AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2023 (12) TMI 711
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....(A) has erred in confirming the action of Assessing Officer/CPC of taxing gross income as the total income without giving any deduction of expenses. 3. It is therefore prayed that the above addition made by the Assessing Officer and confirmed by CIT(A) may please be deleted. 4. The appellant craves leave to add or alter or delete any of the ground of appeal at the time of hearing before Your Honour." 3. Succinct facts qua the issue are that assessee before us is a trust registered u/s 12AA of the Act. The Trust was incorporated for the purpose of imparting pre-primary to higher secondary education. The assessee- trust filed the return of income for the year under consideration on 20.12.2021 declaring total income of "Nil" after claiming exemption of Rs. 3,30,07,028/- u/s 11 of the Act. In the intimation u/s 143(1) issued on 23.08.2022 by the CPC, the exemption of Rs. 3,30,07,028/-claimed u/s 11 of the Act, in the return of income was disallowed, due to non-filing of Form 10B prior to furnishing return of income. Further the voluntary contributions forming part of the corpus amounting to Rs. 1,50,000/- is also added to the total income. 4. Aggrieved by the order of CPC/Assessi....
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....12AA/12AB has not E-filed the Audit Report in Form 10B one month prior to the due date for furnishing return u/s 139(1). Hence the exemption claimed in Sr.No.2 [exemption claimed u/s 11(1)(d)] and Sr.No. 41i to 4viii of Part B-TI is not allowable in accordance with the provisions of Secetion-12A(1)(b) of the Income tax Act." 7. In response to the adjustment notice issued the assessee has stated that there was some technical glitch in the e-filing portal due to which Form 10B could not be assigned to the Chartered Accountant on the portal. Finally, assessee assigned Form 10BB to the Chartered Accountant, it was also stated that a grievance was filed by the assessee to resolve the issue of assigning Form 10B to the Chartered Accountant on the portal. The ld CIT(A) observed that Form 10BB is not the correct Form to be filed in this case, as assessee is registered u/s 12A/12AA of the Act. The correct Form to be uploaded is Form 10B, in the assessee`s case under consideration. Therefore, filing of this Form No.10BB is not relevant in the case of the assessee. The reason for the delay in filing Form 10B was stated by the assessee, as a technical issue faced by the e-filing portal. To r....
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....pg No.1 of paper book), (ii) Audited financial statements, vide pg-2 to 17 of paper book, (iii) Audit report in Form 10B obtained u/s 12A(b) attached at the time of filing Form 10BB, vide pg-12 to 21 of paper book, (iv) Proof of grievance raised on IT portal which was closed on 13.12.2021, vide pg-22 of paper book (v) acknowledgement of ITR along with computation of total income, vide pg-23 to 25 of paper book (vi) Audit report in Form 10BB obtained u/s 12A(b), vide pg-26 to 29 of paper book (vii) Intimation u/s 143(1)(a) dated 01.07.2022 and response made to intimation, vide pg. 30-31 of paper book, (viii) Audit report in Form 10B obtained u/s 12A(b) AY 22-23, vide pg-32 to 36 of paper book and (ix) Acknowledgement of ITR for AY 22-23 pg-37 of paper book. 11. Based on these above noted evidences, Ld. Counsel argued that it is a sufficient compliance, if the assessee filed the Form No. 10B during the assessment stage and for that ld Counsel relied on the following judgments: * CIT vs. Mayur Foundation 2274 ITR 562 (Guj) * Zenith Processing Mills vs. CIT [1996] 219 ITR 721 (Guj) * CIT vs. Gujarat Oil and Allied Industries (1993) 201 ITR 325 (Guj) * CIT vs. Web Commerce Pvt.....
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....idering the facts and circumstances, the delay in filing the Form No.10B should be condoned, especially when the assessee filed the Form No.10B during the assessment proceedings, for this reliance can be placed on the judgment of Coordinate Bench of ITAT, Puna in the case of Kokan Kala Shikshan Vikaas Sanstha, in ITA No. 645/PUN/2021, order dated 30/12/2022, wherein it was held as follows: "4. We have heard the rival contentions of both the parties; and subject to the provisions of rule 18 of "ITAT Rules", perused the material placed on record, case laws relied upon by the appellant as well the respondent and duly considered the facts of the case in the light of settled legal position forewarned to either parties. 5. We note that, the ITR for the impugned AY was filed on 13/07/2018 and notice calling the audit report u/s 143(1)(a) was served on 28/02/2019 according thereby 30 days to remove deficiency by filing audit report in Form No 10B, however in the absence of any such compliance from the appellant, ITR was finally processed on 26/06/2019 denying the exemption, which the Ld. FAA upheld quoting equi-reasons. We also note that, the assessee could not attend the communication....
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.... a registered charitable trust under section 12A of the Act and engaged in charitable activities for over 40 years. In the return of income for the assessment year 2018-19 assessee declared total income at Rs. 13,54,46,670/-. In the return it had shown business income of Rs. 13,54,46,670/- and voluntary contribution of Rs. 1,52,03,71,381/-. While processing the return, the CPC, Bangalore disallowed claim of exemption under section 11 of the Act, as audit report in Form No.10B was not e-filed along with return of income. Accordingly, in the intimation made u/s 143(1) of the Act the income was assessed at Rs. 1,65,58,18,047/- by making addition of Rs. 1,52,03,71,381/- to the declared income. This intimation was challenged by the assessee before the ld.CIT(A), who after detailed discussion and in the light of various judicial pronouncements on the issue of delayed submission of form No.10B, allowed claim of the assessee by observing that the impugned audit report was e-filed to AO in regular assessment proceedings, on 6.10.2018 and was available before the AO when he passed the assessment order under section 143(3) on 6.4.2021. Taking note of judicial precedents to the effect that fil....
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....appellate proceedings, and thereby the assessee has substantially complied with relevant provisions of the Act. The relevant findings of the ld.CIT(A) are as under: "(g) In the instant case the appellant/assessee is a charitable trust registered u/s 12A on 29.01.1980. Thus it is engaged in charitable activities for over 40 years. The audit report in Form 10B was e-filed on 06.10.2018 and was available before the Assessing Officer when he passed the assessment order under section 143(3) on 06.04.2021. The audit report is also available before the CIT(A) during the appellate proceedings. It has been unambiguously held by the jurisdictional Gujarat High Court [CIT v. Gujarat Oil and Allied Industries Ltd. [1993] 201 ITR 325 (Guj.)] that provisions regarding furnishing of audit report with the return have to be treated as a procedural proviso. It is directory in nature and its substantial compliance would suffice. The Hon'ble Court also took the view that the benefit of exemption should not be denied merely on account of delay in furnishing the audit report and it is permissible for the assessee to produce the audit report at a later stage, either before the AO or the appellate a....
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....urt has observed that furnishing of audit report along with return filed is to be treated as a procedural requirement. It is though mandatory in nature the substantial compliance is required to be made. In the case of Sarvodaya Charitable Trust (supra) the assessee had produced the audit report after processing the return under section 143(1). This Court in the said order has observed 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 appli....