TMI Blog2022 (7) TMI 172X X X X Extracts X X X X X X X X Extracts X X X X ..... within the stipulated time. I n the case of CIT vs. Nagpur Hotel Owners Association ( 2000 (12) TMI 99 - SUPREME COURT] allowed the filing of Form No. 10 upto the stage of completion of assessment u/s. 143(3) of the Act and the Hon ble Allahabad High Court in the case of CIT vs. Panama Chemical Works ( 1999 (6) TMI 3 - MADHYA PRADESH HIGH COURT] also held that filing of the audit report during the assessment proceedings by the Assessee amounts to substantial compliance with the statutory requirement. No doubt, lack of knowledge of law is not an excuse, however,considering the peculiar facts that the provision for filing of the Form No. 10 was inserted newly and made applicable from A.Y. 2016-17 onwards, which in the instant case is under consideration and therefore the Assessee committed error which prima facie seems to be bonafide and unintentional. Even otherwise the Assessee rectified its mistake by filing form No. 10 electronically along with revised return of income u/s. 139(4) of the Act, which goes to show that the Assessee has used its due Diligence and made available the form No. 10 to the Assessing Officer during the assessment proceedings itself and therefore t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... account of the Assessee for the year under consideration, found that the gross receipts of the Assessee was Rs.3,42,41,610/- against which the Assessee has applied income to the tune of Rs.1,22,28,155/- making surplus of Rs.2,20,13,455/-. Consequently, there was short fall of Rs.1,68,77,213/- from the threshold limit of 85% of utilization of income by the Assessee. Therefore, considering the shortfall as deemed application, filing of form No. 10 was mandatory condition as per section 11(2) of the Act, which prescribes that the statement of accumulation must be submitted before the due date specified in sub-sec. (1) of section 139 for furnishing the return of income for the previous year whereas in this case the Assessee had filed the same only on 24.03.2018 along with the revised return of income. 3.1 On being asked by the Assessing Officer, the Assessee submitted that because as prescribed under Rule 17 of the Income-tax Rules, 1962 (in short the Rules ) as amended w.e.f. 01.04.2016, the e-filing of Form No. 10 was introduced first time only. The Assessee was unaware about the exact procedure of e-filing of Form No. 10 and therefore, could not file during the filing of orig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been mentioned. This ground of appeal is dismissed. In effect, the appeal is dismissed. 5. The Assessee being aggrieved with the impugned order is in appeal before us. At the outset, it was submitted by the Assessee that vide Finance Act, 2015, the amendment has been made in section 11 13 of the Act w.e.f. 01.04.2016 applicable from A.Y. 2016-17 onwards. As per the amended provisions of the Act read with Rule 17 of the Rules, 15% of the income can be accumulated indefinitely by the trust and 85% of the income can be accumulated for not exceeding five years subject to the condition inter-alia that such persons submits prescribed Form No. 10 electronically to the Assessing Officer within the due date specified u/s. 139(1) of the Act. 5.1 The CBDT vide its circular No. 7/2018 issued on dated 20.12.2018 authorised the Commissioners of Income Tax to admit belated applications in Form No. 9A and Form No. 10 in respect of A.Y. 2016-17 where such Form No. 9A and Form No. 10 are filed after the expiry of time allowed under the relevant provisions of the Act. It was further instructed that the Commissioners will, while entertaining such belated applications in Form No. 9A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ice of the Chartered Accountants or Advocates for filing of ITR and related forms. The assessment year 2016-17 being the first year of insertion of new provision for filing of Form No. 10 electronically, some of the stake holders including the Assessee herein due to unawareness escaped to file Form No. 10 electronically within the stipulated time and therefore, cannot be penalised for the inadvertent mistake on the part of its advisors. 5.6 Even otherwise, no direct or indirect benefit has been taken by the Assessee or direct or indirect losses has been occurred to the Revenue and there is no concealment of income or furnishing of inaccurate particulars of income, therefore, the Assesseedeserves lenient treatment as the filing of Form No. 10 within the time is directory but not mandatory. 6. On the contrary, the ld. DR vehemently supported the orders passed by the authorities below and submitted that filing of Form No.10 from 01.04.2016 onwards is mandatory in nature and in the absence of Form No. 10 filed electronically, the Assessee is not entitled for any benefit u/s. 11 of the Act. 7. Heard the parties and perused the material available on record. We have given o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in time prescribed or filing of Form No. 10 belatedly. 7.4 No doubt, lack of knowledge of law is not an excuse, however, respectfully following the dictums of the Hon ble Higher Courts and considering the peculiar facts that the provision for filing of the Form No. 10 was inserted newly and made applicable from A.Y. 2016-17 onwards, which in the instant case is under consideration and therefore the Assessee committed error which prima facie seems to be bonafide and unintentional. Even otherwise the Assessee rectified its mistake by filing form No. 10 electronically along with revised return of income u/s. 139(4) of the Act, which goes to show that the Assessee has used its due Diligence and made available the form No. 10 to the Assessing Officer during the assessment proceedings itself and therefore the Assessee can not be penalized. On the aforesaid analyzations, we are of the view that the Assessing Officer should have taken into consideration the form No. 10 filed on dated 24.03.2018. Consequently, the assessment order along with impugned order is set aside and the case is remanded to the file of the Assessing officer for decision afresh by taking into consideration the FOR ..... X X X X Extracts X X X X X X X X Extracts X X X X
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