SHREE VARDHMAN STANAKVASI JAIN SHRAVAK TRUST,AHMEDABAD vs. THE ITO, WARD-3(2)(1), AHMEDABAD

7. Charging of Interest u/s 234A, 234B, 234C are unjustified.”

Shree Vardhman Stanakvasi Jain Shravak Trust vs. ITO Asst.Year –2020-21 - 3– Accordingly, the assessee requested the JCIT(A) to delete the corpus donation of Rs. 17,96,000/-. However, the JCIT(A) dismissed the appeal of the assessee by holding that from the documents available on record, the assessee filed it’s return of income for the year on 31.05.2021, which was beyond the due date of filing return of income, (which was 15.02.2021). Further, JCIT(A) observed that the assessee had not filed Form 10B, which the assessee was required to do, if the total income of the Trust without giving effect to the provision of Sections 11 & 12 exceeds the maximum amount which is not chargeable to tax. The JCIT(A) held that failure to furnish such Audit Report in Form 10B within the prescribed Form, results in disentitlement of the trust from claiming exemption under Section 11 & 12 of the Act. Accordingly, the adjustments made by CPC were upheld by Ld. CIT(A).

5. The assessee is in appeal before us against the aforesaid order passed by Ld. JCIT(A).

6. Before us, the Counsel for the assessee submitted that the assessee had filed the Audit Report “physically” on 18.10.2022 (Acknowledgement has been attached before us for our perusal). Secondly, the Counsel for the assessee also took an argument that the assessee was not under any obligation to file Form 10B, since the income of the assessee was below the taxable limit. The Counsel for the assessee drew our attention to the Paper Book of the assessee as per which the gross income of the assessee was Rs. 79,000/- only and hence the same was below the minimum limit which was chargeable to tax. Accordingly, it was submitted that clearly Shree Vardhman Stanakvasi Jain Shravak Trust vs. ITO Asst.Year –2020-21 - 4– the assessee was not under an obligation to file Form 10B, looking into the assessee’s facts. The Counsel for the assessee drew our attention to Section 139(4A) of the Act, and submitted that if the income of the assessee is below the prescribed taxable limit, then the assessee was not under an obligation to file return of income in the first place. Accordingly, the Counsel for the assessee submitted that neither was the assessee under an obligation to file return of income nor was the assessee under an obligation to submit Form 10B and therefore, no additions were called for in the instant set of facts. Further, the Counsel for the assessee placed reliance in the case of Shree Swaminarayan Charitable Trust vs. ITO in wherein the ITAT is held that the late submission of Form 10B is a procedural default and once the assessee has subsequently filed Form 10B, additions cannot be made in the hands of the assessee on account of non-filing of Form 10B within the prescribed time.

“3. The issue before me pertains to delayed submission of Form no.10B which ld.counsel for the stated to be a technical default. He further submitted that ld.Bench of the ITAT, Ahmedabad rejected similar claim in the case of Association of Indian Panelboard Manufacturer Vs. DCIT, of 2022. However, the said decision of the ITAT was reversed by the Hon'ble Jurisdictional High Court by judgment dated 21.3.2023 reported in (2023) 157 taxmann.com 550 (Guj) holding that w.e.f. Astt.Year 2016-17 filing of form though mandatory in nature but procedural in nature, owing amendment made in Finance Act, 2015. In the present case, however, the ld.counsel for the assessee submitted that the same has been filed subsequently, and therefore, the above decision of the Hon'ble Jurisdictional High Court is squarely applicable. The relevant portion of the judgment of the Hon'ble High Court at para 6.1 is held as under: 6. The moot aspect thus centres around to the requirement of the availability of the audit report when the assessment was undertaken by the Assessing Officer even though the same may not have been filed alongwith (the return of income. Filing of audit report is held to be substantive requirement but not the mode and stage of filing, which is procedural Once the audit report in Form 12B is filed to be available with the Assessing Officer, before assessment proceedings take place, the requirement of law is satisfied. In that view, the Income Tax Tribunal was not justified in dismissing the appeal of the assessee. 6.1 The appellant assessee has to be held to be eligible and entitled to exemptions under section 11(1) and 11 (2) of the Act and. the alleged ground of non-filing of audit report alongwith return of income which was at the best procedural omission, could never to an impediment in law in claiming the exemption.

4. On the other hand, the ld.DR relied on the order of the ld.CIT(A).

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11. The ITAT Ahmedabad in this case has held that delay in submission of Form No. 10B is a procedural defect and once the said Form has been filed during the course of hearing, no disallowance is called for on account of late / delayed filing of Form No. 10B. In the instant case, we observe that the assessee had filed Form No. 10B before Ld. JCIT(A) before conclusion of appellate proceedings. Accordingly, in view of the aforesaid decision of Ahmedabad Tribunal, exemption under Sections 11&12 of the Act cannot be denied to the assessee only on account of late filing of Form No. 10B. Accordingly, in light of the above observations, the appeal of the assessee is allowed.