9911796707
TMI Blog2024 (2) TMI 532X X X X Extracts X X X X X X X X Extracts X X X X ..... f Form 10B alongwith the return of income is only a procedural requirement and cannot be treated as mandatory requirement for the purpose of claiming exemption u/s 11 12 of the Act and even if filed at a later stage the assessee is entitled to exemption claimed. As in the case of Shree Bhairav Seva Samiti [ 2022 (12) TMI 445 - ITAT MUMBAI] allowed assessee s claim to exemption u/s 11 as held that even if form 10B is filed at a later stage exemption cannot be denied u/s 11. Thus no hesitation in holding that the assessee s claim of exemption to its entire income u/s 11 of the Act is to be allowed. The AO/CPC is accordingly directed to delete the adjustment made in the intimation u/s 143(1) - Decided in favour of assessee. - Mrs. Annapurna Gupta, Accountant Member And Shri T.R. Senthil Kumar, Judicial Member For the Assessee : Shri Dileep K. Vaidya Ms. Anjana, ARs For the Revenue : Shri Sudhendu Das, CIT-DR ORDER PER ANNAPURNA GUPTA, ACCOUNTANT MEMBER: Present appeal has been filed by the assessee against order of the Commissioner of Income-tax (Appeals), National Faceless Appeal Centre (NFAC), Delhi [hereinafter referred to as CIT(A) for sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dit report - form 10B, which is not relevant and not applicable to the facts of capital receipt -gift in kind (immovable property) and as the assessee had already paid the tax on gross annual income of Rs. 22967/- Also the assessee trust had the income below the taxable limit, so there was bonafide belief that form no 10B is not required to be filed. 6. The learned CIT(A) has erred in law and facts in relying upon the decision of Balraj Singh Jagjit Singh ITAT (Mum) dated 07-06-23, being not applicable to the facts of the assessee trust. 7. The Learned CIT (A) has erred in law and facts in not appreciating the fact that when the land has been gifted to the trust without any consideration and duly registered with the sub-registrar, the value adopted (Rs. 15,70,11,000/-) for paying stamp duty cannot be treated as income of the trust, also it does not fall under purview of income. 8. On the facts of the assessee, the mistake committed in the return should not have been taken as advantage, keeping in the principle of natural justice, and the Circular 14 (XL - 35) dated 11/04 /1955 issued by the Government ought to have been applied to the facts of the assessee providing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 03 Aggregate of income referred to in sections 11, 12 and sections 10(23C)(iv), 10(23C)(v), 10(23C)(via) derived during the previous year excluding voluntary contribution included in 1 7 2 above (Sr. No. 10 of Schedule AI) 8,967 8,967 04 Exemption u/s 11/10(23C)(iv) /10(23C)(v)/10(23C)(vi)/10(23C)(via) Application of income for charitable or religious purposes or for the stated object of the trust / institution. 0 0 (i) Amount applied during the previous year Revenue Account [Excluding application from borrowed fund, deemed application, previous year accumulation upto 15% etc, i.e. not from the income of prev. year] ([Sr. No. F from Schedule ER] 74,061 0 (ii) Amount applied during the previous year- Capital Account [Excluding application from Borrowed Funds, deemed application, previous year (ii) accumulation upto 15% etc ie, not from income of the pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll to Rs. 16,40,93,967/- was subjected to tax and treated as its total income while the assessee had claimed the entire amount as exempt. Assessing its total income at Rs. 16,40,93,967/-, tax demand of Rs. 8,59,78,930/- was raised thereon in the intimation made u/s 143(1) of the Act. Thus, in effect, while the assessee had claimed its entire income exempt in terms of Sections 11 12 of the Act, the intimation made u/s 143(1) denied the assessee s claim of exemption subjecting its entire income of Rs. 16.40 crores to tax. 6. The reasons for the denial of exemption in the intimation find mention in the column incorrect claim of the intimation, as the non-furnishing of Audited Report in Form 10B, at least one month prior to the due date of furnishing return of income. The contents of the same are reproduced hereunder:- Incorrect Claim u/s 143(1)(a)(ii) Sl. No. Schedule Error Description Amount in Rs. In Income Tax Return As computed Variance 1 Part B-TI /Part AGeneral Information ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e expenditure statement of income, as per Trust act, also 70 days prior to filing the ITR. The appellant Trust s ITR was filed on 28.12.2021, i.e. well within the due date of 31.12.2021 as prescribed u/s 139(1). Audit Report form 10B was filed on 10/10/2022, ack. No. 630549040101022 for AY 2021-22 which was attached with Auditors certified balance sheet, income expenditure schedule IX-C Audit report dated 19/10/2021. Annexure (1) for Audit Report, 10 B and certified balance sheet, income expenditure schedule IXC, auditor s certificate dtd. 12/10/22 are included for your kind reference. 10. In view of the above, it is evident that the assessee had demonstrated to the ld. CIT(A) that the necessary Form 10B had been prepared much in advance before the due date of filing of return of income and had been filed before the ld. CIT(A) also. 11. In the light of the above facts, we hold that since the failure to file Form No.10B was the only reason for the adjustment made to the return of income of the assessee subjecting its entire income to tax on the filing of the Form 10B to the ld. CIT(A), the assessee ought to have been allowed its claim of exemption to its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he audit report has required under Form 10B was not uploaded once uploaded on the system consequently the AO/CPC not allowed the exemption claimed under section 11. Assessing Officer/CPC brought the entire receipt as taxable income. On receipt intimation under section 143(1) of the Act the assessee uploaded in Form 10B and filed application for rectification under section 154 of the Act. The application of the assessee was rejected on the ground report in Form 10B was not furnished before due date of return of income. The ld. CIT(A) dismissed the appeal of the assessee by taking view the audit report in Form 10B was not uploaded before due date of return of income. 9. We find that the Hon'ble jurisdictional High Court in case of CIT v. Xavier Kalavani Mandal (P.) Ltd. (supra) held that in order to claim exemption under section 11, the assessee can filed audit report in Form 10B even at later stage either before the Assessing Officer or before appellate authority by showing a sufficient cause. Further, Hon'ble jurisdictional High Court decision in case of Sarvodaya charitable Trust v. ITO (Exemption) (supra) also held that where the assessee is a public charitable trust ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
