SHRI DANDI SEWA ASHRAM,ONKARESHWAR vs. INCOME TAX OFFICER EXEMPTION , BHOPAL

2.2 That the assessee being aggrieved by the aforesaid “impugned order made u/s 154 of the act” prefers the first appeal u/s 246A of the act before the Ld. CIT (A) who by the “impugned order” had dismissed the first appeal of the assessee on the grounds and reasons stated therein. The core grounds and reasons for the dismissal of the first appeal were as under:-

“6. In the instant case, order u/s 154 of the Act was passed by the Assessing Officer disallowing the exemption claimed u/s 11 of the Act. The AO has in his order has stated that the assessee has filed a belated return on 30.03.2018 for the said assessment year, however, has not fled the audit report in Form 108. Accordingly. the AD rejected the claim off exemption and the addition made by AO, CPC was sustained by him. Now, the appellant has pleaded that the Jurisdictional Assessing Officer erred in rejecting its claim.

With respect to AY 2017-18, Assessee is registered us 124/12AA of the IT Act, 1961. Copy of Certificate from The Principal Commissioner of Income Tax Bhopal is enclosed. It is submitted that there was snake white ling ITR wherein Assessee has claimed exemption u/s 10(24) but it pertains to section f in ITR. Further we would like to submit that non filing of Audit report is for 108 is not an impediment for exemption claims. We would like to draw attention to the case law of Hari Gyan Pracharak Trust Vs DCIT (ITAT Ahmedabad) which states that non filing of Audit Report along with return of income is a procedural omission and cannot be an impediment in law in claiming the exemption. As such it is requested to consider the clerical mistake and accept the registration certificate for rectification order

The subsection 1 of Section 12A prescribes that the provisions of Section 11 & 12 shall not apply in relation to the income of any trust or institution unless the conditions laid down thereunder are fulfilled. One of the mandatory conditions prescribed in Clause (b) is the audit of the books of accounts of trust or the institution and the filing of the report of such audit in Form 108 along with the return of income. The provisions of section 12A clause (b) are reproduced hereunder for easy reference: "12A (1) The provisions of section 11 and section 12 shall not apply in relation to the income of any trust or institution unless the following conditions are fulfilled, namely:-

[(b) where the total income of the trust or institution as computed under this Act without giving effect to the provisions of sections 11 and 12 exceeds the maximum amount which is not chargeable to income-tax in any previous year, the accounts of the trust or institution for that year have been audited by an accountant defined in the Explanation below sub-section (2) of section 288 and the person in receipt of the income furnishes along with the return of income for the relevant assessment year the report of such audit in the prescribed form duly signed and verified by such accountant and setting forth such particulars, as may be prescribed:]"

CIRCULAR NO. 10 (F.NO.197/55/2018-ITA-1]

SECTION 12A, READ WITH SECTION 119 OF THE INCOME TAX ACT, 1961-CHARITABLE OR RELIGIOUS TRUST REGISTRATION OF CONDONATION OF DELAY IN FILING OF FORM NO. 10B FOR YEARS PRIOR TO ASSESSMENT YEAR 2018-19

CIRCULAR NO. 10 (F.NO.197/55/2018-ITA-1), DATED 22-5-2019

Under the provisions of section 12A of Income-tax Act, 1961 (hereafter 'Act) where the total income of a trust on institution as computed under the Act without giving effect to the provisions of section 11 and section 12 exceeds the maximum amount which is not chargeable to Income-tax in any previous year, the accounts of the trust or institution for that year have to be audited by an accountant as defined in the Explanation below sub-section (2) of section 288 and the person in receipt of the income is required to furnish along with the return of income for the relevant assessment your the report of such audit in the prescribed form duly signed and verified by such accountant and setting forth such particulars as may be prescribed.

3. Representations have been received by the Board/field authorities stating that Form No. 10B could not be filed along with the return of income for AY 2016 17 and AY 2017-18. It has been requested that the delay in filing of Form No. 10B may be condoned. Previously, vide instruction in F.No. 267/482/77- IT(part), dated 9-2-1978, the CBDT had authorized the ITO to accept a belated audit report after recording reasons in cases where some delay has occurred for reasons beyond the control of the assessee.

(1) The delay in filing of Form No. 108 for AY 2016 17 and AY 2017-18, in ail such cases where the Audit Report for the previous year has been obtained before the filing of return of income and has been furnished subsequent to the filing of the return of income but before the date specified under section 139 of the Act is condoned.

(ii) In all other cases of belated applications in filing Form No. 10B for years prior to AY 2018-19, the Commissioners of Income-tax are authorized to admit such applications for condonation of delay under section 119(2)(b) of the Act. The Commissioners will while entertaining such belated applications in filing Form No. 10B shall satisfy themselves that the assessee was prevented by reasonable cause from filing such application within the stipulated time.

1[Further, all such pending applications as well as applications received henceforth shall be disposed off preferably within three months from the end of the month in which the application is received.]

"Considering the hardship faced by the assessee, the CBDT issued Circular No. 7/2018, authorizing Commissioner of Income- tax, to admit belated application in Form No. 10 in respect of Assessment Year 2016-17 which were filed belatedly Thus, the finding of the Id. CIT(A) that, he has no power in condoning the delay in filing Form 10B is legally correct in law. As rightly argued by the Ld. D.R., the assessee seems to be consistently filing the above Form 10B belatedly, for which proper remedy left to the assessee is approaching the Administrative CIT, who is to condone the delay but not with filing appeal u/s. 250 of the Act. We do not find any infirmity in the order passed by the Ld. CIT(A) and it has open to the assessee to avail the appropriate legal remedy in accordance with Income-tax Act. We also further found that the case laws relied upon by the Ld. Senior Counsel will not be applicable to the present case, since in the case of Mayur Foundation cited (supra) wherein the Assessment year involved is 1980-81 and in the case of Xavier Kelavani Mandal (P.) Ltd. cited (supra) wherein the Assessment Year involved is 2006-07. In our considered view, filing of Form 10B is being mandatory because of the amendment made in Finance Act, 2015 with effect from 1-4- 2016 applicable for the Assessment Year 2016-17, Therefore the above case laws are clearly distinguishable to the facts of the present case. Thus, the grounds raised by the assessee are hereby rejected and the appeal filed by the Assessee is dismissed."

11. In the above circumstances, when the power to condone the delay has been vested with the Commissioner of Income tax and the appellant has chosen not to approach the said authority, the appeal before the undersigned has no merit. Hence, the ground of appeal raised by the appellant is treated as dismissed.

12. In the result, the appeal of the appellant is dismissed.”

2.3 The assessee being aggrieved by the “impugned order” has preferred the instant second appeal before this tribunal and has raised the following grounds of appeal in the form no. 36 against the “impugned order” which are as under:-

Shri Dandi Sewa Ashram A.Y.2017-18 “1. The delay in filing the appeal may please condoned. The affidavit is enclosed herewith. The email address was given of the counsel who did not inform the assessee about the order. Since there was a reasonable cause, the delay in filing the appeal may kindly be condoned.

2. The Ld. AO has erred in rejecting the application u/s 154 and the Ld. CIT(A) NFAC has erred in maintaining the order.

3. The Ld. NFAC erred in not considering the judgment of the Hon. Tribunal in the case of Shri Vaishnav Polytechnic College vide wherein it has been held that only net income should be considered for taxation.

4. The Ld. CIT(A) NFAC has erred in upholding the order of the Ld. AO and not granting the exemption u/s 11 of the IT Act and not considering the judgment of the Hon. Tribunal in the case of Indore Contract Bridge Association. The addition may please be deleted.

Shri Dandi Sewa Ashram A.Y.2017-18 order” is dated 13/06/2024 whereas instant appeal was filed on 28/06/2025. It was submitted that the “impugned order” was sent on email address incu556@gmail.com which was of the assessee’s counsel. The counsel had not updated the assessee in time and hence the delay took place.

Affidavit 17/01/2026 is finally placed on record rectifying the earlier affidavit dated 12/06/2025 were in fact a mistake had happened on email id. In the earlier affidavit dated 12/06/2025 it was stated that “impugned order” was sent on dlmahoday24@gmail.com which was of the secretary of the assessee trust whereas in the affidavit a rectified one it is stated that email was of counsel i.e. incu556@gmail.com where the impugned order was sent and that assessee was not updated by the counsel. It was therefore prayed that delay is not deliberate. The reason given is a bonafide one and same may please be condoned by this tribunal in the interest of justice and so also on ground that sufficient cause is shown. Per contra the Ld. DR appearing for and on behalf of the revenue contended that he leaves the issue of delay to the wisdom of this tribunal. After perusing both the Page 9 of 18

Shri Dandi Sewa Ashram A.Y.2017-18 affidavits (supra) on issue of condonation of delay and so also after hearing both the sides we are of the considered opinion that cause of delay as presented to us is reasonable.

We do not see any deliberate negligence on the part of the assessee in preferring the instant appeal belatedly. Sufficient cause is shown. Accordingly we condone the delay. Appeal admitted and taken up for hearing.

3.2 The Ld. AR has placed on the record of this tribunal PB containing pages 1 to 67.A one pager chronological table.

ITR-7 for AY 17-18 bearing no: - 567739291300318. Our attention was invited to PB Page 23 which is an “order u/s 154 of the act” dated 22/04/2025 same was read out.

Attention was invited to recovery letter dated 18/02/2025 on page 16 of PB. Our attention was invited to ITR 7 ACK No: - 567739291300318 and on page 1 under caption “section under which exemption claimed if any (see instruction Para 11e)” section 10(24) is mentioned /claimed for AY 17-

Shri Dandi Sewa Ashram A.Y.2017-18 u/s 12A/12AA under serial no. c (i) of ITR-7. Basis Page 4 of ITR-7 it was contended that assessee trust is liable for “audit” under the act. Name of the auditor signing the audit report (AR) was one “CA Ankur Goyal” and date of audit report is 05/09/2017. Date of furnishing the audit report is 22/03/2018. Basis Page 5 of ITR-7 it was contended that aggregate income was Rs. 28,26,089/-. Application of income was of Rs. 25, 94,568/-. Amount accumulated or set apart for application not exceeding 15% was Rs. 2,31,521/-. It was stated that on Page 5 of ITR-7 section 10(24) was not claimed.

3.3 The Ld. AR then submitted that the Ld. AO finding in the “impugned order u/s 154” is wrong and incorrect. In ITR-7 10B report [mandatory audit report for trusts] claimed basis page 4 of ITR-7. A little later Ld. AR stated that 10B was not filed/ not obtained. Attention was invited to Page 9 of PB showing balance sheet as on 31/03/2017 signed on 05/09/2017 by CA Ankur Goyal. Next our attention was invited to PB Page 5 form no: - 10B bearing ACK no:-

123357100070625 [07/06/2025] filed on 07/06/2025 whereas date of impugned order of the Ld. CIT(A) is dated

Shri Dandi Sewa Ashram A.Y.2017-18 13/06/2024. The Reliance was placed on order of ITAT Indore dated 18/04/2023 in ITA no:- 403/Ind/2022 in case of Indore contract bridge association v/s CPC Bangalore Page 25-29 of PB. Basis Page 26 & 27 it was contended that audit report therein u/s 10B was filed before filling appeal to CIT (A). It was also contended that ITAT is a final fact finding authority and assessment proceedings are in continuation in this regard should be appreciated. Income is computed basis gross amount receipt and not net amount attention was invited to page 8 to 14 of PB.

3.4 Per contra the Ld. DR appearing for the revenue submitted that ITR was processed u/s 143(1) of the act and demand was created. Later the assessee filed an application for rectification u/s 154 which culminated in the “impugned order u/s 154 of the act”. The order u/s 154 is dated 30/12/2021. Till this stage also the assessee has not made any attempt to file the form 10B (AR). Even before the CIT (A) when the impugned order was passed on 13/06/2024 and prior thereto form 10B was not filed. Even after expiry of one year from 13/06/2024 the form 10B was filed on Page 12 of 18

Shri Dandi Sewa Ashram A.Y.2017-18 07/06/2025. The Ld. DR emphatically contended that if time limit is to be reckoned from the Ld. AO impugned rectification order dated 30/12/2021. There is a delay of nearly 4 years. The delay is huge. No attempt made by assessee to file at earlier point of time cases relied upon is distinguishable perse on the facts and circumstance. Appeal of assessee should be dismissed. With regard to alternative argument of the Ld. AR that net income should be assessed should not be considered in light of peculiar facts and circumstances of the case. Provisions of the act must be given meaning and assessee not to break or give a tainted look to the statutory provision which is mandatory. In the rejoinder argument the Ld. AR then fairly submitted that mistake is on the part of CA and that CA of the assessee did not file form 10B. It then by the Ld. DR that once audit report is in place long ago it ought to have been filed, there cannot be excuses. In sur rejoinder the Ld. AR submitted that 12A and 80g registration of the assessee is in place and valid. The hearing was concluded.

4. Observations Findings & conclusions 4.1 We now have to decide the legality validity and the proprietary of the “Impugned Order” basis records of the case and Rival Contentions canvassed before us.

4.2 We have carefully perused the records of the case and have heard the submissions.

4.3 We basis records of the case & after hearing & upon examining the rival contentions of the Ld. AR & the Ld. DR canvassed before us, are of the considered opinion that the impugned order of Ld. CIT (A) needs our interventions at second appellate stage as in the ultimate analysis of the facts and circumstances of the facts and circumstances of the case the position which has emerged is form no: - 10B stands filed on 07/06/2025 though belatedly. The substantive benefit of it must go to the assessee. The Ld. AR after a detailed analysis of the case during the hearing and after hearing the Ld. DR fairly stated that for mistake of CA concerned the assessee should not suffer. The Ld. AR has also demonstrated before us that all books of account

Shri Dandi Sewa Ashram A.Y.2017-18 including p/c a/c, income and Exp a/c balance sheet etc. were in the place on 05.09.2017. Even in the ITR-7 there is reference of audit report which was dated 05.09.2017 [Page 4 of ITR-7]. The ITR was filed on 30.03.2018 hence this document [form 10B] was very much available and was belatedly placed on record on 07.06.2025 [Page5 PB] which date is prior to the filling of present instant appeal on 28.06.2025 before this tribunal. Under these peculiar facts and circumstance we are of the considered opinion that the ends of justice would be met if the “impugned order” is set aside and matter is remanded back to the file of Ld. AO so that he/she can examine the form 10B (AR) a fresh = (4.4).

Hence we set aside the “impugned order” as and by way of remand back to the file of Ld. AO, with admonition to the assessee trust that such leeway on account of mistake of CA would not be given on any subsequent occasions. It should not be forgotten that procedures and time limit are laid down under the act to be followed and not to be flouted at whims and fancy of assessee. Assessee is a trust and has a valid certificate u/s 12A and 80g too meaning thereby that their

Shri Dandi Sewa Ashram A.Y.2017-18 aims, objects and operations are for the welfare of people at large. In this circumstance we have set aside the impugned order and have remanded the matter to Ld. AO on De novo basis. This order should not be considered as binding precedent for others to flout laws and procedures. The assessee cannot fail to follow the time line which is essential and vital for smooth functioning of tax administration. The Ld. DR has made a “grievance” of it be it noted, by the assessee trust. However the date of the audit report in ITR- 7(supra) is not questioned by the Ld. DR for revenue. i.e.

05.09.2017.

4.4 In the premises drawn up by us, we set aside the “impugned order” as and by way of remand to the Ld. AO with a direction to consider the form no:-10B(AR) and pass suitable order on total income of the assessee after making necessary due diligence and verification as he/she may deem fit. The assessee is directed to cooperate with the department of Income tax. Before parting we observe and say that for mistake of CA/ counsel the assessee should not suffer and substantive benefit accruing to assessee basis audit report

Shri Dandi Sewa Ashram A.Y.2017-18 10B whose filling is procedural requirement which up on delay too can be condoned by the concerned authorities under the act shows that delayed filing is directory in nature and benefit of it cannot be denied. It is not a case of no audit report at all on record. Core issue was not filling of it only. Reference of it is in ITR-7.

5 Order 5.1 In the result the “Impugned order” is set aside as and by way of remand back to the file of the Ld. AO with direction as aforesaid.

5.2 In result appeal is allowed for statistical purpose.

Pronounced in open court on 27.02.2026.