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TMI Blog2024 (10) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... , in the facts of the said case the assessee filed such undertaking along with the revised return under Sub-section (5) of Section 139 and in such facts, the Hon ble Supreme Court held that the twin conditions prescribed u/s 10B (8) of the Act was mandatory to be fulfilled and it cannot be said that though the declaration is mandatory, the filing of such declaration within the due date of filing of return under Sub-section (1) of Section 139 of the Act would be directory. Reference to the aforesaid decision has no connection whatsoever remotely to the facts of the present case and therefore, in the facts of the present case, the Tribunal has rightly followed the decision of this Court in case of Sarvodaya Charitable Trust v. Income Tax Offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 60A of the Income Tax Act, 1961 (for short the Act ), the appellant-Revenue has proposed the following questions as substantial questions of law arising out of order dated 19th May, 2023 passed by the Income Tax Appellate Tribunal-Ahmedabad, C Bench (for short the Tribunal ) in ITA No. 410/Ahd/2022 for Assessment Year 2017-18: (i) Whether in the law and facts and circumstances of case, Hon'ble Income Tax Appellate Tribunal was right in holding that furnishing of audit report in form 10B is a procedural provision in spite of specific provisions of clause (b) of sub-section (1) of Section 12A of the Income Tax Act, 1961 and in view of the decision of Hon'ble Supreme Court of India in the case of Wipro in Civil Appeal No. 1499 of 2022 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 of the Act to the assessee and determined the tax of Rs. 1,52,42,281/-. 3.4. Being aggrieved by this, the assessee filed Aappeal before the CIT(A). After filing of the Appeal, the assessee electronically uploaded Form 10B on 27.02.2021. During the appellate proceedings, the assessee admitted that there was a procedural delay in furnishing Form 10B and the delay was on account of various technical issues. 3.5. The CIT (A) vide order dated 02.09.2022 allowed the Appeal of the assessee stating that if audit report under Section 12 (1) (b) of the Act is filed at any stage before the completion of assessment or even at the appellate stage, then the CPC cannot deny exemption under Section 11 of the Act and directed Assessing Officer to allow cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f cases should be equitable, balancing and judicious. Technically speaking, respondent No.2 might be justified in denying the exemption under Section 11 of the Act by rejecting such condonation application, but an assessee, which is a public charitable trust for past 30 years which substantially satisfies the conditions for availing such exemption, should not be denied the same merely on the bar of limitation especially when the legislature has conferred wide discretionary powers to condone such delay . Applying the said principle, the petition is allowed. The impugned order passed by respondent dated 12.3.2021 is quashed and aside. The impugned order of rectification under Section 154 of the Act dated 25.1.2019 is also quashed and set asid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 12A (1) (b) of the Act which required the assessee to file Audit Report in Form of 10B of the Act which has nothing to do with claiming 100% exemption of total income in respect of newly established 100% Export Oriented Undertakings under Section 10B of the Act. Section 10B (8) of the Act requires the assessee to file an undertaking before the due date of furnishing of return of income under sub-section (1) of Section 139 of the Act before the Assessing Officer in writing that the provision of Section 10B of the Act may not be made applicable to him, otherwise the provision of this Section shall not apply to him for any of the relevant assessment year. 6. Considering the language of the provision of Section 10B (8) of the Act, the Hon b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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