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TMI Blog2024 (6) TMI 867X X X X Extracts X X X X X X X X Extracts X X X X ..... ovided u/s 139(1) and Form No. 10 was also filed manually before filing of the return before the Territorial Jurisdictional A.O, therefore, the delay even if at all was caused in electronically filing the Form-10 for rectification, the same ought to have been condoned in the facts of the case. As relying on case of Unviersity of Burdwan C/o S. N. Ghosh Associates [ 2022 (11) TMI 1494 - ITAT KOLKATA] and the fact that the assessee has filed the form in manually the same is directed to be considered and the assessee is directed to upload the form if not done electronically so far, within 30 days from the receipt of this order. With this observation the appeal of the assessee is allowed. - DR. S. SEETHALAKSHMI, JJUDICIAL MEMBER SHRI RATHOD KAMLESH JAYANTBHAI, ACCOUNTANT MEMBER For the Appellant : None For the Respondent : Ms. Nidhi Nair, Sr. DR ORDER PER: RATHOD KAMLESH JAYANTBHAI, AM 1. This appeal filed by assessee is arising out of the order of the National Faceless Appeal Centre, Delhi dated 23.11.2022 [here in after ld.CIT(A)(NFAC) ] for assessment year 2016-17 which in turn arise from the order dated 06.08.2018 passed under section 143(1) of the Income Tax Act, by the AO, Jodh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Form No. 10 manually in time prescribed u/s 139(1) before Territorial Jurisdictional A.O. The same was filed on21-04-2016. 6. That in the facts and in the circumstances of the case that by the CBDT Circular u/s 119, being, Circular No. 6/2020, it was directed by CBDT to condone the delay for the Asst. Years 2016-17, 2017-18 2018-19 and to accept Forms 9A, 10by condoning the delay, if the ROI filed on or before 31 March of the respective asst. years. In this case since the ROI was filed within time provided u/s 139(1) and Form No. 10 was also filed manually before filing of the return before the Territorial Jurisdictional A.O, therefore, the delay even if at all was caused in electronically filing the Form-10 for rectification, the same ought to have been condoned in the facts and in the circumstances of the case as well as CBDT Circular, in not doing so the Id. CIT(A) has erred in law and facts. 7. That the CIT(A) has erred in law and in facts in not deciding this appeal, along with the second appeal filed against the rectification order u/s 154 simultaneously with this appeal relating to this aspect only. In not doing so, the ld. CIT(A) erred in law and facts, firstly in not fol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... matter and was to be rectified by the A.O at CPC itself. In not doing so the ld. CIT(A) erred in law and facts. Reliance is placed on the under mentioned decision in the case of University of Burdwan C/o S.N. Ghosh Associates vs. ACIT (ITAT Kolkata) in ITA No. 362/Kol/2022 Asst. Yr. 2018-19 date of order 24-11- 2022. 12. That the ld. CIT(A) also erred in law facts in acting injudiciously by confirming the A.O's reasoning when he held as under:- Reason for Rectification: As Seen from the e-filed return of income. Deduction/Exemption under section 11(2) is not allowed. assessee has filed Form-10 after Due Date for filing the Return of Income as per Proviso to rule 12(2) read with Rule 17 of the Income Tax Rules. Note: Fresh claim of addition/reduction of income or other details in the return shall not be made in Rectification Request. The appellant grievance was that since no reason was given nor any mandatory opportunity was provided before varying the returned income of the appellant u/s 143(1) then to add a sum of Rs. 14,00,000/- in the ROI was contrary to law and without jurisdiction and in the two rectification orders two different reasons were given for sustaining the vari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lance c/d 3798300.00 by amount transferred From Mandirji A/c 1400000.00, 12798300.00, 127983 00.00. Thus during the year under consideration against receipt of Rs. 3900582/- total expenditures were incurred towards Rs. 1,06,42,231 Mandirji Jirnodhar. Thus in this way the total receipt for the specific purposes for this year was fully utilized for Jirnodhar purposes. That is this year corpus donation was fully utilized towards the purposes of corpus. The assessee has however also transferred Rs. 14 lacs form Mandirji Jirnodhar A/c to Jirnodhar Reserve Fund Account which can otherwise also be understood that out of Rs. 90 lacs withdrawn towards expenses for the Jirmodhar purposes this sum of Rs. 14 lacs was retransferred, Since the money had been regularly transferred to Jirnodar Reserve Fund Account every year as in the past hence the assessee in this year also credited the same (Rs. 14 lacs) in the Jirnodar Reserve Fund Account. That while filing the return of income the appellant had disclosed this sum in Reserve created under Sec. 11(2) of the Act as it had been showing in the past for which assessments under Sec. 143(1) had been made in the preceding years without any objection. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llant have been carefully considered. 4.3.1 The appellant submitted in his submission that while sending the intimation u/s 143(1) of the Act to the appellant, the CPC has not mentioned the reason of denial of disallowance u/s 11(2). The appellant filed rectification application before the CPC. The CPC has mentioned the reason of disallowance u/s 11(2) in rectification order u/s 154 of the Act dated 06.08.2018 and the same is as follows: ************** It is seen from the above, the CPC has disallowed the deduction u/s 11(2) due to appellant has filed Form-10 after due date for filing the return of income as proviso to rule 12(2) read with Rule 17 of the Income Tax Rules. 4.3.2 Under section 11 of the Income Tax Act 1961 a charitable or religious organisation is required to apply 85% of its income for charitable/religious purposes. If the organisation fails to apply 85% during the previous year then it can either carry forward the income to the next year and apply such deficit in the next year. The organisation can also accumulate the income for next five years as per the provisions of the Act and Rules thereof. Under the prevailing rules, Form 10 is required to be filed if the org ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fication code, referred to in sub-rule(3), for purpose of verification of the person furnishing the said Forms; and (ii) be responsible for formulating and implementing appropriate security. archival and retrieval policies in relation to Forms so furnished. . 3. In the said rules, in Appendix II,- (a) after Form No.9, the following Form shall be inserted, namely:- .................. (b) for Form No. 10, the following Form shall be substituted, namely:- ................. Notification No. 3/2016 /2015 [F. No. 142/16/2015-TPL] (R. Lakshmi Narayanan) Under Secretary (Tax policy and Legislation) 4.3.3 The appellant stated in his submission that he has filed Form no. 10 before the Jurisdictional Assessing Officer on 21.04.2016 and he filed copy of the same in his submission. As per above CBDT's above notification, it is clear that online Application in Form No. 10 along with the Income Tax Return within the time provided under section 139(1), w.e.f. Assessment Year 2016-17, Form 10 needs to be filed within the due date and at the same time income tax return has also to be furnished within the due date. 4.3.4 In view of the above, it is clear that the appellant failed to file Form No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of order 24.11.2022 wherein the Co-ordinate Bench held that: 8. We have heard the rival submissions, perused the material available on record and gone through the documents placed in the paper book referred by the Ld. Counsel. Admittedly, it is undisputed that assessee had been imparting education and has been claiming exemption u/s. 10(23C)(iiiab) of the Act which has been considered and allowed in the preceding as well as in the subsequent assessment years vis- -vis the impugned year under consideration either in the intimation issued u/s. 143(1) of the Act or assessment completed u/s. 143(3) of the Act. Ld. Counsel has evidently demonstrated that it was an inadvertent mistake which occurred at the end of the assessee in the filing of return where the claim of exemption was made u/s. 10(23C)(vi) of the Act instead of section 10(23C)(iiiab) of the Act. It is also noted that upon receiving intimation u/s. 143(1) of the Act wherein the inadvertent claim made u/s. 10(23C)(vi) was disallowed and remedial measure was taken by the assessee by filing an application u/s. 154 for rectifying the mistake by making a claim under the correct section of sec. 10(23C)(iiiab) of the Act. We note t ..... 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