SHRI LABDHI VIKRAM SHASHAN TRUST ,MUMBAI vs. THE LD AO-ASSISTANT DIRETOR OF INCOME TAX AT CENTRLAIZED PROCESSING CENTRE-CPC, MUMBAI

PER GAGAN GOYAL, A.M:

This appeal by assessee is directed against the order of National Faceless Appeal Centre (for short ‘NFAC’) dated 07.12.2022 u/s. 250 of the Income Tax Act, 1961 (for short ‘the Act’) for A.Y. 2017-18. The assessee has raised the following grounds of appeal:

2 ITA NO. 41/MUM/2023 SHRI LABDHI VIKRAM SHASHAN SEVA TRUST “1. The Learned CIT(A)/NFAC erred in confirming order of A.O. denying exemption in terms of Section 11 of the Income Tax Act, 1961 on the ground that Audit Report in Form No 10B is not filed along with the original return of income without appreciating that ITR-7 rectified was filed on 28/11/2019 and the Audit report was also filed on 28/11/2019 and further Audit report u/s. 10B was obtained on 30/9/2017 i.e. before filing original return of income and the delay if any was bonafide and condonable and hence denial of exemption u/s. 11 is bad in law. 2) The Learned CIT (A)/NFAC failed to appreciate that corpus donation i.e. tied up funds of Rs. 58, 13,455/- is not income and hence addition of Rs. 58, 13,455/- may be deleted. 2.1) The Learned CIT (A)/NFAC erred in not adjudicating that corpus donation i.e. tied up funds of Rs. 58, 13,455/- is not income and hence addition of Rs. 58, 13,455/- may be deleted. 3) The Learned CIT(A)/NFAC failed to appreciate that if voluntary contribution of Rs. 21,07,522/- is taxed then the expenses incurred out of said income ought to be allowed and only net income can be taxed. 4) The Appellant craves leave to add, amend, alter or delete any or all the above grounds of appeal.” 2. Brief facts of the case are that the assessee trust filed its return of income on 31.03.2018 declaring taxable income at Rs. 5,17,097/-. In this return, assessee claimed exemption of Rs. 21, 07,522/- available u/s. 11(1) (a) of the Act comprising of Rs. 17, 13,829/- being the income applied for religious or charitable purposes and Rs. 3, 93,693/- being the amount accumulated for application to charitable or religious purposes to the extent it does not exceed 15% of income derived from property held in Trust.

3 ITA NO. 41/MUM/2023 SHRI LABDHI VIKRAM SHASHAN SEVA TRUST exemption (vide its intimation dated 21.08.2018) claimed by the assessee u/s. 11(1) (a) amounting to Rs. 21, 07,522/- and further exemption u/s. 11(1) (d) amounting to Rs.58, 13,455/-. Against this intimation, assessee trust filed an application u/s. 154 of the Act before the CPC vide dated 13.03.2019. Thereafter assessee again filed rectification application u/s. 154 of the Act repeatedly on 28.11.2019, 04.02.2020 and 24.05.2020. In response to all the applications CPC Bangalore issued an order dated 10.08.2020 rejecting all the applications. Assessee being aggrieved with this order of CPC Bangalore preferred and appeal before the Ld. CIT (A). This appeal filed by the assessee was also rejected by the Ld. CIT(A) on the ground that tax audit report in form No. 10B has not been filed within the time prescribed by section 12A(1)(b) read with 1st proviso to Rule 12(2) of the Income Tax Rules 1962.

4 ITA NO. 41/MUM/2023 SHRI LABDHI VIKRAM SHASHAN SEVA TRUST without tax audit report in form no. 10B. Assessee filed another return of income on 28.11.2019 along with copy of audit report in form no. 10B. It is further observed that application for condonation of delay filed by the assessee as mentioned (supra) was rejected by the Ld. CIT (E) on the ground that the figures as contained in form no. 10B before him and return filed by the assessee are not matching. We have examined this issue; this difference was there because the Ld. CIT (E) considered the original return filed on 31.03.2018 instead of considering the return filed by the assessee along with audit report on 28.11.2019. It is a factual error committed by the Ld. CIT (E) meaning thereby assessee was entitled to get condonation of delay in filing of tax audit report in form no. 10B.

5 ITA NO. 41/MUM/2023 SHRI LABDHI VIKRAM SHASHAN SEVA TRUST 7. Based on above discussion and the judicial pronouncements on the matter under consideration by the Hon’ble Jurisdictional High Court in the case of CIT vs. Mumbai Metropolitan Regional Iron and Steel Market Committee (supra), we can safely held that assessee has fully complied with the relevant provisions of the Act along with circular mentioned (supra) for getting delay condoned. In such circumstances, we restore the matter back to Ld. CIT (E) to reconsider the matter in the light of our findings and judicial pronouncements followed by us.

Copy of the Order forwarded to: अपील र्थी/The Appellant , 1. प्रदिव िी/ The Respondent. 2. आयकर आयुक्त CIT 3. दवभ गीय प्रदिदनदि, आय.अपी.अदि., मुबांई/DR, ITAT, Mumbai 4. ग र्ड फ इल/Guard file. 5.

BY ORDER, //True Copy// (Asstt. Registrar) ITAT, Mumbai