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Facts
The assessee trust filed its return of income with an audit report in Form No.10BB instead of the correct Form No.10B. This was rectified later, but the Assessing Officer denied exemption under Section 11 of the Act due to the delay in filing the correct form. The assessee faced a delay of 332 days in filing the appeal.
Held
The Tribunal condoned the delay in filing the appeal, considering the assessee had shown reasonable cause. It was held that filing the audit report is a procedural requirement and the benefit of Section 11 should not be denied for a delay in furnishing Form No.10B, especially when the corrected form was filed later.
Key Issues
Whether the denial of exemption under Section 11 of the Income Tax Act for delay in filing Form No.10B is justified, given it's a procedural requirement?
Sections Cited
250, 143(1)(a), 11, 10(23C)
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Income Tax Appellate Tribunal, PUNE BENCHES “B”, PUNE
Before: DR.MANISH BORAD & MS. ASTHA CHANDRA
आदेश / ORDER
PER DR. MANISH BORAD, ACCOUNTANT MEMBER :
The captioned appeal at the instance of assessee pertaining to assessment year 2020-21 is directed against the order dated 18.12.2023 passed by Addl.JCIT(A), Prayagraj u/s.250 of the Income Tax Act, 1961 ( in short ‘the Act’) arising out of the Intimation order dated 09.12.2020 passed u/s.143(1)(a) of the Act.
2. Registry has informed that there is delay of 332 days in filing the appeal before this Tribunal. Application for condonation of delay has been filed by the assessee explaining the reasons. Placing reliance on the judgment of Hon’ble Bombay High Court in the case of Sitaldas K. Motwani vs. DGIT (2010) 323 ITR 223 (Bom) it was submitted that the delay was not intentional and assessee would not have gained anything by filing the appeal with delay. It is therefore prayed that the delay be condoned. Reliance further placed on following judgments :
Srl.No. Particulars 1. Collector Land Acquisition, Anantnag & Anr v. MST Katiji & ORS, 1987 (SC Report) 2. Concord of India Insurance Co Ltd vs Nirmala Devi And ORS on (Special Leave Petition) (5228 and 5286 of 1977) 3. Cognizance for Extension of Limitation (Suo Motu W.P No. 3 of 2020) SC 4. Vijay Vishin Meghani v. DCIT Circle-23(2) (Mumbai) (86 taxmann.com 98) (Bombay HC) 5. Ajay Parasmal Kothari v. ITO (159 taxmann.com 570) (ITAT Mumbai) 6. Sri Suhas Suresh Shet v. ITO, International Taxation (140 taxmann.com 96) (ITAT Bangalore) 7. Dhalavaipalayam Primary Agriculture Coop Credit Society Ltd v. ITO-1(3), Tirupur (110 taxmann.com 52) (Madras HC) 8. Sarvadeivatha Education Trust v. ITO (Exemptions) (166 taxmann.com 524) (ITAT Bangalore)
After hearing both the sides and having gone through the averments made in the condonation application and considering the ratios laid down by the Hon’ble Courts, we are of the view that there was ‘reasonable cause’ which prevented the assessee in filing the appeal within the stipulated time. We therefore condone the delay of 332 days and admit the appeal for adjudication.
In the various grounds of appeal, the grievance of the assessee is that the exemption u/s.11 of the Act has been denied solely for delay in filing of Form No.10B. Ld. Counsel for the assessee has referred to various judgments filed in the case law paper book where it has been consistently held that filing the audit reports is directory in nature and even if such report is placed during the course of assessment proceedings/appellate proceedings, the same should be considered. Reliance placed on following case laws :
Srl.No. Particulars 1. Sarvodaya Charitable Trust v. ITO (Exemption) 125 taxmann.com 75 (Gujarat HC)
CIT-IV v. Xavier Kelavani Mandal (P.) Ltd (41 taxmann.com 184) (Gujarat HC) 3. National Horticulture Board v. Chief Commissioner of Income-tax (176 Taxman 167) (Punjab HC) 4. Al Jamia Mohammediyah Education Society v. CIT (Exemptions) (162 taxmann.com 114) (Bombay HC) 5. CIT (Exemption) v. Anjana Foundation (168 taxmann.com 462) (Gujarat HC) 6. S.M.K.R Vashi High School v. ITO (Exemption) (157 taxmann.com 702) (ITAT Surat) 7. Shri R V Shah Charitable Trust v. Deputy Director of Income-tax (161 taxmann.com 810) (ITAT Ahmedabad) 8. Mary Queens Mission Hospital v. CIT(Exemption) (167 taxmann.com 379) (Kerala HC) 9. Shri Madvirashiv Shivogimandir Samsthe v. ITO (Exemptions) (ITA No. 1402 of 2024) (ITAT Bangalore)
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 the assessee is a trust running Educational Institution for educational purposes and is claimed to be a non profitable organisation eligible for benefit u/s.10(23C) of the Act as well as section 11 of the Act. Return of income for A.Y. 2020-21 was furnished on 09.12.2020 along with audit report in Form No.10BB. Later, assessee came to know that the correct form to be filed was Form No.10B and not Form No.10BB and he accordingly e-filed the Form No.10B form on 13.01.2022. Now the CPC on the sole ground that assessee had not furnished Form No.10BB within the prescribed time limit denied the benefit of section 11 of the Act and disallowed the expenditure claimed in the financial statements. Assessee failed to get any relief before ld.CIT(A) also. We however considering the fact that assessee had inadvertently filed Form No.10BB but the same was along with income-tax return containing all the details and subsequently assessee has furnished the correct Form No.10B also.
Varvade Panchkroshi Prasarak Mandal 7. We note that the Coordinate bench in the case of S.M. K.R. Vashi High School Vs. ITO (Exemption) reported in 157 taxmann.com 702 (ITAT, Surat) has held that even if the Form No.10B could not be uploaded due to some technical error on the income-tax portal, benefit of section 11 could not be denied merely on account of delay in furnishing the audit report. Hon’ble High Court in the case of CIT (Exemption) Anjana Foundation reported in 168 taxmann.com 462 (Gujarat) has held that filing of Form No.10B is a procedural requirement and benefit of section 11 should not be denied for delay in furnishing Form No.10B. Hon’ble Court thus affirmed the view taken by the Tribunal in its order dated 07.02.2023 in ITA No.695/Ahd/2023. Respectfully following the ratio laid down by the Hon’ble Courts and the decision of Coordinate Bench, we find that the case of the assessee is on much stronger footing where Form No.10BB was inadvertently filed in place of Form No.10B but the same was filed along with the income-tax return and subsequently assessee furnished Form No.10B also. We therefore direct the Jurisdictional Assessing Officer to allow the benefit of exemption u/s11 of the Act claimed by the assessee in the income-tax return since the Form No.10B was finally furnished before the authorities below containing all the necessary details. Grounds of appeal raised by the assessee are allowed.
In the result, the appeal filed by the assessee is allowed.
Order pronounced on this 05th day of May, 2025.