2024 (8) TMI 736

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.... of the case. 4. The learned AO erred in passing a rectification order under sec 154 of the Income Tax Act, 1961 by adding a sum of Rs. 42,85,977 to the returned income of the appellant without considering the facts and circumstances of the case. 5. The learned AO failed to appreciate the fact that the audit report in Form 10B had been obtained by the appellant but had been omitted to be filed with the return of income electronically. The learned AO erred in understanding the intention of the Legislature, that the exemption under sec 11 should not be denied merely because the audit report was not filed with the return. We wish to rely on the parity of the judgment held by the Honorable High Court of Calcutta in the case of CIT Vs. Hardeodas Agarwalla Trust 198 ITR 511. 6. The learned AO failed to consider the fact that the appellant had filed the Form 10B electronically even before the rectification order under sect 154 was passed in the case of the appellant. The learned AO ought to have provided an opportunity of being heard before making any addition, the learned AO ignored the fact that the appellant had rectified the mistake apparent on record by e-filing the Audit Re....

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....n of income electronically. He also did not consider that the assessee upon realising the mistake filed Form 10B before it preferred application u/s. 154. The Ld.AO however disallowed the exemption claimed u/s. 11. 2.2 Aggrieved by the order of the Ld.AO, assessee preferred appeal before the Ld.CIT(A). 2.3 The Ld.CIT(A) did not condone the delay in filing Form 10B and dismissed the appeal filed by the assessee against the order of CPC. 2.4 Aggrieved by the order of the Ld.CIT(A), assessee is in appeal before this Tribunal. 3. In the present facts, the assessee filed the audit report in Form 10B electronically though omitted to file along with the return of income. It is also submitted by the Ld.AR that the Form 10B was electronically filed before the rectification order was passed u/s. 154 of the Act. 3.1 It is also submitted that section 12A(1)(b) is merely directory in nature and therefore the deduction cannot be denied though the assessee has filed the form 10B belatedly. It is also submitted by the Ld.AR that the entire receipts of the assessee has been taxed without considering the expenditure which are not in conformity with the provisions of the Act. 3.2 The Ld.AR furt....

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....allow any deduction, allowance or relief claimed, such deduction, allowance or relief must be such as is, on the basis of the information available in the return, accounts or documents, prima facie inadmissible. The Income-tax Officer therefore, has no power to go beyond or behind the return, accounts or documents, either in allowing or in disallowing any such deduction, allowance or relief. 18. Under clause (iii) to the proviso, unless the return or the accompanying documents or accounts shows that the deduction claimed is prima facie inadmissible, such deduction cannot be disallowed at the intimation stage. If the Income-tax Officer is not satisfied with the claim for deduction, or if he requires any further information or any further evidence in that connection, he is bound to follow the procedure prescribed under section 143(2) of giving a notice to the assessee. It is not open to him to disallow such a claim under section 143(1)(a). 22. We are not here concerned with a case where, under any specific section of the Income-tax Act, a certain deduction or allowance cannot be granted unless certain specified documents are annexed to the return. In such a case, it may be poss....

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....ing paras that in present case Form 10B was furnished electronically and the assessee had preferred application u/s. 154. 8. The issue that thus needs to be addressed is that when electronically filed Form 10 was available on record, could the AO ignore such record to arrive at a finding that deduction claimed by the assessee u/s. 11 is not admissible and that the impugned adjustment could be made. As narrated in the discussion above, the assessee had filed Form 10 electronically before the application u/s. 154 was filed, which could have been considered by the Ld.AO u/s. 154 for necessary remedial action as per law. It is admitted fact that the CPC, Bengaluru made adjustment for non-filing of Form 10 along with original return of income. Subsequently, when the same was filed electronically, it could have considered the same u/s. 154 and was eligible for rectification. 9. We note that Hon'ble Tribunal at Mumbai has addressed similar issues in case of Pane Hindu Devalaya Mandal Vs DCIT (ITAT Mumbai), order dated 04.03.2020 for AY 2015-16, wherein it was observed that, while processing the return of income filed by the assessee, the CPC denied assessee's claim of exemption under se....