Itat/270/2023 Ia No: Ga/1/2023, Ga/2/2023 Commissioner Of Income Tax Exemptions Kolkata v. M/S Indian Sugar Mills Association

OD- 1 IN THE HIGH COURT AT CALCUTTASPECIAL JURISDICTION (INCOME TAX)ORIGINAL SIDE ITAT/270/2023 IA NO: GA/1/2023, GA/2/2023COMMISSIONER OF INCOME TAX EXEMPTIONS KOLKATAVSM/S INDIAN SUGAR MILLS ASSOCIATION BEFORE : THE HON’BLE THE CHIEF JUSTICE T.S. SIVAGNANAM ANDTHE HON’BLE JUSTICE SUPRATIM BHATTACHARYADATE : 10 January, 2024. Appearance :Ms. Smita Das De, Adv...for appellant The Court: We have heard Smita Das De, learned standing Counsel forappellant revenue. The respondent has been served and an affidavit of service hasbeen filed but none appears for the respondent. There is a delay of 44 days in filing the appeal and we have perused thecondone delay petition and we find sufficient causes were shown for not preferring theappeal within the period of limitation. Hence, the application is allowed and the delayin filing the appeal is condoned. This appeal by the revenue filed under Section 260A of the Income Tax Act,1961(the Act) is directed against the order dated 25.5.2023 passed by the Income TaxAppellate Tribunal B Bench, Kolkata (the Tribunal) in ITA/480/Kol/2022 for theassessment year 2018-19. The revenue has raised the following substantial questions of law forconsideration : a)Whether in the facts and in the circumstances of the Tribunal was justifiedin law to allow the assessee’s appeal by deleting the adjustment made underSection 143(1) on account of denying exemption under Section 11 of thesaid Act amounting to Rs.3,97,02,996/- despite the fact that the statutoryrequirement of filing the form No. 10B on or before the filing of return ofincome was not fulfilled by the assessee trust?in law to allow the assessee’s appeal by deleting the adjustment made underSection 143(1) on account of denying exemption under Section 11 of thesaid Act amounting to Rs.3,97,02,996/- despite the fact that the statutoryrequirement of filing the form No. 10B on or before the filing of return ofincome was not fulfilled by the assessee trust? b)Whether in the facts and in the circumstances of the Tribunal was justifiedin law in not taking cognizance of the fact that a speaking order was passedunder Section 119(2)(b) of the said Act dated 17.08.2020 by the CIT(Exemptions) Kolkata wherein the condonation of delay in filing of Form 10Bwas rejected?in law in not taking cognizance of the fact that a speaking order was passedunder Section 119(2)(b) of the said Act dated 17.08.2020 by the CIT(Exemptions) Kolkata wherein the condonation of delay in filing of Form 10Bwas rejected? c)Whether in the facts and in the circumstances of the Tribunal was justifiedin law in not appreciating the fact that CBDT had issued Circular No. 02 of2020 dated 03.01.2020 authorising the CIT to decide on the issue ofcondonation of delay in filing Form 10B for the cases in which delay occursin submission of Form 10B within the period upto 365 days being contraryto the Circular mentioned herein?in law in not appreciating the fact that CBDT had issued Circular No. 02 of2020 dated 03.01.2020 authorising the CIT to decide on the issue ofcondonation of delay in filing Form 10B for the cases in which delay occursin submission of Form 10B within the period upto 365 days being contraryto the Circular mentioned herein? We have heard Smita Das De, learned standing Counsel for appellant revenue. The short question falls for consideration in the instant case is whether thePrincipal Commissioner of Income Tax (Appeals), NFACwas justified in allowing theappeal filed by the assessee thereby condoning the delay in filing the Form 10B of theAct. The learned Tribunal after going through the facts of the case took note of thelatter circular issued by the Board in Circular No. 16 of 2022 dated 19-07-2022 issuedunder Section 119(2)(b) by which the powers delegated to the Principal Chief We have heard Smita Das De, learned standing Counsel for appellant revenue. The short question falls for consideration in the instant case is whether thePrincipal Commissioner of Income Tax (Appeals), NFACwas justified in allowing theappeal filed by the assessee thereby condoning the delay in filing the Form 10B of theAct. The learned Tribunal after going through the facts of the case took note of thelatter circular issued by the Board in Circular No. 16 of 2022 dated 19-07-2022 issuedunder Section 119(2)(b) by which the powers delegated to the Principal Chief Commissioner of Income Tax/Commissioner of Income Tax to condone the delay infiling Form 10B beyond 365 days up to 3 years from the assessment year 2018-19 orfor subsequent year. Applying the said circular the learned Tribunal affirmed the orderpassed by the CIT (Appeals) in grounds before us in this appeal. The revenue has not dealt with the said circular nor anything has been broughton record to show that Circular No. 16 of 2022 dated 19-07-2022 cannot be applied tothe case on hand. The Commissioner of Income Tax (Exemptions) while rejecting theapplication for condonation of delay by order dated 17-08-2020 has referred to theCircular No. 2 of 2020 dated 3.1.2020 which admittedly gives power to condone thedelay in filing Form 10B up to a period of 365 days. The CIT (Appeals), NFAC also tooknote of a decision of the High Court of Gujarat in Commissioner of Income Tax VsGujarat Oil And Allied Industries reported in 1993 ITR (201) 325 wherein it was heldthat the filing of the auditor’s report along with return of income has to be treated asprocedural provision and therefore, directory in nature. Thus we find that there is noerror committed by the learned Tribunal in dismissing the appeal filed by the revenue. Accordingly, the appeal is dismissed. Substantial questions of law are answeredagainst the revenue. . (T.S. SIVAGNANAM)CHIEF JUSTICE pkd/GH. (SUPRATIM BHATTACHARYA,J.)