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Income Tax Appellate Tribunal, DELHI BENCHES : A : NEW DELHI
Before: SHRI M. BALAGANESH & SHRI VIMAL KUMAR
ORDER PER VIMAL KUMAR, JM:
The appeal filed by the assessee is against the order dated 25.11.2024 of the ld. Commissioner of Income-tax (Appeals), Mumbai [hereinafter referred to as the Ld. CIT(A)] u/s 250 of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) arising out of the assessment order dated 20.06.2024 of the ld. AO/AO, CPC, Bengaluru (hereinafter referred to as ‘the ld. AO’) u/s 143(1) of the Act for Assessment Year 2021-22.
The brief facts of the case are that the assessee filed return of income on 29.04.2024 declaring the total income at Rs.39,450/-. The return of income was processed u/s 143(1) of the Act on 20.06.2024 wherein the CPC disallowed exemption claimed u/s 11(1) of the Act of Rs.72,33,450/-.
Against the order dated 20.06.2024 of the ld. AO, the appellant-assessee preferred appeal before the ld.CIT(A) which was dismissed, vide order dated 25.11.2024.
Being aggrieved, the appellant-assessee preferred the present appeal with the following grounds of appeal:-
1. That the order dated 25.11.2024 passed u/s 250 of the Income tax Act. 1961 (hereinafter called the "Act") by the Addl. Commissioner of Income Tax (Appeals)-5, Mumbai is against law and facts on the file in as much as he was not justified to uphold the action of the ld. DCIT, CPC, Bangalore in computing total income at Rs.72,72,901 - as against Rs 39,450/- as per return of income filed by the Appellant Trust.
2. That the order dated 25.11.2024 passed u/s 250 of the Act by the. Addl. Commissioner of Income Tax (Appeals)-5, Mumbai is against law and facts on tire file in as much as he was not justified to uphold the action of the Ld DCIT, CPC, Bangalore in adding hack a sum of Rs.72,33,451 - being allowable expenditure towards application of income for charitable or religious purpose which was incurred by the foundation by ignoring the fact that expenditure incurred by the Foundation is exempt under the Act.
3. That the order dated 25.11.2024 passed u/s 250 of the Act by the Addl. Commissioner of Income Tax (Appeals)-5. Mumbai is against law and facts on the file in as much as he was not justified to uphold the action of the Ld. DCIT, CPC, Bangalore in making the said adjustments as the same fall beyond the scope of the provisions of Section 143(1) of the Income-tax Act, 1961.
4. That the order dated 25.11.2024 passed u/s 250 of the Act by the Addl. Commissioner of Income Tax (Appeals)-5, Mumbai is against law and facts on the file in as much as he was not justified to pass the order ex parte without giving the Appellant an opportunity of being heard.
5. That the Appellant craves to add, amend, alter, modify or delete any or all of the grounds of appeal before or at the time of hearing.”
The ld. AR for the assessee submitted that the ld.CIT(A) while passing the ex parte order failed to appreciate that due date for submitting Form 10B was 15th February, 2022. The Form 10B was filed on 19.02.2022, so, there was delay of four days in filing the Form 10B. The competent authority had power to condone the delay in filing the form. Reliance was placed on the following decisions:-
(i) Sampoorna Seva Charitable Trust vs. ITO (Exemption) (2025) 172 taxmann.com 161 (Delhi-Trib.); (ii) Sampoorna Seva Charitable Trust vs. ITO (Exemption) (2025) 175 taxmann.com 282 (Delhi-Trib.); (iii) Bhagwant Kishore Memorial Educational Society vs. ITO (Exemption) (2024 166 taxmann.com 511 (Delhi-Trib); (iv) Shri Namiyun Parswanath Jain Swetamber Manidhari Trust vs ITO (E) (2023) 155 taxmann.com 407 (Jabalpur-Trib.); (v) Riddhi Seva Kendra vs. ADIT (2025) 175 taxmann.com 991 (Kolkata- Trib.); &
(vi) Shiksha Foundation vs. ITO (E) (2024) 164 taxmann.com 757 (Ahmedabad-Trib.)
The ld. DR relied on the impugned orders.
From examination of the record in the light of the aforesaid contentions, it is crystal clear that copy of audit report in Form 10B dated 12.01.2022 was filed on 19.02.2022 which was required to be filed on 15.02.2022, so, there was delay of four days in filing Form 10B.
8. A coordinate Bench of the ITAT, Delhi in in the case Puran Chand Arora Charitable Trust vs. ITO, Exemptions, vide order dated 22.01.2025, in paras 7 to 10 has held as under:- “7. Considered the rival submissions and material placed on record. We observed that assessee has obtained audit report in Form 10B before filing the return of income, however filed the same only on 20.03.2020. We observed that audit report date is prior to the date of filing of return of income and it is a procedural lapse on part of the assessee and it has filed Form 10B before its assessment completed u/s 143(1) of the Act. The claim of the assessee u/s 11 (1)(a) of the Act was denied with the reason that it has filed Form 10B after filing the return of income.
We have gone through the decisions relied upon by the assessee. In this regard, we observed that the ITAT, Delhi, on the same facts, in the case of ACIT vs. Green Dot Health Foods Pvt. Ltd. in 2019 dated 06.02.2023 decided the issue in favour of the assessee relying on the decision of Hon’ble Delhi High Court in the case of CIT vs. Contimeters Electrical (P) Ltd. (2009) 178 taxman 422 (Delhi). We also find that in the case of Green Dot Health Foods Pvt. Ltd. (supra), the coordinate Bench has considered the exact similar case and allowed the claim by observing as under :- "7. We have heard the rival submissions and perused the material available on record. The issue in the present ground is about the denial of 4
claim of deduction u/s 80IC of the Act by AO but allowing the claim of the assessee by CIT(A). The only reason for denying the claim of deduction u/s 80IC of the Act by AO was that the Form 10CCS was uploaded by the assessee on the website of the Income-tax Department on 10.11.2017 whereas the return of income was filed on 24.10.2017 and 10 the return of income was processed u/s 143(1) of the Act on 30.10.2018. We find that CIT(A) while deciding the issue in favour of the assessee has given the finding that though there was delay in upholding Form 10CCB but the same was uploaded before the return of income was processed u/s 143(1) of the Act. For allowing the ground of assessee, CIT(A) had relied on the decision of Hon'ble Delhi High Court in the case of CIT vs. Contimeters Electricals (P.) Ltd. [2009] 178 Taxman 422 (Delhi) and other decision We find that Hon'ble Apex Court in the case of CIT vs. G Knitting Industries (P.) Ltd. (2017) 71 taxmann.com 35 (SC) has held even though Form 10CCB was not filed along with the return of income but when the same was filed before the final order of assessment was made, assessee was entitled to claim deduction. Before us, Revenue has not pointed to any contrary binding decision in its support nor has pointed to any fallacy in the findings of CIT(A). We, therefore, find no reason to interfere with the order of CIT(A) and thus the ground of Revenue is dismissed." We find that as per the above findings, coordinate Bench has allowed the claim of the assessee for the reason that the assessee has filed Form 10CCB before completion of the 143(1) proceedings.
9. The facts in the present case are exactly similar and the filing of Form 10B is directory to facilitate the assessment and not mandatory. The assessee is running charitable trust and carried on charitable activities over the years, mere non-filing of Form 10B which is directory in nature cannot be the reason to deny the benefit extended by the statute, therefore, we are inclined to allow the claim of the assessee by relying on the findings of coordinate Bench of the Tribunal in the case of Green Dot Health Foods Pvt. Ltd. (supra).
10. In the result, the appeal filed by the assessee is allowed.”
In view of the above material facts, by respectfully following the judicial precedent, it is held that on the facts of the present case, the filing of Form 10B is directory to facilitate assessment and not mandatory. The assessee who has been running a charitable trust and carrying on charitable activities over the years cannot be denied the benefit extended by the statute. Therefore, the impugned orders are set aside. The grounds of raised by the assessee are allowed.
In the result, the appeal of the assessee is allowed.