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Assessee represented by Shri Sapnesh Sheth, C.A. Department represented by Shri Vinod Kumar, Sr. DR Appeal instituted on 26/09/2023 Date of hearing 21/12/2023 Date of pronouncement 21/12/2023 Order under Section 254(1) of Income Tax Act PER: PAWAN SINGH, JUDICIAL MEMBER: 1. This appeal by the assessee is directed against the order of National Faceless Appeal Centre, Delhi (NFAC)/learned Commissioner of Income Tax (Appeals) [in short, the ld. CIT(A)] dated 07/06/2023 for the Assessment Year (AY) 2020-21. The assessee has raised following grounds of appeal: “(1) On the facts and circumstances of the case as well as on the subject, the ld. CIT(A), NFAC has erred in confirming the action of ADIT(CPC) in making huge addition by disallowing the amount claimed as application of income and accumulation of income although audit report in Form 10B was uploaded on portal and the delay in filing of audit report was condoned by ld. CIT(E). (2) The appellant craves leave to add, alter, or delete any ground(s) either before or in the course of hearing of the appeal.”
Mahavir Educational Trust Vs Addl.CIT(CPC) 2. Rival submissions of both the parties have been heard and record perused. The learned Authorised Representative (ld. AR) of the assessee submits that the impugned order was passed by the ld. CIT(A) on 07/06/2023, however, the present appeal is filed only on 26/09/2023, thus there is a delay of 51 days in filing appeal before the Tribunal. The assessee has filed application for condonation of delay which is supported by the affidavit of one of the Trustee of the assessee Trust. The ld. AR of the assessee submits that the assessee is an educational trust. Though, the impugned order was passed on 07/06/2023, the order was not uploaded on ITBA Portal. The assessee lodged a complaint on 20/06/2023 vide grievance acknowledgment No.12402535 dated 27/06/2023. On raising such grievance, the impugned order was uploaded on portal. The assessee thereafter downloaded the order and filed present appeal before the Tribunal. In making grievance and downloading the order, the actual period of limitation for filing appeal has expired. Though, there is no delay in filing appeal from the date of communication of the order, yet the application is filed as the delay in filing appeal from the date of passing the order is neither intentional nor deliberate but due to the reasons that actually the order was not uploaded on ITBA Portal. The ld. AR of the assessee submits that the assessee has good case on merit and is likely to succeed if the case is heard on merit. Mere technical reason of delay which was not otherwise Mahavir Educational Trust Vs Addl.CIT(CPC) intentional should not come in getting the justice. The ld. AR of the assessee prayed for condoning the delay.
On merit, the ld. AR of the assessee submits that the assessee is a charitable institution, engaged in imparting education. The assessee is having registration under Section 12AA/12AB of the Act. While filing return of income, the assessee could not upload Form 10B for claiming benefit of accumulation of income. The assessee filed application for condonation of delay before ld. CIT(Exemptions), Ahmedabad on 09/02/2022. The application for condonation of delay was allowed by the ld. CIT(Exemptions) vide his order dated 24/02/2022. The CPC while processing the return of income, not allowed the accumulation of income thereby determined the total income of assessee at Rs. 35,33,835/-. Though, the application for condonation of delay in filing Form 10B was allowed by the jurisdictional CIT(Exemptions), however, the same could not be uploaded before the ld. CIT(A) while filing submission. It was due to inadvertence and bonafide impression that alongwith submission, the assessee/ld. AR of the assessee has uploaded the same. The ld. AR of the assessee submits that copy of order under Section 119(2)(b) dated 24/02/2022 for condoning the delay in filing Form 10B alongwith copy of Form 10B dated 28/05/2021 is placed on record. The ld. AR of the assessee submits that the present appeal is continuation of assessment proceeds, once the delay in filing Form 10B has been condoned by the Mahavir Educational Trust Vs Addl.CIT(CPC) jurisdictional CIT, it may be considered by this Bench. The assessee may be allowed accumulation of income under Section 11/12 of the Act.
On the other hand, the learned Senior Departmental Representative (ld. Sr. DR) for the revenue on the issue of condonation of delay submits that the Bench may take decision as per law. Though, the assessee should explain each and every day delay in filing appeal. On merit, the ld. Sr. DR for the revenue submits that the entire facts and circumstances of the present case show the lethargic conduct of assessee-trust, they are not following the various mandate prescribed under Income Tax Act or Rules. Despite allowing delay in filing Form 10B, the assessee again not furnished copy of the satisfaction or consideration by the ld. CIT(A).
I have considered the submission of both the parties and perused the record carefully. First adverting to the issue of delay in filing appeal, I find that in the affidavit for condonation of delay, the trustee of assessee specifically contended that the impugned order was no uploaded on ITBA portal and that it was uploaded only when raising grievance. I find merit in the submission of ld. AR of the assessee that initially the delay was only because of reason that the impugned order was not available on the portal. Such fact is not otherwise countered by showing adverse evidence by the Revenue. Considering the facts and circumstances of the case, I find that the assessee has shown reasonable cause for condoning the Mahavir Educational Trust Vs Addl.CIT(CPC) delay of 51 days in filing appeal. Thus, the delay in filing appeal is condoned. Now adverting to the merit of the case.
I find that only dispute is about filing Form 10B belatedly despite the fact that the delay in filing Form 10B was condoned by ld. CIT(Exemptions) on 24/02/2022, copy of which is available at page No. 6 of paper book. I find copy of Form 10B report dated 28/05/2021 is also available on record. Considering the legal position that appeal is continuation of assessment proceedings, therefore, I allow filing of Form 10B on record. Considering the fact that Form 10B was obtained prior to filing return of income, therefore, jurisdictional Assessing Officer is directed to allow necessary relief of accumulation of profit on verification of Form 10B as per law.
In the result, appeal of assessee is allowed. Order announced in open court on 21st December, 2023.