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TMI Blog2024 (2) TMI 602X X X X Extracts X X X X X X X X Extracts X X X X ..... mendment was made in A.Y. 2018-19, in our view, this amendment cannot be applied for the A.Y. 2010-11. Therefore, the appellate order passed by applying provisions, which were not relevant for the assessment year under consideration is bad in law. Accordingly, we hold that the assessment order is bad in law for reopening the assessment with the wrong reasons and appellate order passed with the amended provisions under section 12A(1)(ba) is also bad in law. Assessee appeal allowed. - SHRI ABY T VARKEY, HON'BLE JUDICIAL MEMBER SHRI S. RIFAUR RAHMAN, HON'BLE ACCOUNTANT MEMBER For the Appellant : Ms. Drutika Kitwat Shri Priyank Ghia For the Respondent : Shri S.N. Kabra ORDER PER S. RIFAUR RAHMAN (AM) 1. These appeals are filed by the assessee against different orders of Learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi [hereinafter in short Ld. CIT(A) ] dated 21.04.2023 for the A.Ys.2010-11 2011-12. 2. Since the issues raised in both these appeals are identical, therefore, for the sake of convenience, these appeals are clubbed, heard and disposed off by this consolidated order. We are taking Appeal in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made its account audited on 25.11.2013 and filed its Return of Income on 13.12.2013. Under the above circumstances, the assessee was show caused vide order sheet noting dated 21.08.2017 as to why section 12A(1)(b) be not invoked and section 11 be denied to the assessee. 8. In response assessee filed its response on 18.09.2017, for the sake of clarity it is reproduced below: - As per the reasons received from your office vided letter No. ITO(E)-1(3)148/2017-18 dated 26/07/2017 it is stated that the assessee trust has not filed its return of Income for A.Y. 2010-11. However, this is not correct. Our client had filed its Return of Income for A.Y.2010-11 on 13.12.2013. Please note that our client has disclosed Rs. 33,57,247/- as voluntary contribution and Rs. 2,40,007/-as other income. Please note that cash deposited in Bank account is out of these receipts. We therefore state that there is no income which has escaped assessment and hence object to the re-opening of the assessment. 9. After considering the above submissions, Assessing Officer observed that assessee has made its account audited on 25.11.2013 and filed its Return of Income on 13.12.2013 for A.Y.2010-11. As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... less Appeal Centre (NFAC), Delhi has erred in confirming the addition made by learned A.O. of Rs. 21,21,919/- for the A. Y. 2010-11 and the assessee prays to delete the said addition on the following grounds:- 1. The CIT(A) erred in understanding that belated filing of return of income by the appellant trust makes the exemption of section 11/12 not justifiable. The Ld. CIT(A) has placed its reliance on the judgment of Hon'ble Income Tax Appellate Tribunal, Pune Bench in case of Arya Kshatriya samaj vs ITO (ITA No. 175/PUN/2023). The judgement in above cited case was delivered with regard to Assessment Year 2019-20. 1.1 The CIT(A) has concluded that exemption u/s 11 and 12 is not allowable due to belated filing of the Income Tax Return. This understanding is erroneous since the provision to disallow exemption under section 11 and 12 for belated filing of return of income was introduced in Assessment year 2018-19 by virtue of section 12(ba). The provision is not retrospective in nature. The Ld. CIT(A) has erroneously applied these provisions to A. . 2010-11. 2. The Ld. CIT(A) erred in disallowing Expenditure incurred by the appellant trust to the tune of Rs. 15, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before us. Further, she submitted that assessee has received notice under section 148 for non-filing of return issued on 31.03.2017 and assessee has brought to the notice of the Assessing Officer that assessee has already filed its return of income along with Form 10B on 25.11.2013 and the Assessing Officer has accepted the above said return of income and completed the assessment under section 143(3) r.w.s. 147 of the Act. 14. With the above submissions and facts on record she submitted that section 12A(1) of the Act is relevant to A.Y. 2010-11 [copy of the same was submitted before us at Page No. 30 of the Paper Book] and she submitted that the clause 12A(1)(ba) was amended by the Finance Act, 2017 applicable w.e.f 01.04.2018. Based on the above amendment filing of return of income and audit report beyond the period of limitation as per section 139(4A), the assessee looses the right to claim provisions of section 11 of the Act. Further, Ld. AR submitted that Ld. CIT(A) by relying on the decision of the Arya Kshatriya Samaj v. ITO (supra) held that the return of income filed belatedly makes the non-applicability of exemption under section 11/12 of the Act to the appellant is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2A(1)(ba) and the case law relied by the Ld. CIT(A) also relating to A.Y. 2019-20. Therefore, the amended proviso and the case law were not relevant for the current assessment year under consideration. 18. After careful consideration we observe that the case of the assessee was reopened under section 147 of the Act with the observation that assessee has not filed its return of income. However, the Assessing Officer himself observed in his order that assessee had in fact filed its return of income on 13.12.2013. From the above it is also clear that the reason for reopening itself fails in this case, prima facie the assessment was reopened with the wrong reasoning that assessee has not filed its return of income by merely observing from IT Portal. It is fact on record that assessee has filed its return of income and Assessing Officer has accepted the same. On this count itself the assessment made by the Assessing Officer with wrong reasoning is deserves to be quashed. 19. Coming to the next issue that whether the assessee is eligible to claim deduction under section 11 of the Act, Ld. CIT(A) has applied the amendment made in the provisions of section in the A.Y. 2018-19. Sinc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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