TaxTMI 
TaxTMI 
2023 (7) TMI 609
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...., Gandhidham on 20.05.2014. Invoking section 139(1) of the Act, Centralized Processing Centre (CPC), Bengaluru vide its communication dated 02-03-2016 intimated the assessee that the Audit Report in Form 10B is not filed alongwith the Return of Income as per Section 12A(1)(B) of the Act. The assessee was ensured to file the corrected Return, incorporating the details of such Audit, failing which the Return filed in ITR 7 will be treated as invalid. However the assessee has not responded to the above communication. Therefore the CPC vide its intimation u/s.143(1) dated 16-03-2016 denied the claim of exemption u/s. 11 to the assessee trust and demanded a tax of Rs. 18,35,160/-. It is thereafter the assessee uploaded Audit report in Form 10B by e-filing on 16.04.2019. 3. Aggrieved against the intimation order, the assessee filed an appeal before Ld. NFAC on 13.06.2020 with a delay of 1519 days. The Ld. NFAC condoned the delay in filing the appeal, however decided the appeal against the assessee on the ground that Form 10B was not filed along with the Return of Income. 4. Aggrieved against the same, the assessee is in appeal before us raising the following Grounds of Appeal: ....
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....f Shree Charitable Trust Vs. ITO (Exemption) in ITA No. 172/Ahd/2022 dated 05.07.2023 wherein it was held as follows: "....8. It is no more res integra that filing of Form 10B as required u/s. 12A are directory in nature, as such the Assessing Officer are not powerless to allow an assessee to file Audit Report, if not filed along with return, any time before completion of assessment. 8.1. The Hon'ble High Court of Gujarat in the case of Association of Indian Panel Board Manufacturer (cited supra) held as follows: "....6. The moot aspect thus centres around to the requirement of the availability of the audit report when the assessment was undertaken by the Assessing Officer even though the same may not have been filed along with the return of income. Filing of audit report is held to be substantive requirement but not the mode and stage of filing, which is procedural. Once the audit report in Form 12B is filed to be available with the Assessing Officer, before assessment proceedings take place, the requirement of law is satisfied. In that view, the Income Tax Tribunal was not justified in dismissing the appeal of the assessee. 6.1 The appellant as....
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.... 9. We find that the Hon'ble jurisdictional High Court in case of CIT vs. Xavier Kalavani Mandal (P.) Ltd. (supra) held that in order to claim exemption under section 11, the assessee can filed audit report in Form 10B even at later stage either before the Assessing Officer or before appellate authority by showing a sufficient cause. Further, Hon'ble jurisdictional High Court decision in case of Sarvodaya charitable Trust vs. ITO (Exemption) (supra) also held that where the assessee is a public charitable trust registered under section 12A of the Act and substantially satisfied condition for availing benefit of exemption as a charitable could not be denied exemption, the assessee merely on bar of limitation in furnishing audit report in Form 10B. Considering the aforesaid and legal discussion, we find that though the assessee has not filed any return of income at the time, however, it was available before the Id. CIT(A) as it was uploaded much before filing application under section 154. Therefore, respectfully following the decisions of Hon'ble jurisdictional High Court in case of CIT vs. Xavier Kalavani Mandal (P.) Ltd. (supra) and in Sarvodaya charitable Trust vs.....
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....ved that the approach of the authority in these type of cases should be equitable, balancing and judicious. Technically speaking, respondent No. 2 might be justified in denying the exemption under section 11 of the Act by rejecting such condonation application, but an assessee, which is a public charitable trust for past 30 years which substantially satisfies the conditions for availing such exemption, should not be denied the same merely on the bar of limitation especially when the legislature has conferred wide discretionary powers to condone such delay. Applying the said principle, the petition is allowed. The impugned order passed by respondent dated 12-3-2021 is quashed and aside. The impugned order of rectification under section 154 of the Act dated 25-1-2019 is also quashed and set aside. The application for condonation of delay filed by the petitioner before the respondent is allowed. 6. The respondent is now directed to process the return in accordance with law. It is noticed that no assessment is framed and only an intimation under section 143(1) of the Act was issued. No scrutiny could be carried out by the respondent since the audit report under section 10B was....