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2024 (1) TMI 1192 - GUJARAT HIGH COURTExemption u/s 11 - delayed submission of Form 10B - mandatory v/s discretionary requirements - requirement of furnishing declaration for claiming exemption - audit report in Form No. 10B was not e-filed along with the return of income - non reliance of Supreme court decision - as submitted assessee ought to have filed the audit report in Form 10B before the due date of filing of the return to claim the exemption - ITAT allowed exemption - HELD THAT:- Reliance placed on the decision of M/s. Wipro Limited [2022 (7) TMI 560 - SUPREME COURT] would not be applicable as in the facts of the present case, the assessee has claimed the exemption u/s 11 read with Section 12A(1)(b) of the Act which required the assessee to file audit report in Form of 10B which has nothing to do with claiming 100% exemption of total income in respect of newly established 100% Export Oriented Undertakings under Section 10B. Section 10B(8) requires the assessee to file an undertaking before the due date of furnishing of return of income under sub-section (1) of Section 139 before the AO in writing that the provision of Section 10B 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. Considering the language of the provision of Section 10B(8) of the Act, the Hon’ble Supreme Court in M/s. Wipro Limited [supra] held that it was mandatory on part of the assessee to file declaration before the due date of filing of return under sub-section (1) of Section 139 of the Act, whereas 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 under Section 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 would be directory. Tribunal has rightly followed the decision of this Court in case of Sarvodaya Charitable Trust [2021 (1) TMI 214 - GUJARAT HIGH COURT] as well as Social Security Scheme of GICEA [2022 (12) TMI 1172 - GUJARAT HIGH COURT] to uphold the decision of the CIT (Appeals), wherein this Court has held that the approach of the authority in such type of cases should be equitable, balancing and judicious and respondent No. 2 might be justified in denying the exemption under Section 11 of the Act being a technical in nature by rejecting such application. But, in the facts of the case, when the assessee has already uploaded the audit report in Form 10B as required under Section 10(23)C r.w.s. 12A(1)(b) of the Act before the Assessing Officer prior to the original assessment order under Section 143(3) passed on 06th April, 2021. Decided in favour of assessee.
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