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Before: Shri V. Durga Rao & Shri Manjunatha, G.
O R D E R
PER V. DURGA RAO, JUDICIAL MEMBER:
This appeal filed by the assessee is directed against the order of the ld. Commissioner of Income Tax (Appeals), National Faceless Appeal Centre [NFAC], Delhi dated 21.03.2022 relevant to the assessment year 2018-19.
Brief facts of the case are that the assessee has filed the return of income for the assessment year 2018-19 on 09.03.2019 admitting Nil income after claiming deduction under section 80P of the Income Tax Act, 1961 [“Act” in short]. The CPC, Bengaluru, while processing the return of income disallowed the claim of deduction under section 80P of the Act and passed intimation under section 143(1) of the Act dated 29.06.2019.
The assessee carried the matter in appeal before the ld. CIT(A). Since the assessee has not filed the return of income within the due date of filing as specified under section 139(1) of the Act, the ld. CIT(A) confirmed the disallowance of deduction claimed under section 80P of the Act and dismissed the ground raised by the assessee.
On being aggrieved, the assessee is in appeal before the Tribunal. None appeared on behalf of the assessee. Hence, we proceed to decide the appeal on merits after hearing the ld. DR.
We have heard the ld. DR, perused the materials available on record and gone through the orders of authorities below. In this case, since the return of income for the assessment year was not filed within the due date of filing as specified under section 139(1) of the Act, the CPC, Bengaluru disallowed the claim of deduction under section 80P of the Act. During the course of appellate proceedings, the assessee has submitted that it has filed condonation application before the CBDT and requested the ld. CIT(A) to grant adjournment till the outcome of the application. However, the ld. CIT(A) dismissed the appeal filed by the assessee.
Before the Tribunal, it was the submission made by the assessee along with Form 36 that appointment of statutory auditor and getting the audit report before the due date of filing of return of income was beyond the control of the assessee. Since the Department of Co-operative Audit conducted the statutory audit and served the tax audit report after the due date of filing the return of income under section 139(1) of the Act, the assessee filed the return of income under section 139(4) of the Act. On perusal of the appellate order, we find that before the ld. CIT(A), the assessee has submitted that it has submitted an application before the CBDT for condonation of delay and has requested for adjournment till the outcome of the application of the assessee. However, the ld. CIT(A) dismissed the appeal and directed the assessee to claim the deduction under section 80P of the Act as and when it received the communication from the CBDT.
6.1 In view of the fact that the assessee has filed an application for condonation of delay before the CBDT under section 119(2)(b) of the Act, we are of the considered opinion that pending decision of the CBDT on the delay condonation application of the assessee, the Department ought to have waited for the decision of the CBDT, for the reason that, if the CBDT condone the delay, the claim of the assessee has to be considered in accordance with law. Therefore, we set aside the order passed by the ld. CIT(A) and remit the matter back to the file of the ld. CIT(A) to wait for the decision on the condonation petition filed by the assessee before the CBDT and thereafter pass order in accordance with law.
In the result, the appeal filed by the assessee is allowed for statistical purposes.
Order pronounced in the open Court on 26th June, 2023 at Chennai.