9911796707
TMI Blog2024 (9) TMI 217X X X X Extracts X X X X X X X X Extracts X X X X ..... , the same cannot be discarded from purview of genuine hardship. The reasons assigned by the respondent are also not proper inasmuch as the respondent has adopted a pedantic approach in rejecting the application to condone the delay. Thus, it is apparent that the respondent instead of considering the technical compliance of filing audit report which was issued by the Chartered Accountant on 07.05.2015 even prior to the due date of filing of the return which could not be uploaded, ought to have condoned the delay. The petition succeeds and accordingly allowed. The impugned order is hereby quashed and set aside and the respondent is directed to pass an order to condone the delay in filing the Form 10B i.e. Audit Report so as to enable the petitioner to get the exemption u/s 11. - HONOURABLE MR. JUSTICE BHARGAV D. KARIA AND HONOURABLE MR. JUSTICE NIRAL R. MEHTA Appearance : For the Petitioner(s) No. 1: Mr Tushar Hemani, Ld. Sr. Adv With Ms Vaibhavi K Parikh (3238). For the Respondent(s) No. 1: Ms Maithili D Mehta (3206). ORAL JUDGMENT (PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA) 1. Heard learned Senior Advocate Mr. Tushar Hemani with learned advocate Ms. Vaibhavi Parikh for the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act against the intimation under Section 143 (1) of the Act which was rejected on 20th April, 2017. 4.8. The petitioner thereafter filed the audit report in Form 10B electronically on 28.03.2018. 4.9. The petitioner filed another online Rectification Application under Section 154 of the Act on 07.04.2018 which was also rejected on 23.04.2018 by the Assessing Officer on the ground that the petitioner failed to file the Form 10B electronically till the expiry of the time limit for filing of the return of income. 4.10. The petitioner filed an Appeal against the order of rectification before the CIT (Appeals) electronically on 08.08.2018. 4.11. The petitioner thereafter filed application under Section 119 (2) (b) of the Act before the respondent on 04.12.2018 for condonation of delay in filing Form 10B. 4.12. The petitioner filed another on-line Rectification Application under Section 154 of the Act on 08.12.2018 which was also rejected on 29.01.2019. 4.13. The respondent issued a show-cause notice dated 25.01.2019 calling upon the petitioner to show cause as to why the application for condonation of delay in filing Form 10B should not be rejected as the reasons given by the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... culars issued by the CBDT in as much as the petitioner has shown the sufficient cause for genuine hardship on account of the ill health of the Chartered Accountant and the petitioner-Trust is doing charitable activities since 1979 and should not be deprived from exemption under Section 11 of the Act only on non-filing of Form 10B. 5.4. It was therefore submitted that the impugned order passed by the respondent is liable to be quashed and set aside. 6.1. On the other hand, learned Senior Standing Counsel Ms. Maithili Mehta for the respondent referred to and relied upon the following averments made in the affidavit-in-reply filed on behalf of the respondent : 6. It is submitted that the assessee then filed application u/s 119 (2) (b), seeking condonation of delay in filing audit report in form no.10B. The CIT (Exemption) under order dated 09.09.2019, rejected the application seeking condonation of delay against which, present petition is filed. The reply to the petition is as under: 6.1. With reference to contents of para 3.1 and 3.2, it is submitted that the application of the assessee seeking condonation of delay was rejected by passing speaking order therefore present petition is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the order dated 09.09.2019. 6.7. With reference to contents of para 3.6. to 3.6.2, it is submitted that the petitioner trust is duly registered under Section 12 A on 7.8.1979. They have been filing return of income regularly and being old trust expected to be well aware about the legal provisions of the Act. As stated earlier in absence of any audit report due verification in relation to the exemption claimed by the assessee could be verified. 6.8. With reference to contents of para 3.6.3, it is submitted that the provision of filing form no. 10B along with return of income is not new insertion of provision. The discipline on time limit regarding uploading audit report in the form no. 10 B online has to be complied and respected. The casual approach of the assessee may result into non fulfilling time limit mandated under the provisions of the Act. Therefore, there is no illegality in the order dated 09.09.2019. 6.9. With reference to contents of para 3.7, it is submitted that filing, of form no.10B is also not merely procedural formalities. From the wording of Section 12A (b) of the Act where total income of the trust or institution as computed under this Act without giving effec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elay u/s 119 (2) (b) of the Act. The Commissioner will while entertaining such belated applications in filing Form No. 10B shall satisfy themselves that the assessee was prevented by reasonable cause from filing such application within the stipulated time. 9. Though the aforesaid circular is issued for Assessment Years 2016-17 and 2017-18, the same analogy would apply for Assessment Year 2015-16 also and as the petitioner has shown the inadvertent delay on part of the clerical staff of the Chartered Accountant who was suffering from brain tumor, the same cannot be discarded from purview of genuine hardship. The reasons assigned by the respondent are also not proper inasmuch as the respondent has adopted a pedantic approach in rejecting the application to condone the delay by observing as under : 8. Having gone through the above facts, I am of the opinion that the assessee has not shown any genuine hardship on account of which the lapse occurred. It has merely taken the excuse on account of the clerical staff of Chartered Accountant that too without any supporting evidences. By assigning any work to any external agency the onus of statutory duty does not get shifted. As per provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
