TaxTMI 
TaxTMI 
2024 (3) TMI 827
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....n of delay with following prayers:- "Sub Submission 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 o....
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....epartmental portal, it has been noticed that during financial year 2014-15, the assessee has deposited huge cash amounting to 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. ....
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.... 5.4. In view of the facts of the case, it is submitted that the CIT(A) has already disposed off the appeal of the appellant, the appeal entered in ITBA becomes 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 re....
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....ncome filed under sub section (1) of section 139 of the Act. 11. Aggrieved from the order / intimation of AO CPC, the assessee preferred an appeal before the ld. CIT(A). Apropos to the grounds so raised the relevant 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 fili....
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....submissions made on merits of the case are also enclosed herewith with a prayer that the same may kindly be considered". (b) It is clearly seen from the Form 35 filed by the appellant for the assessment year under consideration that the appellant has mentioned 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 ....
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.... 5. In Scheduled Caste Co-op. Land Owning Society vs. Union of India & Ors AIR 1991 SC 730 the delay of three years was refused to be condoned on the ground that the parties had approached the Court after decision on merits was given in other cases. 6. Where the party comes forward with a false plea before 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 th....
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....above, the question referred to us is answered in the affirmative, that is, against the assessee and in favour of the department. There shall be no order as to costs in this reference. Reference answered in the affirmative.". 12. University of Delhi Vs Union of India & Ors, in Civil Appeal No. 9488 2019 vide Order dated 17/12 / 2019 the Hon'ble Supreme Court 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 vi....
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....that appellate trust or institution has not e-filed the Audit report in Form 10B along with the return u/s 139(1). The relevant provisions of section 12A are reproduced below: "12A. [Conditions for applicability of section 11 and 12] The provisions of section 11 and section 12 shall not apply in relation to the income of any trust or institution unless the following conditions are fulfilled, namely:- 1..... (b) 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 t....
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....b), the provisions of section 11 & 12 shall not apply in relation to income of any trust or institution unless Form 10B is filed before the specified date. In the instant case it is an admitted fact that Form 10B was not filed within the specified date and hence, on this account the appellant is not eligible for any exemption under section 11 & 12 of the Act. ME TAX DEPAR d. The Hon'ble Income Tax Appellate Tribunal (Ahmedabad)in the case of Association of Indian Panel board Manufacturer [2022] 143 taxmann.com 418 (Ahmedabad-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....
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....OF 2022) has applied strict construction to reverse the findings of the Hon'ble High Court ("HC") of Karnataka which had earlier allowed carry forward of such losses. The Hon'ble SC held that the requirement of filing a declaration within a timeline is "mandatory" in nature as per the language of the provision. It reiterated the age-old principle that a taxing statute should be read as it is and held that the exemption/ deduction provisions should be "strictly" and "literally" complied with and, therefore, a strict interpretation should be adopted. h. Support is also taken 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 c....
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....d (Judgment dated 11.07.2022 in the Civil Appeal No. 1449 OF 2022) the decisions quoted by the appellant are not acceptable. 5.2 The appellant has also relied on judicial decisions and claimed for allowance of expenditure of revenue nature. It may be mentioned here that during the course of appellate proceedings, appellant has furnished Income and Expenditure account From the same it is seen that income was on account of voluntary contribution and interest on saving bank account, however the expenses were not incurred for earning of above income and hence not allowable as per the provisions of section 57(iii) 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 assesse....
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.... of the Act. 1.1. The appellant had filed return of income on 15.10.2018 and subsequent a revised return was also filed on 31.10.2018. The appellant trust is duly registered u/s 12A of the Act, and had also got the accounts audited u/s 12A of the Act. 1.2. The CPC while processing the said return took the gross receipts and did not allowed the deduction of expenses incurred. The total receipts were Rs. 1,35,88,245/- against which the total expenses were Rs. 1,30,09,091/-, and net income was Rs. 5,79,153/- before depreciation. 1.3. The copy of the return of income submitted by the appellant is submitted herewith in which the details of audit report 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 financi....
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....ure of Rs. 4,85,564 from the gross receipt * Krushi Vibhag Karamchari Vrund Sahakari Pat Sanstha vs. ITO (2022) 219 DTR (Nag) (Trib) 161. "10. Now I advert to the requirements of section 80A(5), which stipulates that no deduction under other sections including 80P shall be allowed if the assessee fails to make such a claim in the return of income. Thus, there are twin conditions, viz., first, claiming deduction u/s 80P and second, claiming such deduction in the return of income. There is no dispute on the first condition, which has been satisfied in this case as the assessee did claim the deduction albeit during the course of assessment proceedings. The whole controversy revolves around 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, failin....
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....ections of s. 10A do not prescribe the precondition of filing of return within the specified due date under s. 139(1) to be eligible for the benefit of s. 10AA-It is not the case of the Revenue that the assessee has not fulfilled or violated any of the conditions mentioned in sub-ss. (2) and (4) of s. 10AA-A conditionality of filing a return within the specified due date under s. 139(1) in order to be entitled to a particular deduction/exemption ought to be made in the section itself and cannot be superimposed-It is not for the AO or the CIT(A) to rewrite the law and rule that exemption is not to be allowed since the return of income was not filed within the specified due date under s. 139(1)-Therefore, the denial of 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 revis....