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TMI Blog2021 (1) TMI 1090X X X X Extracts X X X X X X X X Extracts X X X X ..... awat University, Kolhapur established by an act of the State Legislature of Maharashtra and which became operational on and from 13.07.2017. 4. It is stated that because of heavy rainfall and resultant flood in different parts of the country, Central Board of Direct Taxes (CBDT) passed an order dated 27.09.2019 under section 119 of the Income Tax Act, 1961 (briefly "the act" herein-after) extending the due date for fling of income tax returns as well 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2019 on and from the assessment year 2019-20. Though the application was filed in proper format, it was not fled within the time limit. Referring to the 16th proviso to section 10(23C)(vi) of the act, it is contended that an application for exemption or continuance of exemption under section 10(23C)(vi) of the act has to be fled on or before the 30th day of September of the relevant assessment year from which the exemption is sought which 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 oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court. 12.1 Learned counsel for the petitioner has referred to section 10(23C)(vi) of the act as well as to the 16th proviso thereto and submits that by Circular No.19/2020 dated 03.11.2020 CBDT has made the position clear by authorizing Commissioners of Income Tax to admit belated applications prior to the assessment year 2018-19 or where there is delay of upto 365 days in fling applications for the assessment 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other medical institution shall get its accounts audited in respect of that year by an accountant as defined in the explanation below sub- section (2) of section 288 and furnish along with the return of income for the relevant assessment year, the report of such audit in the prescribed form duly signed and verified by such accountant and setting forth such particulars as may be prescribed. As per the 16th proviso, 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 univ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h accountant and setting forth such particulars as may be prescribed. Proceeding to the 16th proviso, we find that in case any university or other educational institution etc. 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. 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rise 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 this Act after the expiry of the period specified by or under this Act for making such application or claim and deal with the same on merits in accordance with law." 23. From the above, we find that CBDT if it considers 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a definite time line i.e., upto 30th September of the relevant assessment year, in the instant case 30th September 2019. We do not find any provision for extending the time limit beyond 30.09.2019 though such a power is available with the CBDT. 27. Therefore, there is no provision for extension of the limitation period or for condonation of delay in fling the application 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 2019-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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