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2020 (11) TMI 618 - ITAT KOLKATARevision u/ 263 - A.O. default in allowing accumulation u/s 11 (2) in the case of a late return - return of income a well as Form-10 have been filed belatedly - delay in filing of form 10 only has been condoned in exercise of powers delegated to the undersigned. It however, does not mean that the delay in filing of return of income also stands condoned. - as per CIT-A in the absence of condonation of delay in filing of return of income. the claim of exemption u/s 11(2) cannot be allowed in the facts of the present case - HELD THAT:- AO in his order passed u/s 143(3) of the Act on 31/10/2018 had considered each and every aspect of this issue. In fact, the return of income was filed on 20/10/2016 declaring Nil income and this was in time. The assessee filed the revised return of income on 29/11/2017 and this was selected for scrutiny. The ld. CIT(E) while condoning the delay in filing of Form 10 vide his order dt. 20/11/2017, u/s 119(2)(b) of the Act, was aware of all these circumstances. As the original return was filed in time and delay in filing of Form 10 was condoned by the ld. CIT(E), we are of the view that the twin conditions mentioned u/s 13(9) of the Act was satisfied. It is not the case of the revenue that the original return of income was not filed within the due date of filing as specified u/s 139(1) - AO has considered the legal position and has taken a possible view after application of mind. Assessing Officer was bound to consider the original return of income which was filed in time as well as the Form 10 filed after condonation of delay by the ld. CIT(E) and grant exemption to the assessee. He did so in the assessment order passed u/s 143(3) of the Act on 31/10/2018. He took a possible view. Such view cannot be considered as an order which causes prejudice to the revenue - the order passed u/s 263 is bad in law and without jurisdiction - Decided in favour of assessee.
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