TMI Blog2023 (7) TMI 609X X X X Extracts X X X X X X X X Extracts X X X X ..... .R. For the Revenue : Shri B.D. Gupta, Sr.D.R. ORDER PER : T.R. SENTHIL KUMAR, JUDICIAL MEMBER:- This appeal is filed by the Assessee as against the Appellate order dated 18.01.2023 passed by the Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi, (in short referred to as NFAC ), arising out of the intimation passed under section 143(1) of the Income Tax Act, 1961 (hereinafter referred to as the Act ) relating to the Assessment Year (A.Y) 2014-15. 2. The brief facts of the case is that the appellant is a registered charitable Trust under section 12A of the Income Tax Act. For the Assessment Year 2014-15, the assessee filed its Return of Income on 30.01.2015. The assessee received Audit Report in Form No. 10B on 24.04.2014 and physically filed the same before the Assessing Officer namely ITO, Gandhidham on 20.05.2014. Invoking section 139(1) of the Act, Centralized Processing Centre (CPC), Bengaluru vide its communication dated 02-03-2016 intimated the assessee that the Audit Report in Form 10B is not filed alongwith the Return of Income as per Section 12A(1)(B) of the Act. The assessee was ensured to file the corrected Return, inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u/s. 11 to the assessee on the ground that Audit Report in Form 10B was not filed along with the Return of Income. The Ld. Counsel relied upon Jurisdictional High Court Judgment in the case of CIT Vs. Gujarat Oil Allied Industries reported in 201 ITR 325. 5. Per contra, the Ld. Sr. D.R. Shri B.D. Gupta appearing for the Revenue supported the order passed by the lower authorities. 6. We have given our thoughtful consideration and perused the materials available on record. It is an admitted fact that Audit Report in Form 10B was physically filed before the Jurisdictional Assessing Officer (JAO) on 20.05.2014 but the same was uploaded in the ITB Portal on 14.04.2019 after denying the benefit u/s. 11 of the Act. Late filing of Audit Report in Form 10B is considered by the very same Bench of this Tribunal in the case of Shree Charitable Trust Vs. ITO (Exemption) in ITA No. 172/Ahd/2022 dated 05.07.2023 wherein it was held as follows: .8. It is no more res integra that filing of Form 10B as required u/s. 12A are directory in nature, as such the Assessing Officer are not powerless to allow an assessee to file Audit Report, if not filed along with return, any time before comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder of lower authorities carefully. We find that there is no dispute that at the time of filing of return of income, the audit report has required under Form 10B was not uploaded once uploaded on the system consequently the AO/CPC not allowed the exemption claimed under section 11. Assessing Officer/CPC brought the entire receipt as taxable income. On receipt intimation under section 143(1) of the Act the assessee uploaded in Form 10B and filed application for rectification under section 154 of the Act. The application of the assessee was rejected on the ground report in Form 10B was not furnished before due date of return of income. The Id. CIT(A) dismissed the appeal of the assessee by taking view the audit report in Form 10B was not uploaded before due date of return of income. 9. We find that the Hon'ble jurisdictional High Court in case of CIT vs. Xavier Kalavani Mandal (P.) Ltd. (supra) held that in order to claim exemption under section 11, the assessee can filed audit report in Form 10B even at later stage either before the Assessing Officer or before appellate authority by showing a sufficient cause. Further, Hon'ble jurisdictional High Court decision in case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case of Social Security Scheme of GICEA (cited supra) the Hon ble Jurisdictional High Court held as follows: 5. ..the only question which falls for consideration is whether respondent committed an error in passing the order by not condoning the delay in filing Form No. 10B along with the return filed. In the decision of this Court in Sarvodaya Charitable Trust (supra) this Court has observed that furnishing of audit report along with return filed is to be treated as a procedural requirement. It is though mandatory in nature the substantial compliance is required to be made. In the case of Sarvodaya Charitable Trust (supra) the assessee had produced the audit report after processing the return under section 143(1). This Court in the said order has observed that the approach of the authority in these type of cases should be equitable, balancing and judicious. Technically speaking, respondent No. 2 might be justified in denying the exemption under section 11 of the Act by rejecting such condonation application, but an assessee, which is a public charitable trust for past 30 years which substantially satisfies the conditions for availing such exemption, should not be denied the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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