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TMI Blog2024 (5) TMI 536X X X X Extracts X X X X X X X X Extracts X X X X ..... TAT KOLKATA] Income-tax Department was aware about the technical glitches and the problems faced by the tax-payers in furnishing various types of Forms including Form No. 10B is with regard to the furnishing of audit report in case of Trusts and Societies - return was filed within time limit prescribed u/s 139(1) of the Act but there was a delay in furnishing of the audit report on Form 10B and this Tribunal after considering the facts of the case as well as judicial precedents allowed the benefit of Section 11 12 of the Act. Coordinate bench held that up to March 2022, the country was passing through pandemic. The due dates for filing of the return of income as well as compliance made by the assessee also falls during that period. In view of this, we find that the delay caused in filing of number 10B deserves to be condoned. Accordingly, as indicated above, CIT- A was correct in allowing the appeal of the assessee. - Shri Prashant Maharishi, AM And Shri Raj Kumar Chauhan, JM For the Assessee : Shri Mandar Joshi, AR For the Revenue : Shri H.M. Bhatt, DR ORDER PER PRASHANT MAHARISHI, AM: 01. ITA No. 3533/Mum/2023, for A.Y. 2021-22, is filed by the Income Tax Officer, Ward 2(2), Mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee also submitted that the trust was registered under Section 12AB of the Act and further, for filing form no.10B of the Act, the CBDT extended the date of filing till 25th November, 2022. Thus, the CPC completely ignored these facts. Based on this information, the learned CIT (A) held that , assessee has filed form no.10B of the Act along with original return of income on 14th March, 2022, and further along with the revised return on 29th March, 2022, the order of rectification passed on 7th March, 2023, denying exemption under Section 11 of the Act, for form no.10B and 10BB of the Act not filed in accordance with provision of section 12A (1) (b) of the act, is not correct. The learned CIT (A) considering clause (ii) of explanation to section 44AB which provided that these forms are required to be filed one month prior to the due date of furnishing of return of income under Section 139 of the Act., which was imported in section 12A (1) (b) of the Act, such time limit being directory. Though, the assessee filed those form along with their original as well as revised return is in compliance with the provision of the Act . The ld CIT (A) followed decision of Hon'ble Gujarat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21 22 on 14/3/2022 declaring total income at Rs. Nil. This return was revised on 29/3/2022 at Rs. Nil. Original return of income filed on 14/3/2022 was processed under section 143 (1) of The Act on 10/8/2022. This return was rectified on 7/3/23 under section 154 of the act for the reason that form number 10 B was not find in time and claim of exemption under section 11 of the act was rejected bringing to tax income of ₹ 40,921,419/ . 010. Provision of section 12 A describes the conditions for applicability of section 11 and 12. As per provisions of section 12 A (1) (b) of the provided that (b) where the total income of the trust or institution as computed under this Act without giving effect to the provisions of section 11 and section 12 exceeds the maximum amount which is not chargeable to income-tax in any previous year, the accounts of the trust or institution for that year have been audited by an accountant as defined in the Explanation below sub-section (2) of section 288 before the specified date referred to in section 44AB and the person in receipt of the income furnishes by that date the report of such audit in the prescribed form duly signed and verified by such acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar relevant to assessment year, mean the date one month prior to the date of furnishing the ROI u/s 139(1). 4.3 The appellant has filed Form 10B in both the cases i.e. filing of original ROI and the filing of Revised ROI on the same date of filing of ROI. The appellant claimed that it is holding valid registration u/s 12A of the Act and had complied with the requirement of the Act by way of filing Form 10B and hence it cannot be denied exemption u/s 11 of the Act. The appellant relied on the following case laws on the issues that though s. 12A(1)(b) provides that the exemption u/s 11 will be available only if the accounts are audited and audit report furnished along with the return , the same is not mandatory but is directory and when the requirements if law are complied with, exemption u/s 11 of the Act cannot be denied. i. Sarvodaya Charitable Trust Vs ITO (Exemption) (2021) (125 com 75) (Gujarat) wherein it has been held that - exemption u/s 11 cannot be denied for delay in filing Form No 10B. Allowing the petition the Court held that since Assessee was a public charitable trust for past 30 years who substantially satisfied condition for availing benefit of exemption, Assessee c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the Assessee merely on bar of limitation in furnishing audit report in Form 10B. Considering the aforesaid and legal discussion, we find that though the Assessee has not filed any return of income at the time, however, it was available before the ld. CIT (A) as it was uploaded much before filing application under section 154. Therefore, respectfully following the decisions of Hon'ble jurisdictional High Court in case of CIT v. Xavier Kalavani Mandal (P.) Ltd. (supra) and in Sarvodaya charitable Trust v. ITO (Exemption) (supra), we find that the Assessee has complied the procedural requirement, therefore, the Assessing Officer/CPC is directed to verify the claim of the Assessee and grant necessary deduction under section 11 of IT Act. In the result, the appeal of the Assessee is allowed for statistical purposes. As in the present case also the Assessee has complied with the procedural requirement of obtaining and filing Form 10B, therefore, respectfully following the aforesaid decision of the Coordinate Bench of the Tribunal, the Assessing Officer is directed to decide the claim of the Assessee under section 11 on merits, after accepting the Form 10B filed by the Assessee. Acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also Form 10B on the dates of filing of the ROI. Thus, the appellant had complied with the requirements of furnishing of Form 10B. I have gone through the case laws relied upon by the appellant and came to the conclusion that the appellant cannot be denied exemption u/s 11 of the Act on the facts of its case. The AO is, therefore, directed to allow exemption u/s 11 of the Act to the appellant. Accordingly, the ground no. 1 is allowed. 013. The impugned assessment year is assessment year 2021 22 , the learned CIT A has considered the issue in earlier assessment year. However, CBDT has extended due date of filing of the return of income my press release dated 9/9/2021 as under :- 5. The due date of furnishing of Return of Income for the Assessment Year 2021-22, which is 30th November, 2021 under sub-section (1) of section 139 of the Act, as extended to 31st December, 2021 vide Circular No.9/2021 dated 20-5-2021, is hereby further extended to 28th February, 2022; 6. The due date of furnishing of belated/revised Return of Income for the Assessment Year 2021-22, which is 31st December, 2021 under sub-section (4)/sub-section (5) of section 139 of the Act, as extended to 31st January, 202 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eport in case of Trusts and Societies. In the instant case since, delay is merely 28 days, we find that the said delay deserves to be ignored in larger interest of justice. The assessee is thus entitled to claim exemption u/s 11 of the Act made in the Income-tax return e-filed by it. We further fund support from the decisions of this Tribunal in the case of Bangarh Educational Welfare Trust v. ITO (Exemptions) in ITA No. 496/Kol/2021; Assessment Year 2018-19, order dt. 02/01/2022, wherein also similar issue was raised for Assessment Year 2018-19 and the return was filed within time limit prescribed u/s 139(1) of the Act but there was a delay in furnishing of the audit report on Form 10B and this Tribunal after considering the facts of the case as well as judicial precedents allowed the benefit of Section 11 12 of the Act to the assessee. 015. Coordinate bench held that up to March 2022, the country was passing through pandemic. The due dates for filing of the return of income as well as compliance made by the assessee also falls during that period. In view of this, we find that the delay caused in filing of number 10 B deserves to be condoned. Accordingly, as indicated above, the l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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