Town Planning Act and to meet the expenditure of providing general utility service to the public such as electricity, road, drainage, water etc. and the entire control was with the State government and accounts were also subjected to audit and there was no element of profiteering at all. The activities of the assessee could not be said to be in the nature of trade, commerce and business and therefore, the proviso to Section 2(15) of the Act was not applicable so far as the assessee was concerned. Therefore, the assessee was entitled to exemption under section 11. Apart from that CIT-vs.-Gujarat Industrial Development Corporation, wherein it was held as follows: Section 2(15), read with section 11, of the Income-tax Act, 1961 - Charitable purpose (Objects of general public utility) - Assessment year 2009-10 - Whether where assessee - corporation was constituted under Gujarat Industrial Development Act, 1962, for purpose of securing and assisting rapid and orderly establishment and organization of industrial areas and Industrial es ..... X X X X Extracts X X X X X X X X Extracts X X X X
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