TMI Blog2021 (1) TMI 1090X X X X Extracts X X X X X X X X Extracts X X X X ..... of exemption from the assessment year 2019-20 onwards. While respondent No.1 was correct in rejecting the application for the assessment year 2019-20 as being time-barred, it certainly fell in error in not considering the said application for subsequent assessment years i.e. for assessment year 2020-2021 and onwards. Because even if the application was fled on 31.10.2019 which was belated for the assessment year 2019-20, it was before the prescribed date for the subsequent assessment year i.e. assessment year 2020-2021 and thereafter as it had been fled much before the cut of date of 30.09.2020. We feel that even at this stage petitioner may approach CBDT under section 119(2)(b) seeking a special order to respondent No.1 to condone the delay in fling the application for exemption under section 10(23C)(vi) of the Act for the assessment year 2019-20, there being admitted delay of 31 days in fling the application for the said assessment year, and thereafter to deal with the said application/ claim on merit in accordance with law. Since we have taken the above view, it may not be necessary to deal with the contention relating to alternative remedy. Having regard to the above a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ell as reports of audit for the assessment year 2019-20 from 30.09.2019 to 31.10.2019. 5. With a view to avail exemption under section 10(23C)(vi) of the act for the assessment year 2019-20 and onwards, petitioner fled the related application in Form No.56D before Commissioner of Income Tax (Exemptions), Pune i.e. respondent No.1 on 31.10.2019. Petitioner has explained that due to exceptional situation prevailing in Kolhapur region because of flood, it was not possible to complete the audit of the accounts of the petitioner before the said date which caused delay in fling the application. 6. Responding to letter dated 26.06.2020 of respondent No.1, petitioner submitted a detailed reply providing all the details and documents as sought for vide its reply dated 29.06.2020. 7. However, notice dated 15.09.2020 was issued to the petitioner by respondent No.1 informing the petitioner that its application fled on 31.10.2019 was not within the prescribed time limit; such application was required to be fled on or before 30th September of the relevant assessment year from which exemption was sought. However, referring to the earlier letter dated 26.06.2020 it was stated that the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich date in the instant case would be on or before 30.09.2019. However, there is no provision for condonation of delay in the event of belated fling of such application. Therefore, request of the petitioner to condone the delay in fling the application in Form No.56D could not be considered. It is for such reason that the application of the petitioner fled in Form No.56Don 31.10.2019 for grant of exemption under section 10(23C)(vi) of the act for the assessment year 2019-20 onwards had to be rejected vide the order dated 29.09.2020. 11.1 In this connection reliance has been placed on the decisions of the Orissa High Court in the case of Roland Educational and Charitable Trust Vs. Chief Commissioner of Income Tax, (2009) 309 ITR 50 as well as two other decisions of the Andhra Pradesh High Court and Madras High Court. 11.2 It is further contended that it is not within the powers and jurisdiction of the Commissioner of Income Tax to condone the delay in fling of Form No.56D unless the CBDT confers such powers to the Commissioner of Income Tax which has not been done till date. 11.3 Referring to the CBDT order dated 27.09.2019 relied upon by the petitioner it is conten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent year 2018-19 or for any subsequent assessment years and decide such application on merit. Therefore, learned counsel would contend that respondent No.1 was not justified in rejecting the application of the petitioner as being time barred. 13. Learned counsel for the respondents firstly submits that contention of the petitioner that the impugned order is not amenable to appellate jurisdiction of the Income Tax Appellate Tribunal is not correct. An order rejecting an application for exemption under section 10(23C)(vi) of the act as being time-barred would be an order within the meaning of section 253(1)(f) of the act and, therefore, such an order can be appealed against before the Income Tax Appellate Tribunal. 13.1 Referring to the CBDT Circular No.19/2020 dated 03.11.2020 he submits that this circular is not at all applicable in the case of the petitioner as it deals with belated fling of audit report in Form No.10BB which has been explained by the CBDT itself vide subsequent clarification dated 07.12.2020. 13.2 Without prejudice to his above contentions, Mr. Walve submits that petitioner may approach the CBDT under section 119(2)(b) of the act and seek an order for co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oviso, in case the fund or trust or institution or any university or other educational institution or any hospital or other medical institution referred to in the first proviso makes an application on or after the 1st day of June, 2006 for the purposes of grant of exemption or continuance thereof, such application shall be made on or before the 30th day of September of the relevant assessment year from which the exemption is sought. For ready reference, the above provisions are quoted hereunder :- Incomes not included in total income. 10. In computing the total income of a previous year of any person, any income falling within any of the following clauses shall not be included - * * * * * (23C) any income received by any person on behalf of - * * * * * (vi) any university or other educational institution existing solely for educational purposes and not for purposes of profit, other than those mentioned in sub-clause (iiiab) or sub-clause (iiiad) and which may be approved by the prescribed authority; * * * * * Provided also that where the total income, of the fund or trust or institution or any university or other educational institution or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t assessment year from which the exemption is sought. 18. Adverting to the 10th proviso, we find therefrom that furnishing of the report of audit in the prescribed form has to be along with the return of income for the relevant assessment year. So such audit report has to accompany a return on income for the relevant assessment year. On the other hand, as per the 16th proviso, in the event of an university or other educational institution etc. seeking exemption under section 10(23C)(vi) of the act, such an application post 01.06.2006 would have to be made on or before the 30th day of September of the relevant assessment year from which the exemption is sought. In the instant case, the relevant assessment year is the assessment year 2019-20. So the cut of date or the date of limitation was 30.09.2019. 19. To complete the narrative, it may be mentioned that the 10th proviso to clause (23C) of section 10 is referred to in rule 16CC of the Income Tax Rules, 1962 (briefly the Rules hereinafter) which says that the report of such audit which is required to be furnished under the 10th proviso to clause (23C) of section 10 shall be in Form No.10BB. Format of Form No.10BB is provide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ders it desirable or expedient so to do for avoiding genuine hardship in any case or class of cases by general or special order, authorise any income tax authority, not being a Commissioner (Appeals), to admit an application or claim for any exemption, deduction, refund or any other relief under the act after the expiry of the period specified under the act for making such application or claim and deal with the same on merit in accordance with law. Thus, in an appropriate case CBDT can pass a general order or a special order; by such an order it can authorise any income tax authority not being a Commissioner (Appeals) which would include Commissioner of Income Tax (Exemptions); to admit an application or claim for any exemption etc. after expiry of the period specified under the act; and to deal with the same on merit in accordance with law. 24. Having noticed the above, we may now examine the order dated 27.09.2019 passed by the CBDT. It is an order under section 119 of the act. On going through the same, we find that it is concerned with assessment year 2019-20 for which year the due date for fling income tax return was 30.09.2019 in respect of assessees covered under clause ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation for grant of exemption under section 10(23C)(vi) of the act by the Commissioner of Income Tax (Exemption) To that extent respondent No.1 was justified in rejecting the application for the assessment year 2019-20. However, as per the version of the respondents themselves the application for exemption of the petitioner was not confined to assessment year 2019-20 only. It was an application for grant of exemption from the assessment year 2019-20 onwards. While respondent No.1 was correct in rejecting the application for the assessment year 2019-20 as being time-barred, it certainly fell in error in not considering the said application for subsequent assessment years i.e. for assessment year 2020-2021 and onwards. Because even if the application was fled on 31.10.2019 which was belated for the assessment year 2019-20, it was before the prescribed date for the subsequent assessment year i.e. assessment year 2020-2021 and thereafter as it had been fled much before the cut of date of 30.09.2020. 28. That apart, we feel that even at this stage petitioner may approach CBDT under section 119(2)(b) seeking a special order to respondent No.1 to condone the delay in fling the applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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