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Income Tax Appellate Tribunal, BANGALORE BENCHES “SMC-B”, BANGALORE
Before: Shri George George K
IN THE INCOME TAX APPELLATE TRIBUNAL BANGALORE BENCHES “SMC-B”, BANGALORE
Before Shri George George K, Judicial Member ITA No.694/Bang/2020 : Asst.Year 2017-2018 Yoga Niketan The Dy.Commissioner of No.25/1, Ranga Rao Road Income-tax (CPC) v. Shankarpuram Bangalore Bangalore – 560 004. PAN : AAATY3150F. (Appellant) (Respondent) Appellant by : Smt.Suman Lunkar, CA Respondent by : Sri.Ganesh R.Ghale, Standing Counsel Date of Date of Hearing : 21.01.2021 Pronouncement : 21.01.2021 O R D E R This appeal at the instance of the assessee is directed against CIT(A)’s order dated 16.09.2020. The relevant assessment year is 2017-2018.
The grounds raised read as follows:-
The learned Deputy Commissioner of Income Tax (CPC) had erred in making the Intimation in the manner made by him and the learned CIT(A) has erred in confirming the same. The order passed by Deputy Commissioner of Income Tax (CPC) and as confirmed by CIT(A) is bad in law and liable to be quashed. 2. The learned Assessing Officer (CPC) has erred in denying the exemption u/s. 11 of the Act on the ground that the audit report in Form 10B has not been filed before filing the return of income and learned CIT(A) has erred in confirming the same. The audit report in Form 10B was obtained well before the date of filing return of income and also the same was uploaded within the due dates prescribed u/s. 139 of the Act. On the facts and circumstances of the case and law applicable, the appellant is entitled to the claim of exemption u/s. 11 of the Act. The confirmation of denial of exemption by CIT(A) is on an erroneous premise and such confirmation is to be deleted. 3. The appellant denies the liability to pay Interest u/s. 234B and 234C of the Act. The Interest having been levied
2 ITA No.694/Bang/2020 Yoga Niketan erroneously is to be deleted. 4. In view of the above and on other grounds to be adduced at the time of hearing, it is requested that the impugned Intimation made by the Deputy Commissioner of Income Tax (CPC) and as sustained by CIT(A) be quashed or atleast the exemption u/s. 11 of the Act as claimed by the appellant be allowed, income returned be accepted and interest levied be deleted.”
The brief facts of the case are as follow: The assessee is registered u/s 12A of the I.T.Act. For the assessment year 2017-2018, the return of income was filed on 10.08.2017 under the status of “Trust”, declaring `Nil’ income. The gross receipts of Rs.7,48,272 was taxed in the intimation issued by the A.O. u/s 143(1) of the I.T.Act for the reason that the assessee has not filed audit report in Form No.10B.
Aggrieved by the order of assessment, the assessee preferred an appeal to the first appellate authority. The CIT(A) after reproducing Circular No.2 of 2020 dated 03.01.2020, held that the delay in filing Form No.10B cannot be condoned because the assessee has not filed the same within the specified due date u/s 139 of the I.T.Act. According to the CIT(A), the specified due date for filing the return as per Explanation 1(b) to section 139 is 30.06.2017 and since the audit report was filed on 11.08.2017, the delay cannot be condoned. The relevant finding of the CIT(A) reads as follow:-
“4.2.3 The appellant strongly contended that he has filed the return of income within due date and due to oversight the audit report was filed the next day, on 11.08.2017. The contention of the appellant has been considered carefully. As per CBDT Circular above, filing of audit report in Form 10B belatedly but before the specified date u/s 139 can be condoned. The specified date u/s 139 (as per explanation 1(b) to Sec.139) is
3 ITA No.694/Bang/2020 Yoga Niketan 30/06/2017. So the Audit report filed by the assessee on 11.08.2017 is beyond specified date. Further it is seen from records that the assessee neither applied for condonation before CIT (Exemption) nor CIT (Exemption) granted the same. Accordingly keeping the totality of the facts in mind the ground of the assessee raised in Ground No.2 & 3 is rejected.”
Aggrieved, the assessee has preferred this appeal before the Tribunal. The learned AR contended that the CIT(A) has erred in holding that the due date for filing the return of income was 30.06.2017. The learned AR submitted that the due date for filing the return of income as per Explanation 2 to section 139(1) is 30.09.2017. It was stated that since the audit report was filed on 11.08.2017 (i.e. within the due date specified) in view of Circular No.2/2020 dated 03.01.2020, the inadvertent delay in filing the audit report in Form No.10B by one day ought to be condoned.
The learned Standing Counsel supported the order of the CIT(A).
I have heard rival submissions and perused the material on record. As per Explanation 2(a)(ii) to section 139(1) of the I.T.Act, the due date for filing the return in assessee’s case is 30.09.2017. The provision referred by the CIT(A), namely, Explanation 1(b) to section 139 of the I.T.Act is not concerned with due date for filing of return of income. If the CIT(A) has referred to Explanation 1(b) to Sec.139(8), the same is inapplicable for the present assessment year (refer Explanation 2(c) to Sec.139(8) of the I.T.Act). Therefore, the CIT(A) has referred to specified due date, which is not applicable to the facts of the instant case. Admittedly, the audit report was filed
4 ITA No.694/Bang/2020 Yoga Niketan on 11.08.2017 and the due date in the facts of this case for filing the return of income was on 30.09.2017. Therefore, in view of Circular No.2/2002 dated 03.01.2020, the delay of one day in filing the audit report in Form No.10B along with return is condoned since the same was filed with specified due date, i.e. 30.09.2017. It is ordered accordingly.
In the result, the appeal filed by the assessee is allowed.
Order pronounced on this 21st day of January, 2021. Sd/- (George George K) JUDICIAL MEMBER Bangalore; Dated : 21st January, 2021. Devadas G* Copy to : 1. The Appellant. 2. The Respondent. 3. The CIT(A)-14, Bangalore. 4. The CIT (Exemptions), Bangalore. 5. The DR, ITAT, Bengaluru. 6. Guard File. Asst.Registrar/ITAT, Bangalore