TMI Blog2022 (10) TMI 448X X X X Extracts X X X X X X X X Extracts X X X X ..... refers to certain specific adjustments which can be made while processing the return provided that an intimation has been given to the assessee before making such adjustment either in writing or in electronic mode. Nothing is brought on record to demonstrate that an intimation was given to the assessee before resorting to the adjustment made in the processing of return of the assessee which resulted in raising of the demand in the year under consideration. We note that in the case of Rai Bahadur Bissesswarlal Motilal Malwasie Trust [ 1991 (4) TMI 56 - CALCUTTA HIGH COURT] has dealt with this issue under consideration before us and has held that claim of exemption u/s. 11 cannot be denied merely on account of delay in furnishing of audit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... well as the claim of the assessee for exemption u/s. 11 - Thus, we set aside the assessment and restore the matter to the file of the AO for making a fresh assessment in accordance with law after giving a reasonable opportunity of being heard to the assessee in support of its claims made. Accordingly, the grounds taken by the assessee are allowed for statistical purposes. - I. T. A. No. 411/Kol/2021 - - - Dated:- 12-9-2022 - SHRI SANJAY GARG , HON BLE JUDICIAL MEMBER And SHRI GIRISH AGRAWAL , HON BLE ACCOUNTANT MEMBER Assessee by : Shri Siddharth Jhajaria, FCA/ Shri Sujoy Sen, A/R Pritee Bhubna, FCA Revenue by : Shri Biswanath Das, Addl. CIT, D/R ORDER PER SHRI GIRISH AGRAWAL , ACCOUNTANT MEMBER : The prese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iming exemption u/s. 11 of the Act. Company is registered u/s. 12A vide registration dt. 09/03/1976, for which the certificate of registration is placed on record at page 24 of the paper book. On the adjustment made by CPC, Bengaluru, by issuing intimation u/s. 143(1), cognizance of Form 10B filed by the assessee on 22/05/2018 in respect of claim of application of its gross receipts towards charitable purposes and accumulation of setting apart of the income derived by the assessee not exceeding 15% has not been taken into consideration and thus an adjustment has been made u/s. 143(1) of the Act resulting into a demand of Rs. 14,00,906/- for the year under consideration. Assessee went into appeal before the ld. CIT(A) for the adjustment made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the issuance of intimation u/s. 143(1), wherein the adjustments have been made resulting into a demand on the assessee. 5.1. He placed reliance on the decision of Hon'ble Jurisdictional High Court in the case of Commissioner of Income-tax v. Rai Bahadur Bissesswarlal Motilal Malwasie Trust reported in [1992] 195 ITR 825 (Calcutta HC), wherein it was held that, exemption otherwise available to assessee-trust under section 11 could not be denied merely on account of delay in furnishing auditor's report as required under section 12A of the Act. It was also held in the said decision that, provisions of section 12A are directory in sense that Assessing Officer is not powerless to allow an assessee to file audit report, if not filed al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . ITO reported in [1992] 42 ITD 62 (Calcutta), wherein it was held that, Assessing Officer was not justified in refusing the benefit of exemption under section 11 for simple reason that appellant had violated the provisions of section 12A(b) as it had not filed audit report in Form No. 10B along with its return of income. It was also held in the said decision that, Commissioner (Appeals) ought to have admitted audit report in Form No. 10B and it directed the ITO to examine same for the purpose of allowing the claim of exemption made by the assessee trust u/s. 11 of the Act. 6. Per contra, ld. D/R placed reliance on the order of the ld. CIT(A). 7. We have heard the rival contention and perused the material available on record. Admitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore us and has held that claim of exemption u/s. 11 cannot be denied merely on account of delay in furnishing of auditor's report as required u/s. 12A of the Act, more particularly when the said audit report in Form 10B was available with the officer before the completion of the assessment. We also note that CBDT has issued circulars vide Circular No. 10 of 2019 dt. 22/05/2019 and Circular No. 03/2020 dt. 03/01/2020 wherein, procedure for condonation of delay in filing Form 10B Form 9A has been prescribed for Assessment Years subsequent to Assessment Years 2016-17 which, in the present case is A.Y. 2017-18 before us. 7.2. Admittedly, assessment was not completed u/s. 143(3) of the Act and, therefore, there would have been no erro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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