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TMI Blog2024 (4) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... furnishing audit report in Form No.10B especially when the legislature has conferred wide discretionary powers to condone such delay on the authorities concerned. The similar issue is also dealt in the case of ITO(E) Vs. Shri Laxmanarayan Dev Shrishan Seva Khendra [ 2023 (7) TMI 293 - ITAT AHMEDABAD] and Sh. Rajkot Vishashrimali Jain Samaj [ 2023 (3) TMI 765 - ITAT RAJKOT] . On being consistent to the view in the matter we direct the Jurisdiction Assessing Officer (JAO) to consider the Form no. 10B through belated and allow the claim of exemption u/s. 11 of the Act to the assessee. Appeal of assessee allowed. - Dr. S. Seethalakshmi, Jm And Shri Rathod Kamlesh Jayantbhai For the Assessee : Sh. Sudhir Sogani (Adv.) For the Revenue : Sh. Ajay Malik (CIT) ORDER PER: RATHOD KAMLESH JAYANTBHAI, AM This appeal filed by assessee is arising out of the order of the National Faceless Appeal Centre, Delhi dated 26/10/2023 [here in after (NFAC)/ ld. CIT(A) ] for assessment year 2018-19 which in turn arise from the rectification order dated 06.01.2020 passed under section 154 of the Income Tax Act, by Asst. Director of Income Tax, CPC. 2. In this appeal, the assessee has raised following grou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re to furnish such report in the prescribed from along with the return of income results in disentitlement of the trust or institution from claiming exemption under sections 11 and 12 of the Act. 5.1 The appellant is a registered charitable trust. It filed return on 31.03.2019 (as against due date for filing 31.08.2018) declaring Nil income. As per the appellant, the claim of exemption u/s 11 was denied in the intimation dated 17.10.2019 due to non filing of audit report in Form 10B. The appellant filed rectification application on 11.12.2019. The same was rejected vide order dated 06.01.2020. It is also noted from the submission of the appellant that Form 10B was electronically uploaded on 28.01.2020. From the above details, it is clear that Form 10B was not filed by the appellant along with the return of income as required under section 12A(1)(b). Therefore, the CPC correctly denied the exemption in the intimation. In the absence of the audit report in Form 10B, it cannot be said that there was mistake apparent from record in the intimation dated 17.10.2019 as the Form 10B was uploaded much later on 28.01.2020. Since there was no mistake apparent from record, the rectification re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, needy and destitute. It is duly registered with Appropriate Authority (Commissioner of Income-Tax) under section 12AA of the IT Act, 1961 and is also approved for the purpose of section 80G of the IT Act, 1961. The assessee filed its Return of Income for the year under consideration(AY. 2018-19) on 31.03.2019 vide acknowledgement no. 456999940310319 declaring NIL income. However, the assessee did not upload the Audit Report in Form 10B along with the Return of Income. The assessee was sent a communication from Computer Processing Centre (CPC), However the assessee could not respond to the above communication because of certain communication gaps. Therefore, the Computer Processing Centre (CPC) processed the Return u/s 143(1) of the IT Act, 1961 dated 17.10.2019 denying the benefit of exemption u/s 11 of the IT Act, 1961 to the assessee and demanded tax of Rs. 1,49,14,805/-. It is thereafter the filing of appeal, the assessee uploaded electronically Form 10B on 28.01.2020 vide acknowledgement no. 297173731280120. (Copy of Acknowledgement Receipt enclosed for ready reference). There has been a procedural delay in furnishing of Form 10B for various technical reasons which are expla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns regarding furnishing of Audit Report along with the Return of Income has to be treated as a procedural provision. It is directory in nature and its substantial compliance will suffice. The Learned CIT(A-NFAC) has not appreciated the submissions of the appellant as to the fact that filing of Audit Report u/s 12A(1)(b) at any stage before the competition of the assessment or even at the appellate stage is sufficient compliance of the procedure of filing the Audit Report. Rather he has based his decision on an entirely new issue. The Learned CIT(A-NFAC) while pronouncing the decision/order has observed as under: Wherever there is a delay in filing Form 10B, an assessee is required to file an application for condonation of delay. Where there is delay of beyond of 365 days upto three years in filing Form 10B for Assessment Year 2018-19 or for any subsequent Assessment Years, the CBDT Circular No. 16 of 2022 authorizes Pr. CCIT/CCIT to admit application for condonation of delay under section 119(2) of the Act and decide the same on merits. Similar powers in respect of delay upto 365 days was given to the CIT (Exemption) vide CBDT Circular 2 of 2020 dated 03.01.2020. Thus, there is a l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... written submissions before the Learned Appellate Authority dated October 13, 2023 (copy enclosed for ready reference) the assessee appellant had requested the Learned Appellate Authority that in case any further information is desired the same may be called for. The Learned Appellate Authority passed the appeal order under the impression that the assessee appellant has not moved an application before the Learned Appropriate Authority (CIT (exemption) or Pr. CCIT/CCIT as applicable) which is not correct. The assessee appellant had moved application before the Learned CIT for condonation of delay in filing Form 10B of the IT act, 1961 which was rejected by the Learned CIT without giving any opportunity to the assessee of hearing, against which the assessee has filed an appeal before the Honourable ITAT which is pending for disposal. The assessee did not state these facts before the Learned CIT (Appeals-NFAC) under the impression that as per the various decisions of High Courts (Supra) this fact was not required to be put forward before the Learned CIT(Appeal-NFAC). There was no other reason for not apprising the Learned CIT(Appeal-NFAC) of this fact. Also, in the interest of justice, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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