TaxTMI 
TaxTMI 
2023 (5) TMI 313
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....he judgment of the Bombay High Court. 4. Without prejudice to above even if is the registration is not consider the income should have been assessed not on the basis of gross receipt but on the basis of net income. 5. The assessee has received the sponsorship for a particular cause which was fulfilled and as such the same cannot be treated as an income of the assessee. 6. The assessee craves to amend, alter or delete any of the ground of appeal" 2. Heard the learned Representatives of both sides at length and case-records perused. 3. We proceed to adjudicate all grounds one by one in seriatim. Ground No. 1: 4. In this ground, the assessee claims that the Ld. CIT(A) has erred in not condoning the delay in filing first-appeal before him. 5. Ld. AR representing the assessee carried us to the impugned appeal-order dated 28.09.2022 passed by Ld. CIT(A) and demonstrated that in Para No. 4.9 of the same, the CIT(A) has rejected the condonation of delay of 107 days committed by assessee in filing first-appeal before him and thus taken a view to dismiss the appeal of assessee. But, however, in the subsequent Para No. 5 to 13 running over as many as 7 pages, the same CIT(A) has de....
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.... much available. Ld. AR has also produced a copy of the acknowledgement generated/downloaded from departmental database to prove this essential fact. With these submissions, Ld. AR prayed that the CIT(A) has erred in taking a view to dismiss the assessee's first-appeal; his decision must be reversed. 6. Per contra, Ld. DR representing the revenue placed a heavy reliance upon the order of Ld. CIT(A) and prayed to uphold his decision. 7. We have considered rival submissions of both sides. We have also perused the documents placed by assessee before us and observe that the assessee has filed a rectification-application u/s 154 on 20.03.2019 to AO. We further note from a reading of section 154(8) that the AO was having a time-limit of 6 months to pass order on such application of assessee. Therefore, the assessee was justified in waiting for about 5 months and certain days for the outcome of rectification and thereafter filing first-appeal when there was no response from AO. Thus, there was certainly a reasonable cause on the part of assessee in filing-appeal belatedly. Ld. DR does not have any reason to negate/contradict this. As a matter of fact, we also observe that although the C....
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....ssessee. Ld. AR submitted that the e-filing/uploading of audit-report is done by auditors and not by assessee; therefore the defect is not per se attributable to assessee. Ld. AR submitted that in any case, the defect is due to an inadvertent human error and the assessee should not be denied the legitimate exemption, when the assessee is genuinely doing charitable activities for the welfare of public and satisfying all conditions prescribed in income-tax law for being entitled to exemption. Ld. AR submitted that if the audit-report obtained by assessee on 08.06.2017 but filed on 03.04.2019 / 04.05.2019 is accepted, the assessee would be entitled to the benefit of exemption. Ld. AR placed a heavy reliance on the latest decision of ITAT in Savitri Foundation Vs. ITO, ITA No. 1925/Mum/2021 (AY 2018-19) order dated 01.08.2022 wherein the AO made processing of return u/s 143(1) denying exemption u/s 11 to assessee for the very same reason of non-uploading of audit report before filing of return but subsequently the assessee uploaded audit-report during the course of first-appeal; when the matter reached ITAT, the Mumbai Bench has allowed exemption to assessee. Ld. AR submitted that the ....
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....eport dated 19/10/2018 in the prescribed Form 10B at page 15 of the Paper Book. The assessee after receiving the intimation under section 143(1) of the Act uploaded the Audit Report on 18/04/2020 in First Appellate proceedings. 5. In my considered view non-filing of Audit Report in Form 10B along with Return of Income is merely a procedural defect which is rectifiable. If the Audit Report was available with the assessee at the time of filing of Return of Income and was not filed due to bonafide reasons the benefit of exemption under section 11 cannot be denied if otherwise assessee is eligible to claim the same. 6. The Hon'ble Bombay High Court in the case of CIT vs. Mumbai Metropolitan Regional Iron & Steel Market Committee (supra) has held that late filing of required documents would not disentitle the assessee from availing benefit of section 11 of the Act. Thus, in the facts of the case and in the light of decision of Hon'ble Bombay High Court, I deem it appropriate to restore the file back to Assessing Officer for de novo assessment after considering the audit report field by the assessee, in accordance with law. 7. In the result, impugned order is set aside and ....
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....vention specified under the provisions of the Act. In holding so we draw support and guidance from the judgment of Hon'ble Gujarat High Court in case of CIT vs. Gujarat Oil & Allied Industries reported in 201 ITR 325, the relevant extract of the judgment is reproduced as under: "In our view, the aforesaid reasoning of the Allahabad High Court and the Patna High Court would squarely apply to the facts of the present case. The provision about furnishing of the auditors' report along with the return has to be treated as a procedural provision, directory in nature, and its substantial compliance should suffice, meaning thereby that such report should be made available by the assessee to the Assessing Officer latest when the question of framing of assessment is taken up by the Income-tax Officer and when he applies his mind to the claim of the assessee and if by that time, the assessee has put his house in order and has furnished the report of the auditor for supporting the return, he can be said to have satisfied the requirement of section 80J(6A) of the Act." 12.2 In view of the above we hold that the assessee cannot be denied the benefit of exemption for which it is entitled ....