TaxTMI 
TaxTMI 
2024 (6) TMI 735
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.... adjustment / disallowance for "application of income" amounting to Rs. 32,98,068/- because the audit report for trust for AY 2018- 19 was not filed on or before the date of filing of the Income-tax return for AY 2018-19. The case of the assessee is that audit report in case of Shiksha Foundation for AY 2018-19 was duly signed by auditor as on 21st September, 2018, meaning thereby, audit report for AY 2018-19 was signed by auditor before the filing of Income-tax return (i.e. before 26th September, 2018) but, the said audit report was filed late by the auditor on the Income tax portal (i.e. on 20th January, 2020). However, Intimation Order u/s 143(1) of the Act was passed by Ld. AO on 8th February, 2020 i.e. after the filing of the audit report of trust by it's auditor under Form No. 10B as on 20th January, 2020. Thus, exemption of Rs. 32,98,068 claimed u/s 11 was not allowed by ADIT, CPC, Bengaluru while issuing the Intimation Order u/s 143(1) because the audit report of trust (i.e. Form 10B) had not been filed along with the return of the income. Due to this reason, an adjustment was made of Rs. 32,98,068/- while passing the Intimation Order u/s 143(1). 4. In appeal before Ld....
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....ssioner (Appeals) did not have any power under section 119(2)(b) to condone delay in filing Form 10B. Thus, Commissioner (Appeals) dismissed assessee's appeal holding that assessee had remedy before jurisdictional Commissioner Pr Commissioner/Director of Income-tax for condoning delay in fling Form 108 and claiming benefit of section 11. It was noted that assessee was well aware that there was a delay in filing Form 10B, however assessee seemed to have not made any application for condonation of delay in filing Form 10B before concerned P Commissioner/Commissioner/Director of Income-tax as provided under section 119(2). Therefore on the question of whether there was no infirmity in order passed by Commissioner (Appeals), the Hble Tribunal held "Yes" in Paras 6.2 and 6.3 of its order in favour of revenue. The above factual matrix and the decision rendered by the H'ble Tribunal in the case of Association of Indian Panelboard Manufacturer Deputy Commissioner of Income-tax [2022] 143 taxmann.com 418 (Ahmedabad -ITAT) (22-07-2022] perfectly to the instant case of our appellant. As per CBDT Circular No. 273, dated 3-6-1980, CBDT had authorized only the jurisdictional Commissioner/D....
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....me tax portal. The due date of filing of income tax return for assessment year 2018-19 was 26-09-2018. Notice under section 143 (1) (a) was issued on 19-12-2019. The audit report of the assessee trust was filed on the income tax portal by the auditors of the assessee trust on 20-01-2020. Intimation under section 143 (1) denying the claim of the application of income was issued by CPC, Bengaluru on 08-02-2020. Therefore, what can be seen is that as on the date on which the intimation/order under section 143(1) of the Act was passed by CPC, Bengaluru, the auditor of the assessee trust had already filed the audit report in form 10B, before such order/intimation under section 143 (1) of the Act was issued. From the facts placed on record before us, we see no deliberate/mala fide intention on the part of the assessee or it's auditor to file the audit report in form 10 B belatedly. 7.1 In the case of Shree Jain Swetamber Murtipujak Tapagachha Sangh v CIT 161 taxmann.com 114 (Bombay), the High Court held that where assessee-trust filed Form No. 10 beyond due date and assessee's auditor admitted to oversight that he did not consider provisions of Rule 17 and was under bona fide impression....
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....tation in furnishing audit report in Form no. 10B. 7.5 In the case of CIT v. Gujarat Oil & Allied Industries 201 ITR 325 (Gujarat), the High Court held that where an assessee could not file audit report along with return but filed it later before completion of assessment by ITO, he was entitled to deduction under section 80J of the Act. 7.6 Accordingly, in light of the above judicial precedents cited above and the assessee's set of facts, we are of the considered view that the claim of application of income cannot be denied to the assessee only on the ground that the assessee/the auditor of the assessee omitted to file form 10 B (auditor's report) along with return of income, when the same was submitted to the tax authorities before the order/intimation under section 143 (1) of the Act was issued. 8. In the result, the above ground of appeal of the assessee is allowed. 9. In addition to the above, the assessee has filed additional ground challenging the levy of fee amounting to Rs. 5000/- under section 234F of the Act, being penalty for delayed filing of income tax return. In this regard, the counsel for the assessee submitted that the assessee trust had filed its return of inc....