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TMI Blog2024 (1) TMI 1192X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Wipro Limited [ 2022 (7) TMI 560 - SUPREME COURT] would not be applicable as in the facts of the present case, the assessee has claimed the exemption u/s 11 read with Section 12A(1)(b) of the Act which required the assessee to file audit report in Form of 10B which has nothing to do with claiming 100% exemption of total income in respect of newly established 100% Export Oriented Undertakings under Section 10B. Section 10B(8) requires the assessee to file an undertaking before the due date of furnishing of return of income under sub-section (1) of Section 139 before the AO in writing that the provision of Section 10B may not be made applicable to him, otherwise the provision of this Section shall not apply to him for any of the relevant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act before the Assessing Officer prior to the original assessment order under Section 143(3) passed on 06th April, 2021. Decided in favour of assessee. - HONOURABLE MR. JUSTICE BHARGAV D. KARIA AND HONOURABLE MR. JUSTICE NIRAL R. MEHTA Appearance: For the Appellant(s) No. 1 : Ms Maithili D Mehta(3206) For the Opponent(s) No. 1 : Mr Chintan Dave, Advocate For Hlp Associates LLP(9263) ORAL ORDER (PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA) 1. By this appeal under Section 260A of the Income Tax Act, 1961, the appellant-revenue has proposed the following question as substantial question of law arising out of order dated 19th May, 2023 passed by the Income Tax Appellate Tribunal, A Bench, Ahmed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nged the intimation before CIT (Appeals) who, After considering the fact that filing of audit report in Form 10B was a procedural requirement and in light of various judicial pronouncements on the issue of delayed submission of Form 10B, allowed the claim of the assessee by observing that the audit report was e-filed to Assessing Officer in regular assessment proceeding on 06th December, 2018 and was made available before the Assessing Officer when he passed the assessment order under Section 143(3) on 06th April, 2021. 2.4 The appellant, therefore, being aggrieved by the order passed by the CIT (Appeals), preferred Appeal before the Tribunal. 2.5 The Tribunal, after considering the submissions of both the sides, referred to and relie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same merely on the bar of limitation especially when the legislature has conferred wide discretionary powers to condone such delay . Applying the said principle, the petition is allowed. The impugned order passed by respondent dated 12.3.2021 is quashed and aside. The impugned order of rectification under Section 154 of the Act dated 25.1.2019 is also quashed and set aside. The application for condonation of delay filed by the petitioner before the respondent is allowed. 3. Following the above decision of this Court, the Tribunal dismissed the Appeal. 4. Learned advocate Ms. Maithili Mehta for the appellant submitted that in case of Principal Commissioner of Income Tax-III, Bangalore v. M/s. Wipro Limited of the Hon ble Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the Act, the Hon ble Supreme Court held that it was mandatory on part of the assessee to file declaration before the due date of filing of return under sub-section (1) of Section 139 of the Act, whereas in the facts of the said case the assessee filed such undertaking along with the revised return under sub-section (5) of Section 139 of the Act and in such facts the Hon ble Supreme Court held that the twin conditions prescribed under Section 10B(8) of the Act was mandatory to be fulfilled and it cannot be said that though the declaration is mandatory, the filing of such declaration within the due date of filing of return under sub-section (1) of Section 139 would be directory. 7. Reference to the aforesaid decision has no connection ..... X X X X Extracts X X X X X X X X Extracts X X X X
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