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TMI Blog2024 (6) TMI 735X X X X Extracts X X X X X X X X Extracts X X X X ..... laim of application of income cannot be denied to the assessee only on the ground that the assessee/the auditor of the assessee omitted to file form 10 B (auditor s report) along with return of income, when the same was submitted to the tax authorities before the order/intimation under section 143 (1) of the Act was issued. Levy of Fee u/s 234F - delayed filing of the income tax return - HELD THAT:- We observe that as per Explanation 2(a)(ii) of section 139(1) of the act, the due date for filing the Income-tax return in case of a person (other than a company) whose accounts are required to be audited under this Act or under any other law for the time being in force, is 30th day of September of the assessment year. Accordingly, due date for filing the Income-tax return in the case of appellant-trust, for AY 2018-19, as per section 139(1) of the act, is 30th September, 2018. Further, from the facts of the case, we observe that appellant trust had filed its return of income as on 26th September, 2018 (i.e. before 30th September, 2018). Thus, we understand that the return of income of appellant trust was duly filed within the prescribed time limit u/s 139(1) of the act. As per section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se the audit report of trust (i.e. Form 10B) had not been filed along with the return of the income. Due to this reason, an adjustment was made of Rs. 32,98,068/- while passing the Intimation Order u/s 143(1). 4. In appeal before Ld. CIT(A), dismissed the appeal of the assessee, with the following observations: Notices u/s 250 were issued to the appellant on 04 10.2023 and 30.11. 2023. In response the appellant had filed replies on 11.10.2023 and 14 12.2023. The written submissions of the appellant together with the evidences submitted and case laws relied upon by the appellant have been perused and the grounds of appeal filed by the appellant are adjudicated as hereunder. All the grounds of the appeal pertain to disallowance of exemption u/s. 11 for reasons of delay in filing of Form 10B and hence are adjudicated unanimously. The Exemption u/s 11 will be given only if the appellant filed Form 10B before filing the Return of income. In this case Form 108 has not been filed by the appellant within the due date for filing the Return of income. While the due date was 30.09.2018 the Form 100 had been filed only on 29.10.2018. Hence the denial of claim of exemption u/s 11 by the CPC in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Income-tax [2022] 143 taxmann.com 418 (Ahmedabad -ITAT) (22-07-2022] perfectly to the instant case of our appellant. As per CBDT Circular No. 273, dated 3-6-1980, CBDT had authorized only the jurisdictional Commissioner/Director of Income-tax to condone delay in filling Form 10B, and Commissioner (Appeals) did not have any power under section 119(2)(b) to condone delay in filling Form 10B. 5. The assessee is in appeal before us against the aforesaid order passed by Ld. CIT(A). Before us, the counsel for the assessee submitted that the disallowance was made only for the reason that audit report applicable for trust was not filed before the due date of filing of income tax return. Therefore, the only reason why the disallowance was made/the application of income was denied to the assessee trust only for the reason that audit report was not filed by the assessee along with return of income. However, the said audit report was filed before the intimation under section 143 (1) of the Act was passed by the Department. The counsel for the assessee submitted that it was a pure procedural lapse and this fact has also not been disputed that the audit report was prepared before the due date of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Bombay) , the High Court held that where assessee-trust filed Form No. 10 beyond due date and assessee s auditor admitted to oversight that he did not consider provisions of Rule 17 and was under bona fide impression that since factum of accumulation of receipts was reported in audit report in Form No.10B a separate statement in Form No. 10 was not required, in view of fact that delay was not intentional, assessee could not be prejudiced on account of an ignorance of rules admitted by professional engaged by assessee and thus, delay was to be condoned. 7.2 In the case of Social Security Scheme of GICEA v. CIT 147 taxmann.com 283 (Gujarat) , the Assessee a Public Charitable Trust had been filing returns of income in time along with audit report under section 12A(1)(B). For relevant assessment year 2016-17, assessee obtained audit report from Chartered Accountant well before time, however, same could not be uploaded along with return of income inadvertently. In absence of any audit report, Central Processing Centre had not granted exemption under section 11 which otherwise was available to it since many years and resultantly demand was raised. The Assessee therefore filed a rectific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nting to Rs. 5000/- under section 234F of the Act, being penalty for delayed filing of income tax return. In this regard, the counsel for the assessee submitted that the assessee trust had filed its return of income on 26 September, 2018. The counsel for the assessee submitted that the due date of filing of return for the impugned year under consideration was 30th day of September, 2018. However, the CPC Bengaluru considered the date of filing of return as 31st August, 2018 on an incorrect assumption of facts and thereby levied fee for delayed filing of return of income amounting to Rs. 5000/-under section 234F of the Act. 10. On going through the facts of the case, we observe that as per Explanation 2(a)(ii) of section 139(1) of the act, the due date for filing the Income-tax return in case of a person (other than a company) whose accounts are required to be audited under this Act or under any other law for the time being in force, is 30th day of September of the assessment year. Accordingly, due date for filing the Income-tax return in the case of appellant-trust, for AY 2018-19, as per section 139(1) of the act, is 30th September, 2018. Further, from the facts of the case, we ob ..... 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