ITAT directs tax officer to accept delayed Form 10B filing after finding condonation circulars ignored

ITAT Bangalore remitted the matter to AO after finding that available circulars regarding condonation of delay in filing Form 10B were not considered. The tribunal noted that CIT(A) incorrectly denied condonation by stating insufficient cause was shown by the assessee, contrary to facts. AO was directed to accept Form 10B on record, verify the section 11 exemption claim in accordance with law, and provide proper hearing opportunity to the assessee. The appeal was partly allowed for statistical purposes.

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Issues:
1. Delay in filing the appeal before the Ld.CIT(A) and the subsequent dismissal of the appeal.
2. Denial of exemption claimed by the assessee under section 11 of the Income-tax Act.
3. Consideration of circulars issued by CBDT in the decision-making process.
4. Remittance of the issue back to the Ld.AO for further consideration.

Issue 1: Delay in filing the appeal before the Ld.CIT(A) and the subsequent dismissal of the appeal:
The appellant filed an appeal against an order passed by the Ld.CIT(A), which was dismissed due to a delay of 364 days in filing the appeal. The Ld.CIT(A) refused to condone the delay, citing lack of "sufficient cause" as per the Income Tax Act. However, the Tribunal found that the delay was due to bonafide reasons as the appellant was pursuing an alternative remedy under the act. The Tribunal invoked the principles laid down by the Supreme Court and condoned the delay, noting that no malafide intentions could be attributed to the appellant.

Issue 2: Denial of exemption claimed by the assessee under section 11 of the Income-tax Act:
The appellant, a trust engaged in charitable activities, had filed its return of income with a shortfall in application of income. The denial of exemption claimed under section 11 was based on the belated filing of Form 10B. The Tribunal observed that there are precedents where the filing of Form 10B was considered directory rather than mandatory, especially when the audit report was available during the processing of the return. The Tribunal referred to various decisions supporting this view and remitted the issue back to the Ld.AO for further consideration, emphasizing the need for proper verification and granting the appellant an opportunity to be heard.

Issue 3: Consideration of circulars issued by CBDT in the decision-making process:
The appellant had relied on circulars issued by the CBDT, directing the admission of applications for condonation of delay in filing Form 10B for certain years. These circulars were not considered by the authorities who rejected the appellant's request for condonation of delay. The Tribunal noted that the circulars were available and could have justified the delay in filing Form 10B, which was not taken into account by the authorities. The Tribunal found that the failure to consider these circulars resulted in gross injustice to the appellant.

Issue 4: Remittance of the issue back to the Ld.AO for further consideration:
In the interest of justice, the Tribunal remitted the issue of denial of exemption claimed under section 11 back to the Ld.AO for reconsideration. The Ld.AO was directed to verify the form filed by the appellant and assess the exemption claimed in accordance with the law. The Tribunal emphasized the need for proper verification and granting the appellant a fair opportunity to present their case. The appeal was partly allowed for statistical purposes.

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