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TMI Blog2023 (12) TMI 1295X X X X Extracts X X X X X X X X Extracts X X X X ..... 2, wherein the Hon'ble Apex Court has held that exemption provisions are to be strictly arid literally complied with and the same cannot be construed as procedural requirement. (ii) Whether in the facts and in law, the Ld.CIT(A) is right in directing the Assessing Officer to allow the claim of assessee u/s.11 of the Act, after due verification, in view of his finding that not filing of Form No.10 and /or 10B within due date as prescribed under the Act is merely a procedural lapse. (iii) Whether in the facts and in law, the Ld. CIT(A) is right in directing the Assessing Officer to allow the claim of assessee u/s.11 of the Act, in contradiction to his finding while the Ground No.1 raised by the assessee, after holding that the CPC was well within the power to make such adjustment as the assessee has not filed the Form No.10B within the due date prescribed under the Act. (iv) The appellant crave leave to add, amend, delete or modify ground of appeal before the finalization of appeal." 3. The brief facts of the case are that the assessee filed original return of income on 25.09.2019 wherein exemption of Rs. 2.40 lakhs was claimed under Section 11(2) of the Act. Thereafte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evised return and the original return of income was filed u/s 139(4A) on 25.09.2019 i.e. before the extended due date 31.10.2019. The above fact is also confirmed from the CPC 2.0 portal where it can be seen that the appellant filed original return of income was filed on 25.09.2019 and the same was revised vide return filed u/s 139(5) on 13.03.2020. Hence, the claim of CPC that the appellant filed belated return of income, is factually incorrect. 4.3.3 The appellant also had to file Form 10B to avail the benefits of exemption u/s 11 & 12 before the "specified date" as per section 44AB. The specified date to file Form 10B is mentioned in explanation (ii) of section 44AB which is as under: "[ii "specified date", in relation to the accounts of the assesses of the previous year relevant to an assessment year, means[date one month prior to][the due date for furnishing the return of income under sub-section (1) of section 139].]]" For the A.Y. 2019-20 the due date for furnishing the return of income u/s 139(1) was 31.10.2019. Hence, the due date to file Form 10B would be 01.10.2019. However, the appellant filed Form 10B for A.Y. 2019-20 on 13.03.2020 i.e. belated. 4.3.4 The q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing authority completes the concerned assessment because such requirement is mandatory and without the particulars of the income, the assessing authority cannot entertain the claim of the assessee under section 11. Therefore, compliance of the requirement of the Act will have to be any time before the assessment proceedings." 4.3.5 In the instant case the appellant/assessee e-filed the Form 10 on 13.03.2020. The above fact is confirmed during the appellate proceedings from CPC 2.0 portal. As per the case laws mentioned above, the Hon'ble Courts took the view that the benefit of exemption should not be denied merely on account of delay in furnishing the audit report and it is permissible for the assessee to produce the audit report at a later stage, either before the AO or the appellate authority. This view has been reiterated by the Hon'ble Court in the recent judgement of Hon'ble Gujarat High Court in the case of Sarvodaya Charitable Trust v. Income Tax Officer. (Exemption) [2021] 125 taxmann.com 75 (Gujarat). 4.3.6 In view of the above discussion, I am of the view that the assessing officer erred in not allowing deduction to the appellant/assessee for the amou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim was also filed in the revised return of income filed by the assessee. In this case, the Assessee filed original' return on 25.09.2019 (before duedate), wherein claim of Rs.2,40,000/- was made u/s 11(2) of the Act and even Form 10 / 10B were filed before due-date. Thus, the requirements of Section 11(2) stand fulfilled. Later, assessee realized that there was an error in the claim u/s 11(2), and therefore, assessee filed "revised return of income" and "revised Form 10 / 10B" on 13.03.2020 i.e. after due-date u/s 139(1) wherein claim u/s 11(2) was revised to Rs.1,73,00,000/-. In such peculiar facts, CPC was not justified in denying claim u/s 11(2) on the count that "Form 10 / 10B was not filed within due-date" since in the present case (i) Original Form 10 / 10B was filed before due-date; (ii) Only revised Form 10 / 10B was filed after due-date; (iii) Such revised Form 10 / 10B was filed on account of error in claim. Under such facts and circumstances, it is not a case of "not filing Form 10 / 10B before the prescribed due-date at all", rather, it is a case of "filing original Form 10 / 10B before the due-date and thereafter, owing to an error which crept in the same, filin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed return of income was filed by the assessee foregoing the claim of benefit of Section 10B of the Act. However, the facts of the instant case are clearly distinguishable for the reason that in both the original return of income as well as the revised return of income, the assessee has taken a consistent stand and has claimed deduction under Section 11(2) of the Act, and further in the original return of income (which was filed within the due prescribed date), Form 10 was duly furnished by the assessee. It was only later when the assessee noticed that the claim of deduction under Section 11(2) of the Act required correction that the assessee filed revised return of income along with Form 10. Therefore, there is a marked distinction between the facts of the Wipro Ltd case supra and the instant facts. Further, observe that Ahmedabad ITAT in the case of DCIT V. CroygasEquipments Private Ltd in ITA number 415/AHD/2020 had also held that the principal of Wipro Limited supra cannot be uniformly applied to all cases and the aforesaid decision was distinguished by the Ahmedabad Tribunal, with the following observations: "6.3 Another notable issue for consideration is that recently the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8) by furnishing declaration in revised return much after due date prescribed under section 139(1), same was to be denied as requirement of furnishing declaration before AO before due date of filing original return under section 139(1) was a mandatory condition not directory. However, notably, there is no such equivalent/similar provision in section 10AA of the Act, which gives an option to the assessee to file a declaration before the due date of return of income under section 139(1) of the Act, to the effect that the provisions of this section may not be made applicable to him, for the impugned assessment year. Therefore, going by the strict language of section, the relevant statutory provisions on which the decision of Wipro was based, were on a different footing. Further, the issue for consideration in the Wipro case is also distinguishable, since in the assessee's case, it had claimed benefit of deduction u/s. 10AA in the original return of income (and only Form 56F was omitted to be e-filed alongwith return of income), whereas the issue for consideration in Wipro case supra was that once the assessee had claimed benefit of section 10B in the original return of income, whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee to claim benefit of section 10AA of the Act, since it has been rendered on a different set of facts. Therefore in our considered view, once such claim has been made in the original return of income and assessee has also furnished Form 56F during the course of assessment proceedings itself, before the assessment was finalized. The assessee should not be denied the benefit of s. 10AA of the Act. It is a well settled principle of law that if there is any ambiguity regarding interpretation of a Statutory provision, an interpretation favourable to the assessee may be taken, especially when we are dealing with Statutory provisions aimed at giving some incentive to the assessee. 6.4 Another aspect for consideration is that whether there is sufficient compliance once assessee has filed the revised Form 56F during the course of assessment proceedings. In the case of M/s. ACN Info-Tech vs. ACIT ITA No. 79/Viz/2017, instead of claiming deduction u/s. 10AA of the Act, the assessee claimed deduction u/s. 10B of the Act in the income tax return. The A.O. rejected the claim on the ground that assessee did not file form 56F along with return of income and had filed form 56G instead. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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