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TMI Blog2023 (12) TMI 1186X X X X Extracts X X X X X X X X Extracts X X X X ..... istered with the Income Tax Department. So far as registration is concerned, there no quarrel on the same. The dispute in the present case is only in respect of the assessment order for the Assessment Year 2017-18. The admitted factual matrix from the facts of the case is that the return of income was filed by the petitioner for the Assessment Year 2017-18 on 02.11.2017. Before filing of the said return itself, the accounts of the petitioner were got audited and the audit report was prepared well in time on 20.09.2017. The due date for filing of the return was on or before 31.10.2017 and the petitioner herein did file his return on 31.10.2017. However, on account of certain defects detected, the same was returned and revised return was filed on 02.11.2017. Thus, the return stands submitted within the time. However, there was a requirement for uploading of the audit report. The audit report meanwhile was uploaded though at a belated stage on 21.02.2019, nonetheless the uploading of the audit report was much before (before 2.5 years) the assessment order dated 24.09.2021 was passed. It is in this factual backdrop that the application for condonation of delay filed by the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re certain defects, the same was returned and revised income tax returns were furnished on 02.11.2017. While submitting the returns, nil income was declared claiming exemption under Section 12A of the Act. Thereafter, the respondent No. 1 initiated proceedings under Section 147 of the Act and a notice under Section 148 of the Act is said to have been issued on 19.09.2019 and further notice under Section 142(1) of the Act was also issued calling upon the petitioner to submit certain additional details. Finally an order was passed under Section 147 read with Section 114 and Section 144B of the Act on 24.09.2021. 5. The respondent No. 1 while passing the said order held that the petitioner has failed to prove the source of cash deposited by him in their respective banks amounting to Rs. 87,13,060/- and the entire amount was being treated as unexplained money and was added under Section 69A read with Section 115BBE of the Act. 6. It was the contention of the learned counsel for the petitioner that none of the notices issued including the show cause notices were served upon the petitioner and neither was there any material available on record to show that the notices were duly ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned counsel for the petitioner, the impugned order passed by the respondent No. 3 is totally arbitrary, without proper application of mind and being passed in a mechanical manner. It was specifically contended that the authority concerned has not dealt with it in any manner or discussed upon any of the grounds raised in the application under Section 119(2)(b) of the Act. For the said reason, the prayer of the petitioner was for issuance of an appropriate Writ in the nature of Mandamus declaring the impugned order dated 31.07.2023 rejecting the application under Section 119(2)(b) of the Act to be arbitrary, bad in law and for an appropriate direction to hold that the consequential decisions taken also to be bad in law. In support of his contentions, learned counsel for the petitioner relied upon the decisions in the case of MADHU DADHA vs. ASSISTANT COMMISSIONER OF INCOME TAX (2009) 317 ITR 458 (Mad), COMMISSIONER OF CUSTOMS (IMPORT), MUMBAI VERSUS M/S. DILIP KUMAR AND COMPANY ORS. CIVIL APPEAL NO. 3327 of 2007 of Supreme Court of India so also the case of M/s. Myadam Kishan Rao Charitable Establishment vs. The Commissioner of Income Tax (Exemption) WP 24005 of 2023 dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the aforesaid reason, the learned counsel for the respondent-Department prayed for rejection of the writ petition holding it to be devoid of merits. 13. Learned counsel for the respondent-Department in support of his contentions had relied upon the decisions in the cases of ASSISANT COMMISSIONER (CT) LTU, KAKINADA Versus GLAXO SMITH KLINE CONSUMER HEALTH CARE (2020) 19 Supreme Court Cases 681 and yet another decision of the Division Bench of this Court in M/s. Zoos and Parks Authority of Telangana vs. The Commissioner of Income Tax (Exemptions) WP 8794 of 2023 dated 04.04.2023 of High Court for the State of Telangana to be adopted in an appropriate case. 14. Having heard the contentions put forth on either side and on perusal or records, for proper adjudicating the dispute raised in the present writ petition, it would be relevant at this juncture to take note of the contents of the impugned order itself which for ready reference is reproduced herein under: With reference to the assessee s application for condonation of delay in filing Form 10B for the A.Y. 2017-18, cited under reference 1 above, it is to state that the assessee has filed Form 10B belatedly. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te in the present case is only in respect of the assessment order for the Assessment Year 2017-18. 16. The admitted factual matrix from the facts of the case is that the return of income was filed by the petitioner for the Assessment Year 2017-18 on 02.11.2017. Before filing of the said return itself, the accounts of the petitioner were got audited and the audit report was prepared well in time on 20.09.2017. The due date for filing of the return was on or before 31.10.2017 and the petitioner herein did file his return on 31.10.2017. However, on account of certain defects detected, the same was returned and revised return was filed on 02.11.2017. Thus, the return stands submitted within the time. However, there was a requirement for uploading of the audit report. The audit report meanwhile was uploaded though at a belated stage on 21.02.2019, nonetheless the uploading of the audit report was much before (before 2.5 years) the assessment order dated 24.09.2021 was passed. It is in this factual backdrop that the application for condonation of delay filed by the petitioner ought to have been decided by the authority concerned. 17. Now if we look into the statutory provisions, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate authority by assigning sufficient cause. 19. The High Court of Gujarat further in the case of COMMISSIONER OF INCOME-TAX v. GUJARAT OIL AND ALLIED INDUSTRIES [1993] 201 ITR 325 (Guj) held as under: In our view, the aforesaid reasoning of the Allahabad High Court and the Patna High Court would squarely apply to the facts of the present case. The provision about furnishing of the auditors report along with the return has to be treated as a procedural provision, directory in nature, and its substantial compliance should suffice, meaning thereby that such report should be made available by the assessee to the Assessing Officer latest when the question of framing of assessment is taken up by the Income-tax Officer and when he applies his mind to the claim of the assessee and if by that time, the assessee has put his house in order and has furnished the report of the auditor for supporting the return, he can be said to have satisfied the requirement of section 80J(6A) of the Act. 20. A similar view is available from the High Court of Punjab and Haryana in the case of COMMISSIONER OF INCOME TAX v. SHAHZEDANAND CHARITY TRUST 228 ITR 292(P H), where again the D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be produced at any later stage either before the Income-tax Officer or before the appellate authority. 21. Coming to the decisions relied upon by the learned counsel for the respondent-Department, those decisions were rendered under entirely different contextual background and thus in both the cases it was not a situation where the income tax return was filed and the audit report also stood uploaded more than 2.5 years much before the Assessing Officer had passed the assessment order. Therefore, the said judgments cannot be applied in a straight jacket manner to the facts of the present case. 22. For the aforesaid reasons, we are inclined to allow the writ petition setting aside the impugned order dated 31.07.2023. As a result, the consequential order passed subsequent to the rejection of the application under Section 119(2)(b) of the Act would also get automatically quashed and the application of the petitioner for condonation of delay stands allowed. Wherefore the respondent No. 3 would be required to pass an appropriate consequential order in accordance with law. 23. Accordingly, the writ petition stands allowed. No costs. Miscellaneous petitions, pending if any, sh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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