9911796707
TMI Blog2023 (4) TMI 1377X X X X Extracts X X X X X X X X Extracts X X X X ..... ated 30/08/2022 arising in the matter of assessment order passed under s.143(3) of the Income Tax Act, 1961 (here-in-after referred to as the Act ) relevant to the Assessment Year 2015-16. 2. The only issue raised by the assessee is that the learned CIT(A) erred in confirming the exemption/deduction claimed under section 11(2) of Act for Rs. 8,09,518/- only. 3. The facts in brief are that the assessee is a trust registered under section 12 of the Act since A.Y. 2005-06. The assessee in the return filed for the year under consideration claimed exemption of Rs. 8,09,518/- under section 11(2) of the Act on account of amount accumulated for specific purpose. The Central Processing Cell (CPC) of Income tax in the intimation processed under section 143(1) of the Act disallowed the impugned exemption/deduction on the ground Form 10 was not furnished along return of income. 4. The aggrieved assessee preferred an appeal before the learned CIT(A). The National Faceless Appeal Center (NFAC) confirmed the intimation order by observing as under: 5. I have considered the submission made before me. The main contention of the assessee is that the denial of exemption claimed u/s.11(2) should be rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see has not filed Form-10 with respect to accumulation of income along with return of income filed u/s 139 of the Act, but the same was e-filled belatedly as on 27th December 2018. The CPC in the intimation order under section 143(1) of the Act, dated 11th October 2016 denied the exemption claimed under section 11(2) of the Act in the absence of Form-10 which also confirmed by the learned CIT(A)-NFAC. Thus, the question before us is whether the assessee can be denied the benefit of section 11 of the Act merely for the reason that Form-10 was filed belatedly i.e. after filing of return of income. The question in similar facts and circumstances has been answered in the favour of the assessee by the coordinate bench of this Tribunal in the case of Shree Harsaniji Public Charitable Trust v. Income-tax Officer (Exemption) reported in 142 taxmann.com 456 wherein it was held as under: 8. We have given our thoughtful consideration and perused the material available on record. At the first instance, the assessee was denied deduction under section 11(2) for the reason that Form No. 10 was not accompanied along with return of income, thereby 143(1) intimation was passed. It is thereafter the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing contained in any other provision of this Act, the return shall be treated as an invalid return and the provisions of this Act shall apply as if the assessee had failed to furnish the return : Provided that where the assessee rectifies the defect after the expiry of the said period of fifteen days or the further period allowed, but before the assessment is made, the [Assessing] Officer may condone the delay and treat the return as a valid return. 11. In our considered view, the AO as well as CIT(A) are not ready to follow 67 years old Circular and the provisions viz. sub-section (9) of section 139 of the Act, in letter and spirit. We also find that the ld.CIT(A), NAFC has simply extracted the written submissions filed by the assessee, wherein Circular No. 273 dated 3-6-1980 was also reproduced in which the Board has clearly authorized Commissioners to admit applications under section 11(2) of the Act read with rule 17 of the Incometax Rules, 1962 from persons deriving income from property held under trust wholly for charitable or religious purposes for accumulation of such income to be applied for such purpose in India when the aforesaid application (herein Form No. 10) are file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9A for the Asst. Year 2016-17. Para-4 of the above circular reads as under: 4. Representations have been received by the Board/field authorities stating that Form and Form No. 10 could not be filed in the specific time for AY. 2016-17, which was the first year of e-filing of these forms. It has been requested that the delay in filing of Form No. 9A and Form No. 10 may be condoned under section 119(2) (b) of the Act. 15. Thus, going by the insertion of new sub-clause (c) of section 11(2) of the Act, the assessee is required to furnish Form No. 10 along with Return of Income from the Asst. Year 2016-17 onwards. As per the CBDT Circular No. 7 of 2018, representation from the assessee that Form No. 9A and 10 could not be filed in specific time for the Asst. Year 2016-17, which were the first year of efiling of these forms, and also to condone such delay by invoking section 11(2)(b) of the Act. All the above provisions circulars make it clear that non-filing or delay in filing the Form No. 10, there was no time limit prescribed under the Act for the present Asst. Year 2015-16. Following the Supreme Court judgments, if the Form No. 10 is filed before the assessing authority before compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us, in the present case the immediately after the intimation order was passed on 15-9-2016, the assessee realized the mistake of not upholding Form No. 10 along with Return of Income, however, uploaded the same on 2-11-2017 and filed rectification application on 6-10-2017 requesting to rectify the mistake in the intimation. But the DCIT(CPC) simply rejected the rectification by his order dated 31-10-2019 by holding that there is no prima facie error in the order sought to be rectified, and simply rejected the rectification application filed by the assessee. We further observe that the ld.CIT(A) even gone one step further by dismissing the appeal without considering Circulars issued by the CBDT, as well as Hon'ble Supreme Court's judgment and other High Courts' judgments placed by the assessee before the ld.CIT(A), NFAC. We further observe that in spite of Circular 14 of 1955, the Departmental Officers are taking advantage of the ignorance of the assessee, instead of assisting the taxpayers more particularly in the matter of claim of relief, issuance of refund, but the officers had not taken any initiative in guiding the taxpayers in accordance with law. This attitude wi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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