TaxTMI 
TaxTMI 
2024 (6) TMI 1403
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....ion of the condonation application reads as follows: * The CIT(A)NFAC passed an order on 03.08.2022, under section 250 of the Act, dismissing the Appeal filed the Petitioner. * The Petitioner filed an application for condonation of delay in filing audit report under section 119(2)(b) of the Income Tax Act, before the CBDT through speed post on 26.08.2020 vide acknowledgement vide Ack No. EK078008789IN. * The CBDT issued circular 16/2022 dated 19th July 2022 delegating the power to condone delay in filing Form 10B beyond 365 days to PCCIT or CCIT. * Therefore, the Petitioner filed a condonation Petition on 13.03.2023 before the Commissioner of Income Tax (Exemptions) Bangalore, requesting to forward the application to Principal Chief Commissioner of Income Tax (Exemptions) New Delhi as the delay was beyond 365 days for AY 2018-2019. * The Petitioner was hopeful that PCCIT would condone the delay in filing Form 10B. Also delay has been condoned in similar circumstances in case of other Trusts. * The Learned Principal Commissioner of Income Tax, (Exemptions) Delhi, passed an order dated 22.09.2023, under section 119(2)(b) of the Ac....
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....re 03.10.2022. However, the same has been filed only on 11.12.2023. Even before the CIT(A)'s Order, assessee had filed an application for condonation of delay in filing the audit report under section 119(2)(b) of the Act before the CBDT on 26.08.2020. In view of the Board's Circular No.16/2022 dated 19.07.2022 which had delegated the power to condone the delay in filing Form 10B beyond 365 days before PCCIT or CCIT, assessee had filed a condonation application on 13.03.2023 before the CIT(E), Bengaluru, requesting to forward the application to PCCIT, New Delhi, as the delay in filing the audit report was beyond 365 days for the relevant Assessment Year. It is submitted that petitioner was hopeful that PCCIT would condone the delay in filing Form 10B since in similar circumstances in the case of other Trusts, he had condoned the delay. However, PCCIT passed an order on 22.09.2023 rejecting the condonation application filed by the assessee. Post the rejection of application, assessee filed the present appeal before the Tribunal on 11.12.2023. 5. The issue raised in the appeal before the Tribunal is with regard to the denial of section 11 of the Act on account of delay in filing th....
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....Act towards amount set apart for specified objects). Form 10 statement under section 11(2) of the Act was filed electronically on 27.09.2018. Subsequently, the assessee Trust filed revised return on 02.01.2019. It is stated that revised return was filed by the assessee presuming it had not given the details of registration under section 12A of the Act in the original return filed. 9. An intimation under section 143(1) of the Act was passed by the CPC on 31.01.2020. In the said intimation, exemption claimed under section 11 of the Act was denied on the ground that (i) statement in Form 10 was not filed electronically (ii) return of income was not filed within the due date prescribed and (iii) audit report has not been e-filed before the filing of the return. It is to be noted that in the intimation issued under section 143(1) of the Act, the original return filed on 29.09.2018 was not processed, instead the revised return was treated as original return in the intimation passed under section 143(1) of the Act. 10. Aggrieved by the intimation issued under section 143(1) of the Act, assessee preferred an appeal before First Appellate Authority. The CIT(A) passed the impugned orde....
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....of case laws. In Paper Book-1, assessee has enclosed audited financial statement for the Assessment Year 2018-19, copy of the acknowledgment of the original return filed, statement of computation, copy of the submissions made, copy of the condonation application before the PCCIT for delay in filing the audit report, copy of Form 10 filed under section 11(2) of the Act on 27.09.2018, copy of the revised return, copy of the audit report in Form 10B filed on 13.11.2003, etc. 14. The learned AR submitted that there is factual error in the Order of the CIT(A). The learned AR by referring to the Paper Book-1 submitted that assessee had submitted the original return well within the due date prescribed and therefore the CIT(A) has erred in concluding that the return of income has not been filed within the due date. It was further contended by the learned AR that Form 10 has also been electronically filed within the prescribed due date i.e., on 27.09.2018. As regards the delay in filing the audit report, the learned AR submitted that the same is directory in nature and not a mandatory requirement and thus denying the exemption under section 11 of the Act is bad in law. In this context, t....
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....Court judgment in the case of Wipro Ltd., (supra) and observed that the said judgment does not affect the assessee's claim of exemption under section 11 r.w.s. 12A(1)(b) of the Act which has nothing to do with application under section 10B of the Act. 18. We have heard the rival submissions and perused the material on record. There are some factual errors in the order of the CIT(A). In the impugned order of the CIT(A) at page 13, it has been stated that the return of income was not filed by the assessee within the prescribed due date. In this regard, we notice that the original return of income was filed on 28.09.2018. The acknowledgment and original return of income filed has been placed on record from pages 55-85 of the Paper Book submitted. Thus, the statement of the CIT(A) that return of income was not filed on time is incorrect. So non-filing of return within the due date prescribed cannot be a ground for denying the claim of exemption under section 11 of the Act. Further, we notice at page 14 of the CIT(A)'s Order, it has been stated that Form 10 is not filed before filing the return of income. This conclusion of the CIT(A) is contrary to the facts on record (refer Pages 1....
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....n 143(1) of the Act. Thus, the conditions for claiming exemption under section 11 was satisfied. ii. Although the requirement of furnishing report was mandatory, filing thereof is a procedural aspect. iii. Even though the Form 10B was filed at a later stage, when it was part of the record of the Assessing Officer in course of the processing of the return of income, the Assessing Officer could not have denied the exemption claimed by the assessee under sections 11(1) and 11(2) on the ground that the audit report was not filed. iv. The remedy under section 1192(b) of the Act is only additional remedy for the assessee, which could not be said to be compulsorily resorted to by the assessee and it cannot take away the appellate remedy. v. The Tribunal misdirected itself in yet another way when it observed that the Finance Act, 2015 with effect from 1-4-2016, that is from AY 2016-17 changed the legal position. There is no such change which could be said to have altered the legal position. The only change is with regard to compulsory filing of audit report in Form 10B in electronically form which is made mandatory under Rule 12 (2) of the Income-tax Rul....
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....nually before passing of Intimation under Section 143(1) of the Act. The assessee in that case, filed Form 10B for the first time along with rectification application under section 154. However, in the instant case, the Appellant has filed audit report in Form 10B before the passing of intimation under section 143(1). ii. In the case of Navodaya Educational Trust V. DCIT (supra), the assessee did not argue that filing of Form 10B, is only procedural in nature and not a mandatory requirement for claiming exemption under section 11. There is no discussion on this aspect in the Tribunal Order. iii. In the case of Navodaya Educational Trust V. DCIT (supra), the Assessee had filed appeal against the order under section 154, which only deals with 'mistake apparent from record'. In the instant case, the appeal is filed against the intimation under section 143(1) and Form 10B was available with the AO, when intimation was passed. 25. During the course of hearing, the learned Standing Counsel had also relied on the judgment of the Hon'ble Apex Court in the case of PCIT Vs. Wipro Ltd., (supra) to contend that filing of audit report in Form 10B before the due date is mand....
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....n the instant case for the following reasons: * In case of Wipro (supra), claim of carry forward of loss was made for the first time in the revised return and such claim was made post due date prescribed under section 139(1). * Revised return was completely contrary to stand taken in the original return and the SC held that same is beyond the ambit of section 139(5). * The option to opt out of section 10B exemption was made for the first time in the revised return and such claim was made post due date prescribed under section 139(1). * The decision did not deal with the issue of delay in filing of audit report. In fact, the revised return was contrary to audit report. 27. Further, the judgment of the Hon'ble Apex Court in the case of Wipro Ltd., (supra) has been discussed and held not applicable in the context of delay in filing audit report in Form 10B for Assessment Year 2018-19 by the Hon'ble Gujarat High Court in the case of CIT(Exemptions) Vs. Gujarat Energy Development Agency TS-47-HC-2024 (Guj HC). The Hon'ble High Court rejected Revenue's reliance on Hon'ble Supreme Court judgment in the case of Wipro Ltd., (supra) and observed that it....
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....an...be, in deserving cases, deviated from". Implicit in this observation is the fact that not following nonjurisdictional High Court decision is more of an exception than the rule. There have to be very strong and good reasons not to follow even non jurisdictional High Court decisions. It is not, therefore, open to us in the present situation, as has been contended by the learned counsel, to simply disregard this judicial precedent from Hon'ble Madras High Court, and follow the decision of the coordinate bench, in assessee's own case, in favour of the assessee. The fact that the decisions in assessee's own cases were authored by one of us, the claim that these decisions elaborately deal with certain aspects which may or may not have been examined by Hon'ble High Court and the apprehension that it may not have been argued on certain important facets, are wholly irrelevant. Once Their Lordships of a higher judicial forum express their esteemed views on any subject, the views expressed by us, in the past, on that issue, have to make way for the higher wisdom of Their Lordships. As for the facets not argued nor not considered, even if any, as is laid down by the apex Court in the case....