DISTRICT PROBATION & AFTER CARE ASSOCIATION SATARA,SATARA vs. ITO, EXEMPTION WARD1(1), PUNE

Brief facts of the case are that the assessee is a Charitable Trust and return of income for A.Y.2020-21 furnished on 30.03.2021. Assessee trust is registered u/s.12A of the Act, however, Audit Report in Form 10B was not furnished on or before the due date. Application for condonation of delay in filing of Form 10B was also furnished on 21.09.2023 and the main reason for delay was on account of covid-19 pandemic outbreak restrictions. However, even after the uploading of Audit Report in Form 10B on 30.03.2021, in the return processed u/s.143(1)(a) of the Act on 30.11.2021 the benefit of application of income for charitable purposes at Rs.1,72,07,533/- was denied and added in the hands of assessee on the ground of non-submission of Audit Report on Form No.10B within the statutory time limit. Assessee preferred appeal before ld.CIT(A) but failed to succeed.

Now the assessee is in appeal before this Tribunal.

Ld. Counsel for the assessee made three fold arguments; (1) prior to making of the adjustment u/s.143(1)(a) of the Act no opportunity was granted by CPC which is a clear violation of principles of natural justice; (2) that the Audit Report was furnished before the due date prescribed for filing of the return u/s.139(4) and it has been judicially settled that in such cases Audit Report in Form 10B should be accepted; and (3) an alternate plea has been raised that even otherwise ld. AO ought to have granted deduction of the genuine bonafide expenses at Rs.1,49,19,496/- incurred for the objects of the trust.

On the other hand, ld. Departmental Representative supported the orders of the lower authorities.

We have heard the rival contentions and perused the record placed before us. We observe that for the A.Y. 2020-21 return of income was filed on 30.03.2021 and Audit Report in Form 10B was uploaded on 31.03.2021 and the delay is only on account of procedural lapse. It is not in dispute that before the due date prescribed u/s.139(4) of the Act Audit Report in Form 10B has been uploaded. Hon’ble High Court of Gujarat in the case of CIT (Exemption) Vs. Anjana Foundation reported in (2024) 168 taxmann.com 482 (Gujarat) has held that Audit Report in Form 10B thought not furnished prior to the filing of the income-tax return but later prepared and filed before ld.CIT(A), has held that filing of Audit Report is a procedural requirement and therefore Assessing Officer was directed to decide the claim of the assessee u/s.11 of the Act after accepting Form 10B filed by the assessee. We also notice that in the case of Bangarh Educational Welfare Trust Vs. ITO (Exemptions) - order dated 02.01.2022 the Coordinate Bench, Kolkata under similar set of facts and circumstances where a belated return has been filed u/s.139(4) of the Act and Audit Report has been furnished before the due date of filing return u/s.139(4), has examined the issue in detail and granted relief to the assessee observing as follows :

Now, going through the provisions to section 139(4A) of the Act shows that the assessee is required to file the return as per the provisions of section 139(1) of the Act. Now, perusal of section 139(1) shows that in the case of the assessee which is required to get its account audited, the due date is 30.09.2018 and for A.Y 2018-19 this date was further extended to 31.10.2018 vide CBDT's order dated 24.09.2018. Now, since the assessee has filed the return on 15.11.2018, it is a belated return. Thus, there remains no dispute to the fact that the return of income filed by the assessee is a belated return which as per section 139(5) of the Act could have been filed latest by 31.03.2019. Now, at this stage, we would like to refer to Circular issued by CBDT on 23.04.2019 giving clarification with regard to time allowed for filing of return of income subsequent to insertion of clause (ba) in sub-section 1 of section 12A of the Act and the same is reproduced below:

In the matter, the memorandum explaining the relevant provisions of the Finance Bill, 2017 reads as under:

From perusal of the above referred circular, we find that in Para 3 of the said circular specifically states that a trust registered u/s 12AA of the Act, benefit of section 11 shall be available if the return of income is filed within the time allowed u/s 139 of the Act. It further states that orders u/s 143(1)(a) of the Act in those cases in which demand has been raised on this issue may please be rectified. From the circular, we note that an amendment was brought in by insertion of clause (ba) of section 12A(1) of the Act from 2018-19 onwards through which one of the requirements for claiming the benefit u/s 11 and 12 of the Act was to file the return of income within time allowed u/s 139(4A) of the Act. It seems that specially for A.Y 2018-19, when the Form ITR-7 was being processed and for such belated return, demand was raised, representations were received from various assessees on this issue. Taking note of this issue, the said CBDT Circular has issued and while dealing with this issue, the returns filed within the time allowed u/s 139 of the Act have been directed to be accepted for the purpose of considering benefit of deduction u/s 11 of the Act. Now, since only section 139 of the Act has been mentioned and does not specify whether it is about u/s 139(1) of the Act or section 139(5) of the Act, the view beneficial to the assessee needs to be accepted and, since section 139(1) and section 139(5) are part of section 139 only and in this section 139 and sub-section (5) provides the mechanism to file a belated return, therefore, for A.Y 2018-19, even if the assessee files the return before the last date of filing of belated return the same should be treated as due compliance to section 12A(1)(ba) of the Act. For the year under appeal, the belated return could have been filed before 31.03.2019, and since the assessee has filed the return on 15.11.2018, therefore, considering the directions of CBDT Circular dated 23.04.2019, which are binding on the Revenue authorities, we are of the view that the assessee has fulfilled the conditions provided under sub-clause (ba) of section 12A(1) of the Act and has filed the return of income within the time allowed.

Now, the second reason for which lower authorities have denied the deduction u/s 11 of the Act is of filing the belated audit report on form 10B of the Act. Now, clause (b) of section 12A(1) of the Act provides for a condition that if the income of a trust exceeds a maximum amount which is not chargeable to tax in the previous year the account have to be audited and the person in receipt of such income furnishes the audit report before the specified date. In the case of the assessee, Form No.10B was to be filed and the relevant rule is rule 17B of the Income Tax Rules which provides that the report of audit of the accounts of a trust or institution which is required to be furnished under Clause (b) of section 12A, shall be in Form No. 10B.

Now, on perusal of the Form 10B, we notice that the same is required to be submitted electronically, one month prior to the due date of the filing of return of income. Admittedly, in the case in hand, the audit report on form 10B has been uploaded on 30.03.2019 which is even after the date of filing the return of income on 15.11.2018. Now, before us, it has been contended by the ld. counsel for the assessee that filing of audit report is directory in nature and even if report is submitted in time before the conclusion of the assessment proceedings, the same needs to be considered. Though the assessee referred to the various decisions, we find it pertinent to refer to the judgment of the Hon'ble Gujarat High Court in the case of Sarvodaya Charitable Trust us. ITO(Exemption) (supra) wherein Para 32 of the said judgment reads as follows:

In the above judgment, Hon'ble Court has held that filing of audit report is directory in nature and its substantial compliance would suffice. The Id. Departmental Representative failed to place before us any other binding precedents of Hon'ble Jurisdictional High Court or the Hon'ble Apex Court. Therefore, considering the ratio laid down in the Hon'ble Gujarat High Court in the case of Sarvodaya Charitable Trust us. ITO(Exemption) (supra), we find that though the audit report has been uploaded after the filing of return of income but the said report has been signed by the auditor on 28.10.2018 and the copy of this report is placed at 40-41 of paper book and the date of audit report is prior to the filing of the return of income, therefore, it is presumed that conducting of audit for preparation of audit report is before e-filing of the return of income but as claimed by the assessee due to technical glitches, the report was uploaded after filing the return of income.

Though the Hon'ble Court holds that the report should be considered even filed in the course of assessment proceedings, or before in appellate authority, however, we notice that in the instant case, the case of the assessee was not selected for scrutiny assessment and it was mere processing of return by the computer with the set program. Had it been the case of scrutiny proceeding u/s 143(3) of the Act, the case could have been different. The ld. A.O may had an opportunity to go through the audit report. But still when the issue came before ld. CIT(A) who also possesses co-terminus power with that of A.O and as per section 251(1)(a) of the Act, the Id. CIT(A) in disposing the appeal against order of assessment has the power to confirm, reduce, enhance or annul the assessment, therefore, though, it was not possible to entertain the audit report while processing the return u/s 143(1)(a) of the Act, but the ld. CIT(A) was well within its power to have entertained the said report and examined the same as could have been done by the A.O.

We, therefore, in the given facts and circumstances and respectfully following the judgment of Hon'ble Gujarat High Court in the case Sarvodaya Charitable Trust us. ITO(Exemption) (supra) , we are of the considered view that since the case of assessee is for A.Y 2018-19 and CBDT came up with a circular dated 23.04.2019 specially for A.Y 2018- 19 providing that return of income to be filed within the time allowed u/s 139 of the Act, the assessee has complied with the conditions provided in sub-clause (b) and (ba) to section 12 and there is no dispute at the end of the revenue authorities that the assessee is carrying on charitable activities, for which it has been granted registration u/s 12A of the Act, the benefit of section 11 and 12 should be given to the assessee and deductions claimed by the assessee are, therefore, allowed. Thus, Ground Nos. 1 to 4 of the assessee are allowed.

So far as alternate plea praying that only the net income should have been subjected to tax rather than gross receipts, since we have already allowed the deduction u/s 11 and 12 of the Act to the assessee, this alternate plea becomes academic in nature. Other grounds are general in nature which needs no adjudication.”

Respectfully following the above decision and considering the fact that Audit Report has been filed prior to the due date prescribed u/s.139(4) of the Act and also observing that filing of Audit Report in Form 10B is procedural requirement and that assessee has duly complied with the same, we are inclined to hold that ld.CIT(A) erred in confirming the adjustment made by CPC. Thus, impugned order is set-aside and the grounds of appeal raised by the assessee are allowed.

In the result, appeal of the assessee is allowed.