TaxTMI 
TaxTMI 
TaxTMI 
2023 (8) TMI 1336
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.... time and the learned CIT(A) erred in upholding the same although the said expenses were exclusively incurred for the purposes of generating revenue from running of educational institutions. (2) That on the facts of the case and in law, the learned CPC erred in not allowing the statutory exemption of Rs. 93,31,921/-, being 15% of the gross receipts u/s 11(1 )(a)of the Act on the ground that the return of income and Form 10B was not filed by the assessee on time and the learned CIT(A) erred in upholding the same. (3) That on facts and in circumstances of the case, the learned CPC and CIT(A) failed to appreciate the law that income derived from the trust property has to be computed on commercial principles by virtue of Circular No. 5-P(LXX-6) of 1968, dated 19-6-1968. (4) That on facts and in circumstances of the case, the learned CPC and CIT(A) failed to appreciate the law that income derived from the trust property has to be computed on commercial principles by virtue of Circular No. 5-P(LXX-6) of 1968, dated 19-6-1968. (5) That on the facts and circumstances of the case, the delay in filing the return of income and Form 10B was due to fire break out in the office of the so....
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.... office premises at Trust House, 7th Floor, 32A, Chittaranjan Avenue, Kolkata-700012 and most of the original office records, files, documents and computer hard disks were burnt in the fire. Besides due to outbreak of the pandemic COVID-19 virus and severe disruption in the normal working conditions, it became very difficult for the assessee-society to consolidate the receipts and payments of these educational institutions, which contributed delay in finalizing the books of accounts, which occurred delay in filing the return of income as well as Form 10B beyond the due date as mentioned under the Act. 6. The ld. A.R. vehemently submitted before the Bench that the issue raised by the assessee in the additional ground of appeal is qua the jurisdiction of the ld. Assessing Officer, CPC to make any addition/adjustment to the returned income unless intimation is given to the assessee for such adjustment either in writing or through electronic mode pursuant to the 1st proviso to section 143(1) of the Act, the ld. A.R. submitted that since the facts are available on record and no further verification of fact is required, the same may kindly be admitted for adjudication. Todefence his arg....
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.... ld. Assessing Officer, CPC has not followed the mandate of first proviso of section 143(1)(a) of the Act and consequently , the order passed under section 143(1) of the Act is not as per the mandate of provisions of the Act and has to be quashed. The case of the assessee finds force from the decision dated 27th April, 2022 of the Tribunal , Ahmedabad Bench in the case of Arham Pumps in ITA No. 206/AHD/1989. The operative part of the order is extracted below:- 7. On going through the above section and proviso attached therein, the total income or loss shall be computed after making following adjustment mainly of any arithmetical error in the return. Incorrect claim, if such incorrect claim is apparent from any information in the return, etc. Thus, it is clear that a return can be processed u/s. 143(1) by making adjustments on six types of adjustments only. The first proviso to section I43(l)(a) make it very clear that no such adjustment shall be made unless an intimation is given to the assessee of such adjustment either in writing or in electronic mode. Apparently in the case of the assessee, no intimation had been given to the assessee for making any adjustment or disallowance ....
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....he Trust and also Rs. 93,31,921/- being exemption u/s 11(1)(a) of the Act by ignoring the fact that the assessee has filed the return of income and Form 10B on time, whereas the ld. Assessing Officer has held that the income tax return and Form 10B were filed late. 12. The facts in brief are that the facts have already discussed by us in the additional ground. The ld. Assessing Officer, CPC has rejected the capital expenditure of Rs. 64,52,436/- and revenue expenditure of Rs. 5,52,52,167/- on the ground that the returned income as well as form 10B was filed after the due date under the Act. The ld. A.R. vehemently argued that the return of income as well as Form 10B was filed in time. As due to COVID pandemic outbreak in the country, the Hon'ble Apex Court vide its order dated 10.01.2022 extended the period of limitation for filing the return of income from 15.03.2020 to 28.02.2022 and the said period is to be excluded for computing the period of limitation. The ld. A.R. stated that the return of income filed on 31.03.2021, which was within the limitation period and so that the Form 10B was filed on 30.03.2021. The ld. A.R. also referred to the Board Circular F. No. 173/193/2019-I....
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.....2021 by the CPC. 4.1 The appellant placed reliance on the Miscellaneous Application filed before the Hon'ble Supreme Court for extending the period upto 28.02.2022 in respect of petitions /applications/suits /appeal/all other quasi-judicial proceedings under the general law of limitation or under any special laws. This order relates to the extension of time limit in respect of proceedings pending before the appellate forum and the extension of due date for filing the return of income is prescribed by the Board and the said order is not applicable to the facts of this case. 4.2. Before considering the position of law with regard to Sec. 10B, the provisions of Sec.12A(1 )(ba) which was inserted with effect from Finance Act 2017 shall be analyzed. According to Sec. 12A(1)(ba), "the person in receipt of the income has furnished the return of income for the previous year in accordance with the provisions of sub-section (4A) of section 139, within the time allowed under that section. " The above provision was subsequently clarified by the Board vide its Circular F.No. 173/193/2019-ITA-l dated: 23 April, 2019 to clear that return of Income-fiied unfle7-Sec.139 algo incTu5e-Sec. 1....
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....ction (4A) of section 139 of the Income-tax Act, if the total income without giving effect to the provisions of sections 11 and 12 exceeds the maximum amount which is not chargeable to income-tax. Amendment to section 12A of the Income-tax has been made so as to provide for additional condition that the person in receipt of the income chargeable to income-tax shall furnish the return of income within the time allowed under section 139 of the Income-tax Act. " 4. Thus, for a trust registered u/s 12AA of the Act to avail the benefit of exemption u/s 11 shall inter-alia file its return of income within the time allowed u/s 139 oi the Act. But this Circular clarifies the position of law with regard to filing of return of income under Sec. 139 of the Act. 4.3. Now, the next point for consideration is whether the audit report in form 10B was submitted before the due date for filing the return of income. As per Rule 17B 'the report of audit of accounts of a trust or institution which is required to be furnished under clause (b) of Sec 12A shall be in Form 10B and audit report shall be submitted electronically before the due date of filing the return of income. In this case, the ....
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....the Commissioners of Income-tax are hereby authorized to admit such belated applications of condonation of delay u/s 119(2) of the Act and decide on merits." 4.6. Hence, the appellant is directed to seek the necessary remedy by filing a petition for condonation of delay under Sec 119(2)(b) of the Act before the Competent Authority i.e., Commissioner of Income-tax (Exemptions). 5. In the result, the appeal is "Dismissed". 14. The ld. A.R., therefore, prayed that the order passed by the ld. CIT(Appeals) upholding the order of ld. Assessing Officer on the issue that the returned income as well as Form 10B were filed before the due date is erroneous and factually incorrect and against the ratio laid down by the Hon'ble Apex Court dated 10.01.2022. The ld AR submitted that time for filing the return of income u/s 139(1) of the Act was extended for A.Y. 202021 to 15.02.2021. The ld AR further stated that the in view of the Covid 19 outbreak, the Hon'ble Apex Court has extended the limitation in respect of all the judicial and quashi judicial proceedings. The ld AR stated that the Hon'ble Apex Court has ruled that where the limitation would have expired during the period commencing f....