Hon'ble Subhash Chandra Nigam,J.
Heard Shri Siddharth Pathak, learned counsel for the petitioner and Shri Sambhu Chopra, learned Standing Counsel for the department.
By means of the present writ petition, the petitioner is challenged the order dated 25th March, 2008 and notice dated 19th February, 2009. The petition was filed on 30th April, 2009 and it came up for consideration on 4th May, 2009 before a Division Bench of this Court. The Division Bench has passed the following order:
"A preliminary objection has been raised by the learned counsel for the respondent that the petition against the order dated 25.3.2008 suffers from latches. Learned counsel for the petitioner has argued that the petitioner had accepted the order dated 25.3.2008, and is only aggrieved by the notice dated 19.2.2009. In the event the petitioner should have made the first prayer in the writ petition. This aspect may be examined by the learned counsel for the petitioner and it may be considered whether first prayer needs to be deleted in view of the argument advanced.
Put up day after tomorrow."
Instead of amending the relief, the petitioner has filed an application for condonation of delay on 30th June, 2009 explaining the delay in filing the writ petition. Learned counsel for the petitioner states that by means of the present writ petition, the petitioner is challenging the order dated 25rd March, 2008 and also notice dated 19th February, 2009 and the delay in filing the petition has been explained in the affidavit filed along with application for condonation of delay and, therefore, the writ petition may be entertained against 2 the order dated 25.03.2008.
Shri Sambhu Chopra, learned Standing Counsel submitted that on 4th May, 2009, learned counsel for the petitioner submitted that the petitioner had accepted the order dated 25.3.2008, and is only aggrieved by the notice dated 19.2.2009. Therefore, it is not open for the petitioner to resile with his submission. He further submitted that no proper reason has been given explaining the delay. He further submitted that the notice dated 19th February, 2009 is a simple notice asking the petitioner to give the reply and therefore, this Court should not entertain the writ petition.
We have considered the rival submissions of learned counsel for the parties.
On 4th May, 2009, learned counsel for the petitioner very categorically submitted before the Court that the petitioner had accepted the order dated 25.3.2008, and is only aggrieved by the notice dated 19.2.2009. Therefore, the petitioner cannot be permitted to resile with his admission made before the Court on 04th May, 2009. Further an affidavit has been filed in support of the application for condonation of delay, the following reasons have been given explaining the delay:
"1. That the deponent is the Secretary of petitioner "Society" and is fully acquainted with the facts of the case deposed to below.
2. That the aforesaid writ petition No. 1210 of 2009 challenging the order dated 25.03.2008 passed by the Chief Commissioner of Income-tax (Respondent No. 1) was received in the first week of April 2008 rejecting the application of the petitioner seeking notification under Section 10(23C)(vi) of the Income Tax Act, 1961. True copy of the order dated 25.03.2008 is enclosed as 'Annexure A' to this affidavit.
3. That after the receipt of the order dated 25.03.2008 the petitioner sought the opinion of its counsel Shri S.L. Srivastava, Advocate based at Varanasi who was representing the petitioner's case before the Respondent No.1 in the matter of obtaining the notification under Section 10(23C)(vi) of the Income Tax Act, 1961.
4. That Shri S.L. Srivastava gave assurance to the petitioner that the exemption under Section 12A read with Section 12AA will remain intact with the petitioner Society despite rejection of the application seeking notification under section 10(23C)(vi) as the exemption under Section 12A and notification under Section 10(23C)(vi) is on different footings.
5. That Shri S.L. Srivastava further assured the petitioner that the issue regarding notification under Section 10(23C)(vi) will be reconsidered during the assessment proceeding as the return under section 139(1) for assessment years 2007-08 and 2008-09 were pending for assessment before the assessing officer.
6. That till 21st February, 2009 no further communication was received by the petitioner from the Respondents that the exemption under section 12A is going to be cancelled. On receipt of the notice dated 19.02.2009 the petitioner came to know that the exemption enjoyed by the petitioner society is in jeopardy as the language of the notice is like that.
7. That a bare perusal of the said notice clearly reveals that the notice dated 19.02.2009 issued by the Respondent No. 2 on the behest of the Respondent no. 1. The contents of the notice dated 19.02.2009 is reproduced hereunder:-
"OFFICE OF THE COMMISSIONER OF INCOME TAX VARANASI F.No. CIT/Vns/12A/Cancellation/2008-09/2403 Dated:- 19.02.2009 To, M/s Sister of Our lady of Providence Education Society Shivpur, Varanasi.
Sub:- Proceeding for cancellation of certificate u/s 12AA of the I.T. Act, 1961, issued in the case of M/s Sister of Our lady of Providence Education Society Shivpur, Varanasi -Reg.
Please refer to the subject mentioned above.
Your application for grant of exemption u/s 10(23C) of the I T Act has been rejected by Hon'ble C.C.I.T. vide order F.No. CC-ALD/J- 7/10(23C)(vi)/2007-08/ dated 25.03.2008.
Considering the facts mentioned in above said order, I propose to cancel registration granted u/s 12A/12AA of the I T Act, 1961. You are given an opportunity to explain why registration u/s 12A/12AA granted, may not be cancelled.
The date of compliance is fixed on 04-03-2009.
Sd/-
(D.ROY CHAUDHURY) Commissioner of Income Tax Varanasi"
A copy of the notice dated 19.02.2009 is enclosed herewith as 'Annexure B' to this affidavit.
8. That after the receipt of the notice dated 19.02.2009 the petitioner Society again contacted its counsel for his opinion and he advised the petitioner society that since the notice dated 19.02.2009 is issued with the prejudice mind the petitioner society can challenge the order dated 25.03.2008 by way of writ petition before Hon'ble Allahabad High Court under Article 226 of the Constitution of India as the Respondent No. 2 issued the notice to the petitioner society at the end of almost 11 months after the order dated 25.03.2008 passed by the Respondent No. 1.
9. That there was no deliberate attempt on the petitioner society for delay in filing the writ petition and it was only due to due to lack of proper legal advice given to the petitioner Society.
10. That in view of the facts and circumstances stated hereinabove the delay of about one year and one month in filing the present writ petition, which is bonafide and non-deliberate on the part of the petitioner, the same may very kindly be condoned and the writ petition may be heard and be decided on merits as the petitioner Society has every hope of success in writ petition No. 1210 of 2009."
We are of the view that delay in filing the writ petition have not been properly explained. Fact stated in the affidavit shows that it is a case of gross negligence on the part of the petitioner.
On the aforesaid facts and circumstances of the case, we decline to entertain the writ petition after a lapse of one year and one month. So far as the notice dated 19th February, 2009 is concerned, it is a simple notice asking the petitioner to show cause as to why the registration granted under Section 12A/12AA of the Income Tax Act, 1961, may not be cancelled. It is a simple show cause notice to which the petitioner should reply to the Commissioner of Income Tax, Varanasi.
In view of the above, we decline to interfere in the matter. The writ petition fails and is accordingly dismissed.
Order Date :- 3.2.2010 MK/