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TMI Blog2023 (2) TMI 985X X X X Extracts X X X X X X X X Extracts X X X X ..... e appeal before the learned CIT(A). CIT(A) in his order has made the remark that the consultant being the chartered accountant is expected to know the procedure in such matters as reproduced above. The above finding of the learned CIT(A) justifies the stand of the assessee that it was the mistake of the consultant and not the assessee. Assessee just followed the advice of the expert. Thus, the assessee should not be facing any hardship on account of the advice of the 3rd party, who was the expert of the subject. In such facts and circumstances, we also note that the Hon ble Madras High Court in the case of Hosanna Ministries [ 2017 (3) TMI 1387 - MADRAS HIGH COURT] has condoned the delay which was attributable to the advice of the consultant being a chartered accountant. Exemption u/s 11 - We note that the assessee was not registered under section 12A of the Act for the year under consideration but it got registered in the later year as on 30 July 2018. Admittedly, the assessment proceedings are pending before the ITAT and therefore it appears to us that the assessee is eligible for the benefit granted under section 11 of the Act for the year under consideration. We are ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the provisions of section 143(1) of the Act without allowing the basic exemption of Rs. 2 lakhs. 4. In the present case, the assessee is a trust engaged in imparting education. The return was processed under section 143(1) of the Act. The assessee has filed the return of income treating itself as an association of person (trust)and claimed the basic exemption of Rs. 1,82,025/- only. It was observed by the AO that the assessee is not registered under section 12AA of the Act. Thus, the AO treated the assessee as a private discretionary trust and applied the rate of taxation at the maximum marginal rate. The AO has also disallowed the exemption claimed by the assessee and added back to the total income of it. 5. The assessee has filed the appeal before Ld. CIT(A) with the delay of 561 days. The assessee submitted before the Ld. CIT(A) that the appellant trust is now registered under section 12AA of the Act as on 30-07-2018 and so the second proviso to section 12A(2) of the Act will be applicable to it and the benefit of section 11 and 12 shall also be granted for earlier years in dispute. 6. For the delay in filing the appeal, the assessee submitted that it was advised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... guilty for defiance of any provision of law. The answer certainly goes in favour of the assessee. It is for the reason that the assessee, who was under the bona fide belief upon the advice of the professional, did not prefer any appeal before the learned CIT(A). However, at the same time the assessee upon the initiation of the recovery by the Department immediately approached to another consultant who advised to file the appeal before the learned CIT(A). All these necessary facts are arising from the submissions made by the assessee before the learned CIT(A). The relevant portion of the submission before the learned CIT(A) is reproduced as under: In this regards, we would like to submit that appellant was relying on advice service of its auditor was also handling its income tax matters (including income tax return related follow up with it). Thus, resolving the demand raised through intimation u/s. 143(1) of the act was the responsibility of our auditor (i.e. Sajid Mahmadsidik Boghra). First our auditor tried to resolve the demand through possible means. But when he cannot get the said demand nullified, he choose the other option of Wait watch . As other professional ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble for the benefit granted under section 11 of the Act for the year under consideration. We are making such observation for the reason to highlight the fact that it appears to us that the assessee has got meritorious case and therefore, the case of the assessee should not be rejected on account of technical lapses. We also note that the Hon ble Gujarat High Court in the case of S.R. Koshti Vs. CIT reported in 276 ITR 165 has held as under: 18 . The position is, therefore, that, regardless of whether the revised return was filed or not, once an assessee is in a position to show that the assessee has been over-assessed under the provisions of the Act, regardless of whether the over-assessment is as a result of assessee s own mistake or otherwise, the CIT has the power to correct such an assessment under section 264(1) of the Act. If the CIT refuses to give relief to the assessee, in such circumstances, he would be acting de hors the powers under the Act and the provisions of the Act and, therefore is duty-bound to give relief to an assessee, where due, in accordance with the provisions of the Act. 19 . In the present case, the respondent-CIT has nowhere stated that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16.1 In view of the above, and after considering the facts in entirety, we note that the judgements referred by the learned CIT(A) in his order are distinguishable from the facts of the present case. Therefore, no reference can be made to them while deciding the issue for the condonation of delay in filing the appeal by the assessee before the learned CIT(A). To our understanding, the learned CIT(A)should have condoned the delay in filing the appeal by the assessee by deciding the issue on merit. As such, the case of the assessee deserves to be condoned and to be decided on merit. 17. Before parting, we also note that the demand was raised upon the assessee in the intimation generated under section 143(1) of the Act which was challenged before the learned CIT-A who did not condone the delay in filing the appeal by the assessee. As such, we note that none of the authorities below has looked into the merit of the case, therefore in the interest of justice and fair play, we are setting aside this issue to the file of the AO for fresh adjudication as per the provisions of law. Hence the ground of appeal filed by the assessee is allowed for the statistical purposes. 18. 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