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TMI Blog2024 (11) TMI 382X X X X Extracts X X X X X X X X Extracts X X X X ..... fit of Section 11 of the Act if the assessee is otherwise found eligible - Appeal of the assessee is allowed. - Dr. Manish Borad, AM And Shri Sonjoy Sarma, JM For the Assessee : Shri Sunil Surana, AR For the Revenue : Shri Gautam Patra, CIT DR ORDER PER DR. MANISH BORAD, AM: This appeal at the instance of the assessee is directed against the order of Commissioner of Income-tax (Appeals) [learned CIT (A)] dated 22nd February, 2024, which is arising out of the intimation under Section 143(1)(a) of the Income-tax Act, 1961 (the Act) dated 31st January, 2020. 01. Though, assessee has raised four grounds but the sole grievance is against the order of learned CIT (A) confirming the action of CPC Bangalore, denying the claim of exemption under S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x return. The assessee also filed a condonation petition under Section 119(2)(b) to learned Pr. Chief Commissioner of Income Tax for condonation of delay. However, since the delay was not condoned until the time when the impugned order was framed, the learned CIT (A) confirmed the action of CPC. Before us, the learned Counsel for the assessee has referred to various decision of this Tribunal as binding precedence and on going through the order of this Tribunal in case of Manav Seva Trust (supra), we find that similar issue has been adjudicated where benefit of section 11 of the Act was denied for delay in filing form 10B. This Tribunal held in favour of the assessee holding that filing of form 10B is merely a procedural requirement and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f oversight by the Chartered Accountant, the delay in filing of Form-10B deserves to be condoned. In fact, some relevant portions from the said order deserves to be extracted as under: ■ Admittedly, Petitioner is a charitable trust and had been filing its returns and Form 10B for AY 2015-16, for AY 2017-18 to AY 2021-22 within the due dates. On this ground alone, delay condonation application should have been allowed because the failure to file returns for AY 2016-17 could be only due to human error. Even in the impugned order, there is no allegation of mala fide. As held by the Gujarat High Court in Sarvodaya Charitable Trust v. ITO (Exemption) [2021] 125 taxmann.com 75/278 Taxman 148, the approach in the cases of the present type sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er did not suo moto realize its mistake and filed a condonation request only after Centralised Processing Centre ( CPC ) sent an intimation about non-filing of Form 10B. [Para 8] ■ Having considered the matter in its entirety, one is satisfied that the delay was not intentional or deliberate. Petitioner cannot be prejudiced on account of an ignorance or error committed by professional engaged by Petitioner. Respondent No.1 ought to have exercised the powers conferred. [Para 9] ■ In the circumstances, this Writ Petition has to be allowed and is hereby allowed in terms of prayer clause. ■ Since the delay has been condoned, Respondent shall process Petitioner s returns in accordance with law by giving effect to this order on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ploaded on 30.03.2019 which is even after the date of filing the return of income on 15.11.2018. Now, before us, it has been contended by the ld. counsel for the assessee that filing of audit report is directory in nature and even if report is submitted in time before the conclusion of the assessment proceedings, the same needs to be considered. Though the assessee referred to the various decisions, we find it pertinent to refer to the judgment of the Hon ble Gujarat High Court in the case of Sarvodaya Charitable Trust vs. ITO(Exemption) (supra) wherein Para 32 of the said judgment reads as follows: 32. We may also refer to the decision of this Court in CIT v. Gujarat Oil and Allied Industries Ltd. [1993] 201 ITR 325 (Guj), wherein it is he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling of the return of income but as claimed by the assessee due to technical glitches, the report was uploaded after filing the return of income. 15. Though the Hon ble Court holds that the report should be considered even filed in the course of assessment proceedings, or before in appellate authority, however, we notice that in the instant case, the case of the assessee was not selected for scrutiny assessment and it was mere processing of return by the computer with the set program. Had it been the case of scrutiny proceeding u/s 143(3) of the Act, the case could have been different. The ld. A.O may had an opportunity to go through the audit report. But still when the issue came before ld. CIT(A) who also possesses co-terminus power with ..... X X X X Extracts X X X X X X X X Extracts X X X X
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