{"id":22531,"date":"2021-03-27T12:33:42","date_gmt":"2021-03-27T07:03:42","guid":{"rendered":"https:\/\/itatonline.org\/archives\/?p=22531"},"modified":"2021-03-27T12:33:42","modified_gmt":"2021-03-27T07:03:42","slug":"little-angels-education-society-vs-uoi-bombay-high-court-s-11-form-no-10b-under-circular-no-2-2020-dated-03-01-2020-the-cbdt-has-delegated-the-power-to-the-cit-to-admit-belated-applications-in-f","status":"publish","type":"post","link":"https:\/\/itatonline.org\/archives\/little-angels-education-society-vs-uoi-bombay-high-court-s-11-form-no-10b-under-circular-no-2-2020-dated-03-01-2020-the-cbdt-has-delegated-the-power-to-the-cit-to-admit-belated-applications-in-f\/","title":{"rendered":"Little Angels Education Society vs. UOI (Bombay High Court)"},"content":{"rendered":"
\n

Little Angels Education Society &Anr v. UOI &Ors WP No. 1061 of 2020 March 25, 2021 ( Bom) ( HC) , dated  25 th March 2021 <\/strong> <\/strong><\/p>\n

Charitable Trust – ( S.2(15) , 11)- School – Exemption – For delay in filing form Nom 10B denial of exemption is not justified –  <\/strong>Petitioner is directed to file an application before the <\/strong>CBD<\/strong>T within a period of three weeks from today, and CBDT shall pass an appropriate order in terms of direction No.1 above within a period of four weeks from the date of receipt of such application with due intimation to the petitioner <\/strong> <\/strong><\/p>\n

Facts:<\/strong>
\n The petitioners are charitable trusts providing education to students belonging to middle class families through various schools situated in Mumbai. Both the petitioners are assessed to income tax under the Income Tax Act, 1961(Act<\/strong>).<\/p>\n

Challenge made in both the writ petitions is to the orders dated 19.02.2020 passed by the Commissioner of Income Tax (Exemptions), Mumbai declining to condone the delay in filing Form No.10B of the Act for the assessment year 2018-2019.<\/p>\n

It is stated that for the assessment year 2018-19, petitioner filed return of income on 25.07.2018 declaring nil income. Form No.10B was obtained on 15.08.2018 from the auditor. It is stated instead of uploading Form No.10B in the income tax portal, petitioner uploaded Form No.10BB because of mistake of the chartered accountant and accountant.<\/p>\n

the CPC under section 143(1) of the Act raising a demand of Rs.1,46,01,489.00 as payable by the petitioner for the assessment year 2018-19 by denying exemptions under sections 11 and 12 of the Act.<\/p>\n

Petitioner uploaded Form No.10B on the income tax portal on 06.11.2019 and also filed an application for condonation of delay. As a matter of fact, petitioner filed Form No.10B for assessment years 2017- 18 and 2018-19.<\/p>\n

Respondent No.2 i.e., Central Board of Direct Taxes issued Circular No.2 of 2020 dated 03.01.2020 empowering the Commissioner of Income Tax (Exemptions) to condone the delay in filing Form No.10B for a period upto 365 days from the assessment year 2018-19 onwards.<\/p>\n

However, vide the impugned order dated 19.02.2020, Commissioner of Income Tax (Exemptions), Mumbai rejected the application of the petitioner for condonation of delay for the assessment year 2018-19. The said order was passed following Circular No.2 \/ 2020 of the Central Board of Direct Taxes.<\/p>\n

Aggrieved, the related writ petition has been filed for quashing of order dated 19.02.2020 and for a direction to the Commissioner of Income Tax (Exemptions) to condone the delay in filing Form No.10B for the assessment year 2018-19.<\/p>\n

Held<\/strong>:
\n That being the position and having regard to the mandate of section 119(2)(b), we feel that even at this stage, petitioner may approach CBDT under the aforesaid provision seeking a special order to the Commissioner of Income Tax (Exemptions), Mumbai to condone the delay in filing Form No.10B for the assessment year 2018-19 which isbeyond 365 days and thereafter to deal with the said claim on merit and in accordance with law.<\/p>\n

Petitioner shall file an application before the CBDT under section 119(2)(b) of the Act to authorize the Commissioner of Income Tax (Exemptions), Mumbai to condone the delay in filing Form No.10B for the assessment year 2018-19 and to deal with the same on merit in accordance with law; <\/p>\n

If such application is filed by the petitioner within a period of three weeks from today, CBDT shall pass an appropriate order in terms of direction No.1 above within a period of four weeks from the date of receipt of such application with due intimation to the petitioner<\/p>\n

(Editorial<\/strong>: Where the CIT(E) passed order section 119 (2)(b) of the Act rejecting the application  the assessee  can approach the CBDT with application for condonation of delay <\/p>\n<\/blockquote>\n

WP1061&1288_20.doc
\nIN THE HIGH COURT OF JUDICATURE AT BOMBAY
\nORDINARY ORIGINAL CIVIL JURISDICTION
\nWRIT PETITION NO.1061 OF 2020
\nLittle Angels Education Society \u2026 Petitioner
\nVs.
\nUnion of India and others \u2026 Respondents
\nWITH
\nWRIT PETITION NO.1288 OF 2020
\nRev. C. F. Andrews Education Society (Regd.) \u2026 Petitioner
\nVs.
\nUnion of India and others \u2026 Respondents
\nDr. K. Shivaram, Senior Advocate a\/w. Shashi Bekal for Petitioner.
\nMr. Sham Walve for Respondents.
\nCORAM : UJJAL BHUYAN &
\nMILIND N. JADHAV, JJ.
\nReserved on : FEBRUARY 15, 2021
\nPronounced on: MARCH 25, 2021
\nJudgment and Order : (Per Ujjal Bhuyan, J.)
\nThis order will dispose off both writ petition Nos.1061 and 1288
\nof 2020.
\n2. We have heard Dr. K. Shivaram, learned senior counsel for the
\ntwo petitioners and Mr. Sham Walve, learned standing counsel revenue
\nfor the respondents.
\n3. In Writ Petition No.1061 of 2020, Little Angels Education
\nSociety, Santacruz (West), Mumbai is the petitioner whereas in Writ
\nPetition No.1288 of 2020, Rev. C. F. Andrews Education Society,
\n1\/12
\nWP1061&1288_20.doc
\nSantacruz (East), Mumbai is the petitioner. Both the petitioners are
\ncharitable trusts providing education to students belonging to middle
\nclass families through various schools situated in Mumbai. Both the
\npetitioners are assessed to income tax under the Income Tax Act, 1961
\n(briefly ‘the Act’ hereinafter).
\n4. Challenge made in both the writ petitions is to the orders dated
\n19.02.2020 passed by the Commissioner of Income Tax (Exemptions),
\nMumbai declining to condone the delay in filing Form No.10B of the
\nAct for the assessment year 2018-2019.
\n5. Since facts are identical in both the petitions, for the sake of
\nconvenience we may refer to the facts pleaded in Writ Petition No.1061
\nof 2020.
\n6. It is stated that for the assessment year 2018-19, petitioner filed
\nreturn of income on 25.07.2018 declaring nil income. Form No.10B was
\nobtained on 15.08.2018 from the auditor. It is stated instead of uploading
\nForm No.10B in the income tax portal, petitioner uploaded Form
\nNo.10BB because of mistake of the chartered accountant and
\naccountant.
\n7. Centralized Processing Centre (CPC) of the Income Tax
\nDepartment informed the petitioner vide letter dated 26.07.2019 about
\nproposed adjustment in the income tax return for the assessment year
\n2018-19. Subsequently, petitioner received an intimation \/ order dated
\n17.10.2019 from the CPC under section 143(1) of the Act raising a
\ndemand of Rs.1,46,01,489.00 as payable by the petitioner for the
\nassessment year 2018-19 by denying exemptions under sections 11 and
\n12 of the Act. This has been challenged by the petitioner in appeal before
\n2\/12
\nWP1061&1288_20.doc
\nthe Commissioner of Income Tax (Appeals).
\n8. Petitioner uploaded Form No.10B on the income tax portal on
\n06.11.2019 and also filed an application for condonation of delay. As a
\nmatter of fact, petitioner filed Form No.10B for assessment years 2017-
\n18 and 2018-19.
\n9. Respondent No.2 i.e., Central Board of Direct Taxes issued
\nCircular No.2 of 2020 dated 03.01.2020 empowering the Commissioner
\nof Income Tax (Exemptions) to condone the delay in filing Form
\nNo.10B for a period upto 365 days from the assessment year 2018-19
\nonwards.
\n10. Commissioner of Income Tax (Exemptions), Mumbai requested
\nthe petitioner vide letter dated 04.02.2020 to furnish documents in
\nconnection with the application for condonation of delay for the
\nassessment year 2018-19 which was complied with by the petitioner.
\n11. However, vide the impugned order dated 19.02.2020,
\nCommissioner of Income Tax (Exemptions), Mumbai rejected the
\napplication of the petitioner for condonation of delay for the assessment
\nyear 2018-19. The said order was passed following Circular No.2 \/ 2020
\nof the Central Board of Direct Taxes (for short ‘CBDT’).
\n12. Petitioner has stated that it had filed an application for
\ncondonation of delay in filing Form No.10B for the assessment year
\n2017-18 which was allowed by the Commissioner of Income Tax
\n(Exemptions) by condoning the delay.
\n3\/12
\nWP1061&1288_20.doc
\n13. Aggrieved, the related writ petition has been filed for quashing of
\norder dated 19.02.2020 and for a direction to the Commissioner of
\nIncome Tax (Exemptions) to condone the delay in filing Form No.10B
\nfor the assessment year 2018-19.
\n14. Respondents have filed reply affidavit. It is stated that petitioner
\nhad filed return of income under section 139(1) of the Act on 15.08.2018
\nand revised return of income on 30.03.2019. Form No.10B was filed on
\n06.11.2019 which was after lapse of more than 365 days from the due
\ndate of filing of return of income. Reference has been made to the
\nCircular No.2 of 2020 dated 03.01.2020 to contend that Commissioners
\nof Income Tax are authorized to condone the delay in filing of Form
\nNo.10B upto 365 days for the assessment year 2018-19 and subsequent
\nyears. In the case of the petitioner, the delay was more than 365 days.
\nTherefore, no fault can be found in the action of the Commissioner in
\nrejecting the application of the petitioner for condonation of delay in
\nfiling Form No.10B. Circular of the CBDT is binding on all lower
\nauthorities. There is thus no infirmity in the impugned order. Writ
\npetition should be dismissed.
\n15. While Dr. Shivaram, learned senior counsel for the petitioner
\nsubmits that approach of the Commissioner of Income Tax (Exemptions)
\nis too technical, Mr. Walve, learned standing counsel revenue however
\njustifies the approach adopted by the Commissioner. Referring to section
\n119(2)(b), Dr. Shivaram submits that this Court in Sitaldas K. Motwani
\nVs. Director General of Income Tax, 323 ITR 223 had observed that the
\nphrase ‘genuine hardship’ appearing in section 119(2)(b) should be
\nconstrued liberally. When substantial justice and technical considerations
\nare pitted against each other, cause of substantial justice deserves to be
\npreferred because the other side cannot claim to have a vested right in
\n4\/12
\nWP1061&1288_20.doc
\ninjustice being done on account of a non-deliberate delay. He submits
\nthat in a number of judgments this Court had remanded the proceedings
\nback to the Commissioner.
\n16. Submissions made by learned counsel for the parties have been
\nconsidered.
\n17. Section 11 which deals with income from property held for
\ncharitable or religious purposes provides that the categories of income
\nmentioned thereunder shall not be included in the total income of the
\nprevious year of the person in receipt of the income. On the other
\nhand, section 12 deals with income of trusts or institutions from
\ncontributions. Section 12A lays down the conditions for applicability
\nof sections 11 and 12. As per Rule 17B the report of audit of accounts
\nof a trust or institution which is required to be furnished electronically
\nunder clause (b) of section 12A shall be in Form No.10B. In other
\nwords, where the total income of the trust or institute as computed
\nunder the Act without giving effect to the provisions of section 11 and
\nsection 12 exceeds the maximum amount which is not chargeable to
\nincome tax in any previous year, the accounts of the trust or institution
\nfor that year should be audited by an accountant as defined in the
\nexplanation below sub-section (2) of section 288 which should then
\nbe furnished along with the return of income for the relevant
\nassessment year.
\n18. Before we advert to the impugned order, it would be apposite to
\ndeal with section 119 of the Act which confers power upon the CBDT to
\nissue instructions and directions to other income tax authorities as it may
\ndeem fit for proper administration of the Act which are required to be
\nobserved and followed by the income tax authorities. Section 119(2)(b)
\n5\/12
\nWP1061&1288_20.doc
\nis relevant and the same is extracted hereunder:-
\n\u201cSection 119(2)
\n(a) \u2026
\n(b) the Board may, if it considers it desirable or expedient so
\nto do for avoiding genuine hardship in any case or class of
\ncases, by general or special order, authorise any income-tax
\nauthority, not being a Commissioner (Appeals) to admit an
\napplication or claim for any exemption, deduction, refund or
\nany other relief under this Act after the expiry of the period
\nspecified by or under this Act for making such application or
\nclaim and deal with the same on merits in accordance with
\nlaw.\u201d
\n19. From the above, we find that CBDT if it considers it desirable or
\nexpedient so to do for avoiding genuine hardship in any case or class of
\ncases by general or special order, authorize any income tax authority, not
\nbeing a Commissioner (Appeals), to admit an application or claim for
\nany exemption, deduction, refund or any other relief under the Act after
\nthe expiry of the period specified under the Act for making such
\napplication or claim and deal with the same on merit in accordance with
\nlaw. Thus, in an appropriate case CBDT can pass a general order or a
\nspecial order; by such an order it can authorize any income tax authority
\nnot being a Commissioner (Appeals) which would include
\nCommissioner of Income Tax (Exemptions); to admit an application or
\nclaim for any exemption etc. after expiry of the period specified under
\nthe Act; and to deal with the same on merit in accordance with law.
\n20. Having noticed the above, we may now examine Circular No.2 \/
\n2020 dated 03.01.2020 issued by the CBDT. The subject of the circular
\nis condonation of delay under section 119(2)(b) of the Act in filing of
\n6\/12
\nWP1061&1288_20.doc
\nForm No.10B for the assessment year 2018-19 and subsequent years.
\nReferring to the earlier circulars issued by the CBDT, it was noticed that
\nthe delay in filing Form No.10B for the assessment year 2016-17 and
\nassessment year 2017-18 in all such cases where the audit report for the
\nprevious year had been obtained before filing of return of income and
\nhad been furnished subsequent to the filing of the return of income but
\nbefore the dates specified under section 139 of the Act should be
\ncondoned; in all other cases of belated applications in filing Form
\nNo.10B for assessment years prior to assessment year 2018-19,
\nCommissioners of Income Tax have been authorized to admit and
\ndispose of such applications by 31.03.2020. While entertaining such
\nbelated applications, Commissioners should satisfy themselves that the
\nassessees were prevented by reasonable cause from filing such
\napplication within the stipulated time. By the Circular No.2 \/ 2020, the
\nfollowing portions have been added:-
\n\u201c5. In addition to the above, it has also been decided by the
\nCBDT that where there is delay of upto 365 days in filing Form
\nNo.10B for Assessment Year 2018-19 or for any subsequent
\nAssessment years, the Commissioner of Income-tax are hereby
\nauthorized to admit such belated applications of condonation of
\ndelay u\/s. 119(2) of the IT Act and decide on merits.
\n6. The Commissioners of Income-tax shall, while
\nentertaining such belated applications in filing Form No.10B,
\nsatisfy themselves that the assessee was prevented by
\nreasonable cause from filing such application within the
\nstipulated time.\u201d
\n21. As per the above it has been decided by the CBDT that when
\nthere is delay of upto 365 days in filing Form No.10B for assessment
\n7\/12
\nWP1061&1288_20.doc
\nyear 2018-19 or for any subsequent assessment years, Commissioners of
\nIncome Tax have been authorized to admit such belated applications for
\ncondonation of delay under section 119(2) of the Act and to decide the
\nsame on merit. It has further been clarified that while entertaining such
\nbelated applications, Commissioners of Income Tax should satisfy
\nthemselves that the assessees were prevented by reasonable cause from
\nfiling such applications within the stipulated time. Thus, by the above
\nCircular No.2 of 2020, CBDT has issued general order under section
\n119(2)(b) empowering the Commissioners of Income Tax to condone
\ndelay in filing Form No.10B for the assessment year 2018-19 or for any
\nsubsequent assessment years.
\n22. Let us now deal with the impugned order dated 19.02.2020 passed
\nby the Commissioner of Income Tax (Exemptions), Mumbai. The same
\nreads as under:-
\n\u201cThe assessee has filed application for condonation of delay in
\nfiling Form No.10B for A.Y. 2018-19 on 07.11.2019. It was
\nstated in the application that due to oversight on part of the
\nChartered Accountant Form 10B was delayed in e-filing. The
\nassessee has requested for condonation of delay in filing Form
\nNo.10B.
\n2. On perusal of application for condonation of delay of
\nassessee as well as relevant provisions of the Income Tax Act,
\n1961 (the Act), Circulars & Notifications, it is observed that the
\npower u\/s. 119(2)(b) of the Act lies with the CBDT. However,
\nfor the condonation of delay u\/s.119(2)(b) of the Income-tax
\nAct, 1961 in filing of Form No.10B for A.Y.2018-19 and
\nsubsequent years, has been delegated to the Commissioner of
\nIncome-tax (Exemptions), vide Circular No.02\/2020 in
\nF.No.197\/55\/2018-ITA-I dated 03rd January, 2020. The relevant
\nexcerpts from the circulars is reproduced as under:
\n8\/12
\nWP1061&1288_20.doc
\n\u201c5. In addition to the above, it has also been
\ndecided by the CBDT that where there is delay of
\nupto 365 days in filing Form No.10B for
\nAssessment Year 2018-19 or for any subsequent
\nAssessment Years, the Commissioners of Incometax
\nare hereby authorized to admit such belated
\napplications of condonation of delay u\/s.119(2) of
\nthe Act and decide on merits.\u201d
\n3. As per para 5 of the above Circular dated 03.01.2020, it
\nis very clear that the delay of upto 365 days in filing of Form
\nNo.10B for Assessment Year 2018-19 and subsequent
\nAssessment Years, the Commissioners of Income-tax are
\nauthorized to admit such belated applications of condonation of
\ndelay u\/s 119(2) of the Act and decide on merits.
\n3.1. In this case, the assessee has filed its return of income u\/
\ns. 139(1) on 15.08.2018 and revised return of income
\nu\/s.139(5) on 30.03.2019. Further, the original and revised
\nForm No.10B was filed on 06.11.2019. The details and the
\ndocumentary evidences filed by assessee have been examined
\nduring the course of proceedings. It is seen that the Form
\nNo.10B is filed electronically after lapse of more more than
\n365 days of the due date of the filing of return of income i.e.
\n31.10.2018. The case of the assessee is not covered under para
\n5 of the CBDT Circular dated 03.01.2020 wherein the CBDT
\nhas delegated the power to the Commissioner of Income-tax to
\nadmit belated applications of condonation of delay u\/s. 119(2)
\nof the Act only upto 365 days in filing of Form No.10B and
\ndecide on merits.
\n4. In view of the above, the application for condonation of
\ndelay for A.Y.2018-19 is hereby rejected.\u201d
\n9\/12
\nWP1061&1288_20.doc
\n23. Commissioner noted that petitioner had filed return of income on
\n15.08.2018 and revised return of income on 30.03.2019. Form No.10B
\nwas filed on 06.11.2019. Form No.10B was required to be filed within
\nthe due date of filing of return, in this case 31.10.2018. There was thus
\ndelay of more than 365 days in filing Form No.10B. Referring to the
\nCircular dated 03.01.2020, Commissioner noted that CBDT has
\ndelegated the power to the Commissioner to admit belated applications
\nin filing Form No.10B for the assessment year 2018-19 and onwards for
\na period of only upto 365 days. Since in this case the delay is more than
\n365 days, Commissioner expressed inability to condone the delay and
\nhence rejected the application for condonation of delay.
\n24. We do not find any error or infirmity in the view taken by the
\nCBDT vide Circular No.2 \/ 2020 or by the Commissioner while passing
\nthe impugned order dated 19.02.2020. Fixing a period of one year\u2019s
\ndelay i.e., 365 days of delay for condonation of delay in filing Form
\nNo.10B for the assessment year 2018-19 and onwards cannot be said to
\nbe arbitrary or irrational. Therefore the general order passed by the
\nCBDT in this regard under section 119(2)(b) cannot be faulted.
\nHowever, there is also nothing in section 119(2)(b) preventing or
\nprecluding CBDT from passing a special order in any given case from
\ncondoning the delay in filing Form No.10B beyond 365 days despite
\npassing a general order.
\n25. That being the position and having regard to the mandate of
\nsection 119(2)(b), we feel that even at this stage, petitioner may
\napproach CBDT under the aforesaid provision seeking a special order to
\nthe Commissioner of Income Tax (Exemptions), Mumbai to condone the
\ndelay in filing Form No.10B for the assessment year 2018-19 which is
\n10\/12
\nWP1061&1288_20.doc
\nbeyond 365 days and thereafter to deal with the said claim on merit and
\nin accordance with law.
\n26. Thus, having regard to the above and upon due consideration we
\ndeem it appropriate to issue the following directions:-
\n1. Petitioner shall file an application before the CBDT
\nunder section 119(2)(b) of the Act to authorize the
\nCommissioner of Income Tax (Exemptions), Mumbai
\nto condone the delay in filing Form No.10B for the
\nassessment year 2018-19 and to deal with the same on
\nmerit in accordance with law;
\n2. If such application is filed by the petitioner within a
\nperiod of three weeks from today, CBDT shall pass an
\nappropriate order in terms of direction No.1 above
\nwithin a period of four weeks from the date of receipt
\nof such application with due intimation to the
\npetitioner.
\n27. Ordered accordingly.
\n28. The above directions in paragraph No.26 shall also cover Writ
\nPetition No.1288 of 2020.
\n29. Both the writ petitions are accordingly disposed of. However,
\nthere shall be no order as to cost.
\n(MILIND N. JADHAV, J.) (UJJAL BHUYAN, J.)
\n11\/12
\nMinal Parab
\nWP1061&1288_20.doc
\n12\/12<\/p>\n","protected":false},"excerpt":{"rendered":"

We do not find any error or infirmity in the view taken by the CBDT vide Circular No.2 \/ 2020 or by the Commissioner while passing the impugned order dated 19.02.2020. Fixing a period of one year\u2019s delay i.e., 365 days of delay for condonation of delay in filing Form No.10B for the assessment year 2018-19 and onwards cannot be said to be arbitrary or irrational. Therefore the general order passed by the CBDT in this regard under section 119(2)(b) cannot be faulted. However, there is also nothing in section 119(2)(b) preventing or precluding CBDT from passing a special order in any given case from condoning the delay in filing Form No.10B beyond 365 days despite passing a general order<\/p>\n

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