DESH BHARTI PUBLIC SCHOOL SAMITI,LUCKNOW vs. AO EXEMPTION, LUCKNOW

Because in any case and in all circumstances of the case, the order passed by the CIT{A) is bad in law and be quashed.”

The ld. AR at the outset submitted that the assessee has been claiming exemption u/s.10(23C) in the earlier years and during the year under consideration the assessee had got registration u/s. 12A of the Act and in this respect our attention was invited to P.B. pg. 24 where a copy of registration u/s. 12A dated 02.09.2014 effective from 1.4.2012. It was submitted that the assessee by mistake in the return of income filled the claim of exemption u/s.10(23C) of the Act as against u/s. 12A of the Act whereas the assessee had obtained the audit form in Form-10B as required u/s. 12A(b) and had uploaded the same along with return of income. It was submitted that the CPC on the basis of return filed by the assessee rejected the claim of the assessee u/s.10(23C) by holding that since the receipt of the assessee exceeded Rs.1.00 crore therefore the exemption u/s.10(23C) was available to the assessee only if the assessee had obtained necessary approval and which it had not obtained. The ld. AR submitted that assessee filed rectification application u/s. 154 which was also rejected and appeal filed before ld. CIT(A) was also rejected. The ld.AR submitted that since the assessee had by mistake claimed exemption under a wrong section and all other documentary evidences regarding existence of registration u/s. 12A and uploading of audit report u/s. 12A was available with the Revenue, there was necessarily a mistake apparent from record which the CPC should have rectified or in the alternative the ld. CIT(A) should have allowed the claim by the assessee. Therefore it was prayed that the appeal filed by the assessee may be allowed and Assessing Officer be directed to allow the claim of assessee u/s. 12A of the Act.

The ld. CIT (DR), on the other hand, submitted that filing of return is done by the professionals and therefore it cannot be accepted that the mistake had happened due to mistake by a Clerk. He submitted that since necessary approval has not been obtained and the receipt of the assessee exceeded Rs.1.00 crore therefore CPC had rightly rejected the claim u/s.10(23C) of the Act and since there was no mistake apparent from record, CPC has rightly rejected the same and ld. CIT(A) has rightly rejected the same as there was no mistake apparent from record.

We have heard the rival parties and have gone through the material placed on record. We find that it is undisputed fact that assessee got registration u/s.12A of the Act w.e.f. 1.4.2013 vide order dated 2.9.2014, a copy of such registration certificate is placed in P.B. pg.24. It is also an undisputed fact that assessee in the earlier years has been claiming exemption u/s.10(23C) of the Act and which was being allowed by the department also as the receipt of the assessee in the earlier years were less than Rs.1.00 crore. During the year under consideration, the assessee got the registration u/s.12A of the Act on 2.9.2014 and filed the income tax return on 20.9.2014. Along with filing of return of income, the assessee also uploaded Form-10B which is audit report u/s. 12A(b) of the Act. However, in the return of income, the assessee claimed exempt income u/s.10(23C) instead of claiming the same u/s.12A of the Act. The CPC rejected the claim of the assessee u/s.10(23C) by holding that the assessee had not obtained necessary approval from the prescribed authority and the receipts of the assessee exceeded Rs.1.00 crore. The application for rectification u/s.154 was also rejected and on appeal before ld. CIT(A), the ld. CIT(A) also dismissed the appeal of the assessee by first holding that there was no mistake apparent from record and further held that there is lot of difference between the claim of exemption u/s.10(23C) and Section 11 of the Act. However, nowhere in the appellate order the ld. CIT(A) disputed the fact that assessee was not registered u/s.12A of the Act. The registration certificate granted by the department on 2.9.2014 is on record. Further the uploading of Form-10B which is a audit report u/s.12A(b) of the Act, proves that the mistake committed by assessee in claiming exemption u/s.10(23C) is inadvertent mistake as by committing such a mistake the assessee is not going to gain anything. Fact of the matter is that assessee is registered u/s.12A of the Act and is eligible for exemption u/s.11 of the Act. Therefore for inadvertent mistake the assessee cannot be penalized. Since the assessee has been claiming exemption u/s.10(23C) in the earlier years therefore during the year under consideration there is high probability that assessee again claimed exemption u/s.10(23C) by overlooking the fact that it had already got registration u/s.12A of the Act which in any case was available with the assessee before the filing of return of income. The mistake has occurred as a human error and should have been judicially considered. The CBDT vide Circular No.14 (XL- 35) dated 11.4.1955 in Para 3 has held as under: “Officers of the Department must not take advantage of ignorance of an assessee as to his rights. It is one of their duties to assist a taxpayer in every reasonable way, particularly in the matter of claiming and securing reliefs and in this regard the Officers should take the initiative in guiding a taxpayer where proceedings or other particulars before them indicate that some refund or relief is due to him. This attitude would, in the long run, benefit the Department for it would inspire confidence in him that he may be sure of getting a square deal from the Department. Although, therefore, the responsibility for claiming refunds and reliefs rests with assessees on whom it is imposed by law, officers should:—

In view of above facts and circumstances, we direct the Assessing Officer to allow the exemption to the assessee u/s.12A of the Act in accordance with law.

In the result, the appeal of the assessee is allowed.