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Facts
The assessee, M/s. Sahakari Shikshan Vikas Samooh Limited, filed appeals against the denial of exemption under Section 11 of the Income Tax Act for assessment years 2016-17 and 2018-19. The denial was primarily based on the belated filing of the audit report in Form 10B.
Held
The Tribunal held that the filing of the audit report in Form 10B is a directory provision and not mandatory. It noted that various judicial precedents support this view and that such reports can be uploaded during appellate proceedings. The Tribunal also condoned the delay in filing the appeals.
Key Issues
Whether the delay in filing the audit report in Form 10B can lead to the denial of exemption under Section 11 of the Income Tax Act.
Sections Cited
11, 12A, 12AA, 143(1), 250, 234A, 234B, 234C, 119(2)(b)
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, MUMBAI BENCH “G”, MUMBAI
Before: SHRI SATBEER SINGH GODARA & SHRI OMKARESHWAR CHIDARA
IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH “G”, MUMBAI
BEFORE SHRI SATBEER SINGH GODARA, JUDICIAL MEMBER AND SHRI OMKARESHWAR CHIDARA, ACCOUNTANT MEMBER
ITA No.1928/M/2024 Assessment Year: 2016-17 & ITA No.1927/M/2024 Assessment Year: 2018-19
M/s. Sahakari Shikshan Vikas Income Tax Officer Samooh Limited, (Exemptions) – 1 C/o Maratha High School, Ward2(3), Shivram Amrutwar Marg, 6th Floor, Vs. Worli, MTNL Telephone Maharashtra – 400 013 Exchange Building, PAN: AABTS7879Q Cumbala Hills, Peddar Road, Maharashtra- 400026 (Appellant) (Respondent)
Present for: Assessee by : Shri Dinesh Kukreja, A.R. Revenue by : Dr. Kishor Dhule, CIT D.R.
Date of Hearing : 16 . 07 . 2024 Date of Pronouncement : 24 . 07 . 2024
O R D E R Per : Satbeer Singh Godara, Judicial Member: These assessee’s twin appeals for assessment year 2016-
17 & 2018-19 arise against the Commissioner of Income Tax,
Appeal, Addl/JCIT(A)-2 Jaipur’s as many DINs & orders
No.ITBA /APL/S/250/2023-24/1059789932(1) & No.ITBA /
2 ITA Nos.1927 & 1928/M/2024 M/s. Sahakari Shikshan Vikas Samooh Limited APL /S /250/2023-24/1059777493(1) dated 17.01.2024 &
16.01.2024 respectively, in proceedings under section 143(1)
r.w.s. 250 of the Income Tax Act, 1961 (in short ‘the Act’).
Heard both the parties at length. Case files perused.
The assessee pleads the following identical substantial
grounds in the instant argument:
“1. On the facts and circumstances of the case and in law, the CPC erred in denying benefit of exemption u/s 11 of the Act to the appellant who is a co-operative society registered under Section 12A of the Income Tax Act, 1961 (hereinafter referred is as "Act")
On the facts and circumstances of the case and in law, the CPC erred in considering gross receipts of the appellant amounting to INR 2,66,67,210 as total income of the Appellant.
On the facts and circumstances of the case and in law, the CPC and learned JCIT(A) erred in denying exemption u/s 11 of the Act only on account of delay in filing of audit report by the appellant in Form 108.
On the facts and circumstances of the case and in law, availability of exemption u/s 11 of the Act cannot be decided by the CPC in an intimation issued u's 143(1) of the Act. 5. On the facts and circumstances of the case and in law, the CPC erred in not providing an intimation in writing or
3 ITA Nos.1927 & 1928/M/2024 M/s. Sahakari Shikshan Vikas Samooh Limited through electronic mode to the appellant of the adjustments proposed to made in accordance with first proviso to Section 143(1)(a) of the Act
On the facts and circumstances of the case and in law, the CPC and learned JCIT(A) have erred in taxing the gross receipts of the appellant without allowing deduction for expenses incurred by the appellant.
On the facts and circumstances of the case and in law, the CPC erred in levying consequential interest u/s 234A, 234B and 234C of the Act and in not granting credit for tax deducted at source totaling to INR 72,410.
The Appellant craves leave to, add to or alter, by deletion, substitution, or otherwise, any or all of the foregoing grounds of appeal at or before the hearing, and to submit such statements, documents, and papers as may be considered necessary either at or before the appeal hearing.”
Coming to the assessee’s sole substantial grievance
challenging both the learned lower authorities’ action denying
it section 11 exemption benefit, we note that the
additional/JCIT(A’s) lower appellate discussion to this effect
for the lead assessment year 2016-17 reads as under:
“5.1 Ground No. 1, 4 and 5 are general in nature and hence does not need any specific adjudication, Ground no 2 is regarding denial of exemption u/s 11 and 12 by the
4 ITA Nos.1927 & 1928/M/2024 M/s. Sahakari Shikshan Vikas Samooh Limited CPC. The ground no 2 raised by appellant is decided as under: Considering all the facts and submission of the appellant, it is noted that assessee filed its return of income for A.Y. 2016-17 on 16.03.2018 belatedly and had not uploaded Form 10B electronically within the due date as required under law. The appellant had uploaded audit report u/s 10B for A.Y. 2016-17 on 23.01.2021 which is way beyond the due date of filing said report. Hence, there was delay on the part of appellant in filing form 10B which is mandatory for claiming exemptions u/s 11 for institutions registered u/s 12A/12AA. As per the CBDT Circular 273 dated 3-6-1980, the CBDT has authorized the jurisdictional CIT/DIT to condone the delay in filing forms such as Form 10 & 10B. Thus, the CIT (A)/Additional CIT (A) have not been empowered u/s. 119(2)(b) of the Income- tax Act to condone the delay in filing Form 10B. Therefore, the appeal filed by the appellant on this ground is without merit and the same is dismissed. The appellant is requested to approach for remedy before the jurisdictional CIT/PCIT/DIT for condoning the delay in filing Form 10B and claim benefit of section 11 of the Act. Thus, the ground no. 2 raised by the appellant is hereby rejected.”
Suffice to say, the sole substantive issue between the
parties is that of denial of the impugned section 11 exemption
on account of the fact that the assessee had belatedly filed its
form 10B audit report beyond the prescribed due date.
5 ITA Nos.1927 & 1928/M/2024 M/s. Sahakari Shikshan Vikas Samooh Limited Learned counsel has attributed the delay thereof to its
chartered account’s sad demise which could not be properly
corroborated/explained in both the lower proceedings. The
fact, however, remains that various judicial precedents i.e.
Trust for Reaching the Unreached through Trustee vs. CIT(E)
(2021) 279 Taxman 229 (Guj. HC), JCIT (OSD) vs. Gujarat
Energy Development Agency (2023) 202 ITD 733 (Ahd.) have
already settled the issue that filing of such an audit report in
Form 10B is only a directory provision than a mandatory one,
which could also be uploaded in the course of appellate
proceedings. This tribunal in Nav Bharat Charitable Trust vs.
ITO (2023) 200 ITD 812 (Surat) further concludes that there is
no precondition for an assessee to file for condonation before
the CIT(Exemption) which could indeed be considered in
appellate proceedings. Faced with this situation, we reject the
learned departmental representative’s vehement contentions
inter-alia that the assessee has to mandatorily file/upload its
form 10B audit report within the due date or it must approach
the learned CIT(E) for condonation of the corresponding delay
therein; as the case may be, in very terms.
We accordingly accept the assessee’s install sole
substantive grievance in principle and leave it open for the
6 ITA Nos.1927 & 1928/M/2024 M/s. Sahakari Shikshan Vikas Samooh Limited learned additional/JCIT (Appeal) to reconsider the assessee’s
both the lower appeals afresh followed by their necessary
adjudication as per law in very terms after getting all the
necessary files verified in due course. Ordered accordingly.
Delay of 26 & 27 days each in filing of both the instant
appeals is condoned in light of assessee’s corresponding
condonation averments and in the interest of justice keeping in
mind Collector, Land Acquisition vs. MST Katiji [1987] 167 ITR
471 (SC) holding that all such technical aspects must make
way for the cause of substantial justice.
These assessee’s twin appeals i.e. ITA No.1927 &
1928/M/2024 are allowed for statistical purposes in above
terms. A cop of this common order be placed in the respective
case files.
Order pronounced in the open court on 24.07.2024.
Sd/- Sd/- (OMKARESHWAR CHIDARA) (SATBEER SINGH GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER
* Kishore, Sr. P.S.
Copy to: The Appellant The Respondent The CIT, Concerned, Mumbai The DR Concerned Bench
7 ITA Nos.1927 & 1928/M/2024 M/s. Sahakari Shikshan Vikas Samooh Limited
//True Copy//
By Order
Dy/Asstt. Registrar, ITAT, Mumbai.