TaxTMI 
TaxTMI 
2024 (9) TMI 292
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.... Tax Act, 1961 (For short "the Act") whereby the application filed by the petitioner to condone the delay in filing Form No. 10B for Assessment Year 2018-2019 is rejected. 5. Brief facts of the case are that the petitioner is a public charitable trust constituted under the Deed of Settlement dated 22.08.1974 which is registered under the Bombay Public Trust Act, 1950 (as applicable to the state of Gujarat) having registration no. A/744/Patan Dt. 22.10.2003. The Petitioner is also registered under section 12A (a) of the Act vide certificate dated 05.11.1976 issued by Commissioner of Income-tax Bombay City-4 Bombay. The petitioner trust derives income by way of voluntary contributions, corpus donation and other sources. 6. The Petitioner Trust is engaged mainly in public charitable and religious activities. The Petitioner trust had filed its return of income for A.Y.2018-2019 on 26.09.2018 declaring total income at Rs. Nil wherein inter-alia it had claimed voluntary contributions amounting to Rs. 2,47,01,720/- and corpus donation of Rs. 16,67,534/- against which the exemption under section 11 aggregating to Rs. 3,69,08,845/- (but limited to income) was claimed. 7. This return was ....
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....154 dated 04.07.2022, the petitioner submitted its reply dated 04.07.2022. 15. The respondent thereafter issued notice on 12.12.2022 stating that the order passed under section 154 on 31.12.2020 and 19.05.2022 were required to be amended as per the details given and asked the petitioner to respond on or before 20.12.2022. The petitioner submitted reply dated 21.12.2022. 16. It is the case of the petitioner that recently, the ITO (Exem.), Palanpur has passed order under section 154 read with section 143 (1) on 05.01.2023 disallowing the exemption under section 11 of Rs. 3,69,08,845/-. 17. Being dissatisfied with the impugned order passed by the Respondent rejecting the application for condonation of delay filed under section 119 (2) (b) of the Act, the petitioner has preferred the present petition. 18. Learned advocate Mr. S.N. Divatia for the petitioner submitted that the respondent Commissioner of Income Tax (Exemption) has failed to consider that the petitioner trust was prevented by a sufficient cause from filing Form No. 10B within the stipulated time which was explained in the application dated 13.09.2021 filed by the petitioner to the effect that the delay had occasioned ....
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.... Form No.10B along with the return filed. In the decision of this Court in Sarvodaya Charitable Trust vs. Income Tax Officer (Exemption), this Court 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 vs. Income Tax Officer (Exemption) 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 ....
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....o the parties by disposing of the matters on the merits. The expression 'genuine" has received a liberal meaning in view of the law laid down by the Apex Court referred to hereinabove and while considering this aspect, the authorities are expected to bear in mind that ordinarily the applicant applying for condonation of delay does not stand to benefit by lodging its claim late. Refusing to condone the delay can result in a meritorious matter being thrown out at the very threshold an cause of justice being defeated. When substantial justice and technical justice are pitted against each other, the cause of substantial justice deserves to be preferred for the other side cannot claim to have a vested right in injustice being done because of non-deliberate delay. There is no presumption that delay is occasioned deliberately or on account of culpable negligence or on account of mala fides. A litigant does not stand to benefit by resorting to delay in fact he runs a serious risk." 27. It was further submitted that in case of Bombay Mercantile Co-op Bank Ltd. reported in 332 ITR 287 (Bom.) Bombay High Court has held that in the matter of condonation of delay, highly pendantic approach....
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....was not serious regarding his application to condone the delay. 32. It was submitted that though the petitioner had obtained audit report on 28.08.2018 in Form 10B, same was filed on 30.10.2018 and the delay in filing Form 10B was not explained by the petitioner with regard to the genuine hardship as per the provisions of section 119 (2) (b) of the Act. 33. Having heard the learned advocates for the respective parties and considering the facts of the case, it is not in dispute that the petitioner has explained in detail the cause for late filing of Form 10B. 34. It also emerges from the record that the petitioner was under an impression that the delay was condoned however, only when the order under section 154 of the Act was proposed by the Assessing Officer, pursuant to the rejection of the application of the petitioner to condone delay under section 119 (2) (b) of the Act by disallowing the amount applied for charitable purpose under section 11 of the Act amounting to Rs. 3,69,08,845/- and thereafter the petitioner has preferred this petition. The petitioner has also placed on record the audited balance sheet dated 27.08.2021. It is also not in dispute that that the petitioner....