9911796707
TMI Blog2023 (10) TMI 559X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Centre and disallowed the entire claim of expenses and demanded a tax of Rs. 1,67,290/- vide intimation u/s. 143(1) dated 16-03-2018. 3. Aggrieved against the same, the assessee filed rectification application dated 26-11-2019 and also filed Audit Report in Form 10B on 07-07-2020. This rectification application was also rejected on the ground that Audit Report in Form 10B was not filed along with the Return of Income, thereby the exemption u/s. 11 & 12 is not applicable to the assessee. Thus the rectification application was rejected. 4. Aggrieved against the same, the assessee filed an appeal before National Faceless Appeal Centre. The Ld. NFAC held that the Assessing Officer rejected the rectification petition observing that the assessee did not file the Audit Report in Form 10B and during the appellate proceedings. The assessee failed to furnish the date on which Audit Report in Form 10B was filed by the assessee and also failed to explain the delay in filing Form 10B was whether condoned by CIT(E). In the absence of any details, the appeal filed by the assessee was dismissed by Ld. NFAC. 5. Aggrieved against the same, the assessee is in appeal before us raising the follo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efit of exemption u/s. 11 of the Act and therefore pleaded to allow the appeal filed by the assessee trust. 6. Per contra, Ld. CIT-DR Shri Akhilendra Pratap Yadav appearing for the Revenue supported the order passed by the Lower Authorities and pleaded to dismiss the appeal filed by the assessee. 7. We have given our thoughtful consideration and perused the materials available on record. It is an admitted fact and on perusal of intimation u/s. 143(1), the assessee was not communicated the filing of Form 10B along with the Return of Income. During the rectification petition also, it came to light that non-filing of Audit Report in Form 10B along with the Return of Income is the reason for disallowance of claim of deduction/exemption. It is thereafter the assessee filed Form 10B on 07-07-2020, during the pendency of the appellate proceedings before Ld. NFAC. 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 completion of assessment and also before Appellate Authorities. 8.1. The Hon'ble High Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 of Sarvodaya charitable Trust vs. ITO (Exemption) (supra) a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sdictional 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 same merely on the bar of limitation especially when the legislature ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
