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TMI Blog2022 (11) TMI 1173X X X X Extracts X X X X X X X X Extracts X X X X ..... oy Sarma, Hon ble Judicial Member For the Appellant : Shri Amiya Kumar Sahu, Advocate For the Respondent : Shri Biswanath Das, ACIT ORDER PER SONJOY SARMA, JM: This is an appeal preferred by the assessee for A.Y. 2018-19 is directed against the order of ld. CIT(A), National Faceless Appeal Centre dated 17.09.2021 u/s 143(1) of the Income-tax Act, 1961. The assessee has taken the following grounds of appeal: i. For that the CIT(A) fails to understand that the tax is payable on income not on Gross Receipts thus disallowance of revenue expenditures pent is unlawful, whimsical based on surmises and thus order passed by the CIT(A) confirming the assessment order is liable to be set aside. ii. For that the audit report 10B can be submitted at the time of assessment therefore, the order passed by CIT(A) without considering the revenue expenses spent by the society is whimsical, illegal, unlawful and liable to be set aside. iii. For CIT(A) fails to consider that in the intimation Order under section 143(1) the Audit Report 10B is not mentioned therefore, no scope is given to the assessee for submitting audit report at the time of the assessment ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld. CIT(A). Moreover, assessment has been completed under section 143(1) without giving any opportunity to assessee to file the audit report which was audited on 18.04.2018. Even though the ld. CIT(A) also not considered the plea of the assessee at the time of hearing the matter and dismissed the appeal of the assessee. Therefore, the impugned order required to be quashed. On the contrary, the ld. DR opposed the submission made by AR and supported the order of the authorities below. 6. We have heard rival submission and perused the material available on record. The ld. CIT(A) dismissed the appeal by observing as under: 4. Decision: I have carefully considered the facts on record, order u/s 143(1) of the Act and the written submissions of the appellant. 4.1. Ground No. 1 to 4 relates to denial of exemption u/s 11 and 12 of the Act: Perusal of intimation order reveals that the appellant did not furnished the audit report in Form No. 10B as per the requirement of section 12A(b) of the Act and this fact is duly incorporated in the intimation order. It has also been verified that the Form 10B has been digitally submitted on 04.12.2020 i.e. much after the due date for filin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prescribed from along with the return of income results in disentitlement of the trust or institution from claiming exemption under sections 11 and 12 of the Act. 3. Representations have been received by the Board/field authorities stating that Form No. 10B could not be filed along with the return of income for A.Y. 2016-17 and A.Y. 2017-18. It has been requested that the delay in filing of Form No. 10B may be condoned. Previously, vide instruction in F.No. 267/482/77-IT(part) dated 9-2-1978, the CBDT had authorized the ITO to accept a belated audit report after recording reasons in cases where some delay has occurred for reasons beyond the control of the assessee. 4. Accordingly, the CBDT issued Circular No. 10/2019 circulated through F.No. 197/55/2018-ITA-l in supersession of earlier circular/lnstruction issued in this regard, and with a view to expedite the disposal of applications filed by such trust or institution for condoning the delay in filing Form No. 10B-and in the exercise of the powers conferred under section 119(2) of the Act, the Central Board of Direct Taxes vide Circular No. 10/2019 dated 23rd May, 2019 and Circular No. 28/2019 dated 27th September, 2019 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see is the Society of Ex Servicemen and registered under West Bengal Societies Registration Act, 1961 which is carrying charitable activities and registered u/s 12A of the Act. Assessee filed its return of income for A.Y. 2018-19 on 30.10.2018 and due to bonafide mistake on the part of the assessee Form No. 10B along with audit report could not able to file on or before filing of Income Tax return and it is not a willful or intentional delay on the part of assessee. We note that after the due date of filing of return, the assessee has been digitally submitted Form No. 10B on 04.12.2020. However, the ld. CIT(A) did not consider the same with a view to CBDT s Circular No. 2/2020 and stated that assessee s case is covered under Clause 5 of the said circular. 8. We also note that this issue has been clarified by Board vide CBDT Circular No. 2/2020 as under: Under the provision of section 12A of Income-tax Act. 1961 (hereafter 'Act') where the total income of a trust or institution as computed under the Act without giving effect to the provisions of section 11 and section 12 exceeds the maximum amount which is not chargeable to income tax in any previous year, the accoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g Form No. 10B for years prior to AY. 2018-19. The commissioner of Income-tax are authorized to admit and dispose off by 31-3-2020 such applications for condonation of delay u/s 119(2)(b) of the Act. The Commissioner will while entertaining such belated applications in filing Form No. 10B shall satisfy themselves that the assessee was prevented by reasonable cause from filing such application within the stipulated time. 5. In addition to the above, it has also been decided by the CBDT that where there is delay of upto 365 days in filing Form No. 10B for Assessment Year 2018-19 or for any subsequent Assessment Years, the Commissioners of Income-tax are hereby authorized to admit such belated applications of condonation of delay under section 119(2) of the IT Act and decide on merits. 6. The Commissioners of Income-tax shall, while entertaining such belated applications in filing Form No. 10B, satisfy themselves that the assessee i was prevented by reasonable cause from filing such application within the stipulated time. 9. The above circular stated that CIT(A) has power for condoning belated application in filing Form No. 10B wherever the assessee was prevented by rea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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