VAKRANGEE FOUNDATION, RAIPUR,RAIPUR vs. DEPUTY COMMISSIONER OF INCOME TAX (EXEMPTION), RAIPUR, RAIPUR

आदेश / O R D E R

Per Arun Khodpia, AM :

The grounds of appeal submitted by the assesee are as under: -

1. That under the facts and the law, the learned CIT (Appeals), NFAC, Delhi erred in confirming the penalty levied by the learned AO u/s 271B at Rs.1,50,000/- for not getting the audit u/s 44AB, though, the appellant is a Charitable Trust and income is not taxable and provisions of section 44AB for getting Audit u/s 44AB are not applicable to charitable institutions. Prayed to delete the penalty.

2. That under the facts and the law, the learned CIT (Appeals), NFAC, Delhi erred in confirming the levy of penalty u/s 271 B at Rs. 1,50,000/- by the learned AO for the reason that addition of Rs.8,00,000/- (added Rs. 10 lakh, subsequently rectified to Rs. 8 lakh) is not from education but from business. The observation is not as per the facts and law. Prayed that income is not from business. The penalty levied u/s 271B kindly be cancelled.

2. At the outset the registry pointed out that the appeal filed is delayed by 29 days. Ld AR on behalf of the assessee submitted that the Smt. Bhavna Bohra, President was fall on the ground, keeping unwell, had back pain and was unable to work. Supporting affidavit from the President of the assessee institute along with doctor’s prescription advising 3 months rest are submitted. It was also the submission of the Ld AR that the Counsel of the assessee foundation CA Dipesh Sancheti’s mother was also suffering with cancer and was under hospitalization during the period from 28.03.2023 to 25.04.2023 and thus, he was unbale to pay attention in filing of the appeal within the stipulated time. Ld AR requested that under such compelling situation the assessee was prevented by sufficient cause in not filing the appeal in time, therefore, the condonation for delay may kindly be granted. We have considered the request of the assessee and found it appropriate to condone the delay on which the revenue also have not shown any objection to. Resultantly the delay in filing the appeal is directed to be condoned and the matter is being permitted and taken up for hearing.

7. We have considered the rival submissions, perused the material available on record and orders of the authorities below. Assessee’s contention that the assessee is an educational institution since beginning. This contention of the assessee is fortified by the documents like registration of the assessee under registrar of societies, Chhatisgarh and registration with CBSE, however certain conduct of the assessee in filing of return in form ITR5, showing itself as an AOP/BOI, offering the surplus of Rs. 80,751/- as taxable income. It is also a fact that the assessee was in position of registration u/s 12AA dated 18/12/2017 when the return for AY 2017-18 was filed on 15-03-2018. Further an addition proposed by the Ld AO u/s 37(1) was accepted by the assessee, which was further agreed to when a rectification application u/s 154 for mistake in figure of addition was sought by the assessee and the same was rectified by the AO u/s 154. Ld Ao had categorically observed that the assessee trust has a certificate u/s 12AA but the same is effective from AY 2018-19, also the assessee had not claimed any exemption u/s 11 and 12 of the Act. Therefore, the case of the assessee for the year under consideration is treated as business case. Such conduct of the assessee shows that the contention of Ld AO in treating the income of the assessee as income from business which was not appealed against by the assessee rather have requested for correction of the amount of addition made u/s 37(1), was agreed by the assessee. During the hearing before us when it was queried whether the assessee which has receipt of more than Rs. 12.00 crores whether the assessee has got its accounts audited under the provisions of income tax act applicable 10B was furnished, Ld AR answered that the assessee was not having 12AA for the relevant year thus such audit was not conducted. Under such circumstances, we agree with the observations of Ld CIT(A) that the addition of Rs. 10.00 Lac made by the Ld AO u/s 37(1) was accepted by the appellant, thus, also accepted the fact that the assessee has income from business and profession. Moreover, to fit into the definition of ‘Charitable purpose’ as per section 2(15) of the Act, the appellant was required to fulfill certain prescribed conditions. The appellant was failed in establishing during the penalty proceedings before AO, as well as before the Ld CIT(A). We therefore are of the considered opinion that Ld CIT(A) had correctly appreciated the facts of the case in confirming the penalty imposed by the Ld AO u/s 44AB. Since, we have not found any infirmity in the order of Ld CIT(A), we do not see any reason to interfere with the same, accordingly we uphold the order of Ld CIT(A), in terms of our observations herein above. Thus, ground 1 and 2 of the assessee on the sole issue pertaining to leavy of penalty u/s 271B are dismissed.

Order pronounced in the court on 12/09/2023.