TaxTMI 
TaxTMI 
TaxTMI 
2024 (3) TMI 827
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....bmission of appeal of Shree Shyam Manohar Gaushala, Jodhpur for A.Y. 2015-16- Application for condonation of delay. We are submitting herewith appeal in the case of above trust for A.Y. 2015-16 and it is submitted that the delay of about 37 days had already occurred in submission of appeal, which may kindly be condoned in the interest of justice and appeal submitted may kindly be entertained. The appellate order was passed by ld. Commissioner of Income NFAC, Delhi in the case of above trust on 26.9.2023 which was received by the assessee on 30.9.2023. The time limit for submission of appeal therefore expired on 30.11.2023 and thus the delay already occurred is of 37 days. The CIT(A), NFAC, had wrongly treated the quantum appeal as already decided while only the penalty appeal against order u/s 271(1)(b) was decided. The application for rectification was submitted on 3.10.2023 and further reminder application was submitted on 28.12.2023, but however no recalling of the earlier order or any rectification order has been made. The appellant was under a bonafide belief that the CIT(A) was pass rectification order but in the meantime lot of time had already lapsed, and in these cir....
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.... Rs. 55,82,000/- in his bank accounts maintained with Union Bank of India and return of income has not filed for the year under consideration. As the source of cash deposits remains unexplained, the assessee's case was reopened by invoking the provisions of section 147 of the Act for A.Y. 2015-16 after following due procedure u/s 148A of the Act by taking prior approval of the competent authority. Accordingly, notice u/s 148 of the Act was issued to the assessee on 29.03.2022 by the Office of the Income Tax Officer(Exemptions), Jodhpur was duly served upon the assessee's email ID registered with e-filing portal and requested to furnish the return of income which 30 days of receipt of the notice. 4.1 Subsequently, vide dated 18.01.2023 show cause notice was issued to the assesse for ex-parte assessment u/s 144 of the Act. In response the assessee has submitted reply on 04.02.2023 and furnished the audit report in form 10B along with financial statements, self-declaration affidavit and registration certificate with Rajasthan State Gaushala Federation. 4.2 On perusal of reply, it is seen that assessee has shown total receipts and expenses of Rs. 96,28,573/- and Rs. 81,87,058/- r....
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....mes infructuous. 6. In the result, infructuous entry of appeal is disposed and same is 'dismissed' for statistical purposes." 6. The ld. AR of the assessee vehemently argued that though the appeal decision talks about the levy of penalty but the grounds mentioned are on merits of the case of the assessee and in fact the appeal of the assessee is on merits which has not been decided but the decision has been rendered as if the issue of levy of penalty u/s. 271(1)(b) of the Act. Thus, the ld. CIT(A) has not decided the issue raised before him and therefore, the order is required to be quashed. 7. Per contra, the ld. DR heard who fairly admitted that it may a human error and the order be set aside to the file of the ld. CIT(A) to decide a fresh. 8. We have heard the rival contentions and perused the material placed on record. The bench noted that in this case while deciding the appeal of the assessee for the year under consideration i.e. A.Y 2015- 16. The ld. CIT(A) though the grounds of appeal has reproduced in para 3 is dealing of the appeal of the assessee on merits but while rendering the decision he has read the fact considering that the appeal is related to the levy....
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....levant finding of the ld. CIT(A) is reiterated here in below: 4. Decision I have considered the facts of the case, grounds of appeal and submissions made by the appellant. Accordingly, the grounds of appeal raised in this appeal are adjudicated as under: 4.1 Ground No. 1 (a) On perusal of the Form 35 of the appellant it is seen that the appellant mentioned the date of intimation order u/s 143(1) at Sr. No. 2(b) as 17/08/2023 while the date of service of order/notice of demand at Sr. No.2(c) has been mentioned as 17/08/2023. The appellant has mentioned at Sr. No. 14 of Form no. 35 that there is no delay in filing of appeal. However on perusal of intimation order u/s 143(1) it is seen that the intimation order u/s 143(1) has been passed on 26/09/2019 which was sent by email on the same day and the appellant has filed the appeal after a delay of 1065 days. Since the appellant had not submitted any explanation for condonation of delay in filing appeal a notice u/s 250 dated 4/12 / 2023 was issued to the appellant requesting to submit the explanation as under: "On perusal of the appeal filed by you in Form no. 35 dated 26/08/2023 for A.Y. 2018-19 it is seen that at Sr. No. 2(b....
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....d the date of intimation order u/s 143(1) as 17/8 / 2023 and the date of service of order/notice of demand also as 17/08/2023 which is not correct. From the intimation order u/s 143(1) it is seen that the order is dated 26/9 / 2019 which was sent by email on the same date to the appellant at email id [email protected] on the same day. Thus the appellant has filed the appeal after delay of 1065 days. The appellant has admitted that the column no. 2(b) in Form no. 35 the date of intimation order u/s 143(1) has been inadvertently mentioned as 17/8 / 2023 while the correct date of order is 26/09/2019. However, the appellant has reiterated that the intimation order u/s 143(1) dated 26/09/2019 was received by it on 17/8 / 2023 after a period of almost four years. The appellant has not given any explanation about the mode by which it had received the intimation order dated 26/9 / 2019 on 17/8 / 2023 after a period of almost four years. In this regard on perusal of the CPC portal it is seen that the communication was sent to the email id [email protected] on the date of the intimation order. The appellant has taken an alternate plea that the email address given does not bel....
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....efore the Court to get over the bar of limitation, the delay would be not liable to be condoned as held in Binod Bihari Singh vs. Union of India AIR 1993 SC 1245. 7. As has been observed by the Madras High Court in Krishna v. Chathappan ILR 13 Mad 269. It is however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a condition precedent for the exercise of the discretionary jurisdiction vested in the court by Section 5. If sufficient cause is not proved nothing further has to be done, the application for condoning delay has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally Introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration 8. In the case of Union of India v. Tata Yodogawa Ltd., [1988 (38) Excise Law Times 739 (SC)], this Court while granting some latitude to the Government in relation to condonation of dela....
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.... condone delay by holding that, MENT of has refused to condone delay by holding that "The entire explanation as noted above depicts the casual approach unmindful of the law of limitation despite being aware of the position of law. That apart when there is such a long delay and there is no proper explanation, laches would also come into play while noticing as to the manner in which a party has proceeded before filing an appeal. In the matter of condonation of delay and laches, the well accepted position is also that the accrued right of the opposite party cannot be lightly dealt with." 13. State Of Uttar Pradesh & Ors. Versus M/S Satish Chand Shivhare and Brothers SLP (Civil) No. 5301 of 2022; April 04, 2022: "If delay is not condoned, no adjudication on merits is warranted." In view of the above judicial pronouncements, the basic principle emerges that the delay should be bonafide and there should not be any negligence on the part of the appellant. Since the appellant has not given any justification for late filing of the appeal therefore the delay is not condoned and the appeal is dismissed. 1. Without prejudice to the above, the issue in this case is also adjudicated on....
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.... Where the total income of the trust or institution as computed under this Act without giving effect to the provisions of section 11 and section 12 exceeds maximum amount which is not chargeable to income-tax in any previous year, the accounts of the trust or institution for that year have been audited by an accountant as defined in the Explanation below sub-section (2) of 288 before the specified date referred to in section 44AB and the person in receipt of the income furnishes by that date the report of such audit in the prescribed form duly signed and verified by such accountant and setting forth such particulars as may be prescribed." The above provisions provide that the if the audit report is not filed by the institution by the specified date then the provisions of section 11 & 12 shall not apply to such trust or institution. b. The specified date referred in the above mentioned section is defined in the Explanation (ii) to section 44AB which is reproduced below: Section 44AB Explanation (ii) "specified date" in relation to the accounts of the assessee of the previous year relevant to an assessment year means the due date for furnishing of return of income under sub....
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....ad-ITATO [22-07-2022] has held as under: 'Section 119 of the Income-tax Act, 1961- Central Board of Direct Taxes- Instructions to subordinate authorities (Condonation of delay in filing Form No. 10B)- Assessment year 2018-19-Assessee, a charitable institution registered under section 12AA, claimed exemption under section 11- On filing original return of income, assessee was communicated by Assessing Officer that assessee had not filed Audit Report- Immediately thereafter, assessee filed Audit Report in Form 10B by uploading same in electronic mode- Central Processing Centre denied exemption under section 11 for want of submission of Form 10B. On appeal, Commissioner (Appeals) held that Form B shall be submitted electronically with effect from 1-4-2016 applicable for assessment year 2016- 17 and as per CBDT Circular No. 273 dated 3-6- 1970, CBDT had authorized jurisdictional Commissioner/Director of Income-tax to condone delay in filing Form 10B, and Commissioner (Appeals) did not have any power under section 119(2)(b) to condone delay in filing FormB. Thus, Commissioner (Appeals) dismissed assessee's appeal holding that assessee had remedy before jurisdictional Commissi....
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....from the decision in Arya Kshatriya Samaj V/s ITO in ITA No 175/PUN/2023 dated 23.03.2023 upheld the disallowance of exemption u/s 11 and 12 if return is filed late. The relevant para of the said decision is reproduced here below- *7. I have heard the Id. Sr. DR and perused the material on record. The CPC had denied the exemption of income u/s 11 solely on the ground that the return of income was not filed within the due date prescribed u/s 139(4A) of the Act as provided under the provisions of section 12A(ba) of the Act. There is no dispute that the return of income for the year under consideration was filed by the appellant society beyond the due date for filing the return of income u/s 139(4A) of the Act ie, on 31.10.2019. The provisions of Income Tax Act, 1961 had not conferred any discretion on the assessing authority or the appellant authority to condone the delay in filing the return of income. The provisions of section 12A(ba) provides that the exemption u/s 11 can be availed only if the return of income was filed in the manner prescribed under the provisions of section 139(4A) of the Act which in turn requires that an assessee claiming exemption of income u/s 11 to file ....
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.... of the Act. The onus was on appellant to establish the nexus of expenditure incurred towards earning of such income. The said nexus has not been proved by the appellant. In view of above, the submission of the appellant on this issue is not acceptable. 6. In the result, the appeal of the appellant is Dismissed." 12. Since, the appeal of the assessee was dismissed on account of delay as well as on merits, feeling dissatisfied the assessee filed the present appeal on the grounds as stated herein above. Apropos to the ground of delay the ld. AR of the assessee submitted that appeal of the assessee is filed in time the relevant submission made before the ld. CIT(A) is reproduced herein below : "The appellant respectfully begs to submit following facts and details for your honor's kind consideration In reference to your notice dated 4.12.2023, it is submitted that the date of order in Column 2(b) is inadvertently mentioned as 17.8.2023, while the correct date of order is 26.9.2019 which is rightly observed by your honour in the aforesaid notice. It is submitted that the intimation of the said order was received by the appellant on 17.8.2023, and therefore the date of receipt o....
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....port obtained by the appellant on 5.9.2018 is duly mentioned. Therefore from the return of income itself the fact of audit of the accounts is verifiable and the CPC was not justified in denying such benefit. In any case the gross receipts taken as income was not justified, and such order made by CPC u/s 143(1) is absolutely not justified and the income so determined may be deleted. 1.4. The appellant submits herewith copy of the return of income submitted for the year under consideration, the audited financial statements and the registration granted u/s 12A of the Act, and request that the benefit of registration may be granted to the appellant and the gross receipts taken as income may kindly be deleted. 1.5. It is submitted that in the processing of such returns, no such variation can be made. The ld. AO at the most could have issued the notice of defect, but such claim could not have been denied for want of the audit report. The fact of the audit was duly mentioned in the return of income, and in the summary assessment such denial of exemption was not permissible. It would be useful to draw your kind attention towards the following decisions. * Sanatan Dharam Mandir Sabha ....
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.... the second condition, which says that the claim should be made in the return of income. The assessee in the extant case did not file any return of income, but made a claim of the deduction in computation of income filed during the course of the assessment proceedings. The moot question is whether the requirement of making a claim in the return of income is a mandatory or a directory requirement. If it is held as mandatory, then the claim must be made in the return of income, failing which the benefit of deduction would be lost. Au contraire, if it is held as directory, then the claim made either in the return of ITA No.182/NAG/2019 Krushi Vibhag Karmchari Vrund Sah Pat Sanstha Maryadit income or in any manner before the conclusion of assessment proceedings, as is the case under consideration, would validate the entitlement. 11. The Hon'ble Supreme Court in CIT vs. G.M. Knitting Industries (P.) Ltd. (2015) 376 ITR 456 (SC) came across a situation in which the assessee claimed additional depreciation in Form 3AA but the Form was not furnished along with the return of income. Such Form was submitted during the course of assessment proceedings. The AO denied the claim on the gro....
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....exemption on the ground of not filing the return within the specified due date under s. 139(1) is not legally correct- Since the AO disallowed the claim of deduction under s. 10AA at the threshold, it needs to be examined whether the assessee has complied with all other conditions mandated under s. 10AA-Matter remanded * Capgemini Technology Services India Ltd. vs. DCIT (2022) 220 TTJ (Pune) 409 Exemption under s. 10AA-Allowability-Claim made in revised return accompanied by Form No. 56F-As per sub-s. (5) of s. 10A, the assessee is required to furnish the audit report in the prescribed form along with the return of income-There is no reference to the filing of such return under s. 139(1) or under s. 139(5)-Finance Act, 2020 has carried out an amendment to sub-s. (5) of s. 10A by providing that the report of the auditor in the prescribed form should be filed before the specified date referred to in s. 44AB, which, in turn, refers to s. 139(1)-Thus, for the period anterior to the amendment of s. 10A(5) carried out by the Finance Act, 2020, the only requirement was to furnish the audit report in the prescribed form along with the return of income-Such return of income may be under....