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TMI Blog2024 (7) TMI 221X X X X Extracts X X X X X X X X Extracts X X X X ..... Trust [ 2023 (12) TMI 1295 - ITAT AHMEDABAD] case held that procedural requirements like filing Form 10B should not override the substantive claim of exemption, when the assessee has substantially complied with the requirements. It has been held by various Courts that the requirement of filing Form 10/10B is merely directory in nature and failure to furnish Form 10/10B before due-date prescribed u/s 139(1) of the Act cannot be so fatal so as to deny they very claim of exemption u/s. 11(2). We find that the delay in filing Form 10B was due to technical issues and was beyond the control of the assessee. The procedural requirement should not deny the substantive claim of exemption u/s 11 - Decided in favour of assessee. - Shri T.R. Senthil Kumar, Judicial Member And Shri Makarand V. Mahadeokar, Accountnat Member For the Assessee : Shri D.K. Parikh, AR For the Revenue : Shri Atul Pandey, Sr.DR ORDER PER SHRI MAKARAND V. MAHADEOKAR, AM: This appeal by the Revenue arises from the order of the Office of Commissioner of Income Tax (Appeals), Addl/JCIT (A) 6, Chennai [hereinafter referred to as CIT(A) ] dated 08-12-2023, for the Assessment Year (AY) 2022-23 against the intimation/order p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red in admitting alternate claim of assessee u/s. 10(23C)(iiiad) without providing opportunity of hearing to the Assessing Officer. 2. Whether, on the facts and circumstances of the case, Ld.CIT(A) has erred in allowing the exemption u/s 10(23C)(iiiad), when as per memorandum of Association (MOA) of trust, it is not existing solely for educational purpose, which is against the principle laid down by Hon'ble Supreme Court of India, New Delhi in the case of New Noble Education Society Vs. Chief Commissioner of Income tax in [2022] 143 taxmann.com 276(SC). Grounds raised by Assessee in the Cross Objection: 1. The Id. CIT (A) erred in law and on facts in not allowing the ground of appeal regarding alleged delay in filing Form No: 10B which was uploaded but due to technical hitch and system problem same could not be downloaded and that exemption claimed u/s 11(1)(a) ought not to be rejected. 2. The Id CIT (Appeals) also erred in law and on facts in not appreciating that even if Form No: 10B is not downloaded in time, filing of form No: 10B is not mandatory but procedural requirement and hence exemption claimed u/s 11 /12 of IT Act ought to have been allowed. It be so allowed now. 3. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able on record. In our considered opinion, the Ld.CIT(A) erred in admitting the alternate claim of the assessee under section 10(23C)(iiiad) of the Act without providing an opportunity of hearing to the Assessing Officer. The Ld.CIT(A) erred in not allowing the ground regarding the alleged delay in filing Form 10B, which was uploaded, but not downloaded due to technical issues. The Ld.CIT(A) erred in not appreciating that the filing of Form 10B is not mandatory but a procedural requirement, and thus, the exemption claimed under sections 11/12 of the Act should be allowed. 6.1. We have considered the reliance placed by the assessee on the decision of the Co-ordinate Bench in the case of Ramji Mandir Religious and Charitable Trust (supra), which held that procedural requirements like filing Form 10B should not override the substantive claim of exemption, when the assessee has substantially complied with the requirements. The relevant portion of the said decision of the Tribunal is reproduced hereunder: 4.3.4 The question of delayed filing of audit report, after the return of income has been filed, has been scrutinized by various courts of law. It has generally been held that if the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee under section 11. Therefore, compliance of the requirement of the Act will have to be any time before the assessment proceedings. 4.3.5 In the instant case the appellant/assessee e-filed the Form 10 on 13-3-2020. The above fact is confirmed during the appellate proceedings from CPC 2.0 portal. As per the case laws mentioned above, the Hon`ble Courts took the view that the benefit of exemption should not be denied merely on account of delay in furnishing the audit report and it is permissible for the assessee to produce the audit report at a later stage, either before the AO or the appellate authority. This view has been reiterated by the Hon`ble Court in the recent judgement of Hon`ble Gujarat High Court in the case of Sarvodaya Charitable Trust v. Income-tax Officer. (Exemption) [2021] 125 taxmann.com 75 (Gujarat). 4.3.6 In view of the above discussion, I am of the view that the assessing officer erred in not allowing deduction to the appellant/assessee for the amount accumulated under the provisions of section 11 of the Income-tax Act, 1961. It was merely a procedural lapse on part of assessee to not file Form 10 along with return of income. The appellant/assessee upl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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