Shree Jalaram Trust Calcutta, Kolkata V. DCIT, CPC, , Bangalore

ITA 189/KOL/2021

• Counselvise Citation: [NaN] 107 COUNSELVISE.COM (IT) 2238 (ITAT-KOLKATA)
• Duration Of Justice: 7 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-02-2022
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: SMC
• Assessment Year: 2015-2016
• Appeal Filed On: 21-06-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Set aside
• Section: 154; 11; 10B; 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “SMC” (Virtual Court Hearing), BENCH KOLKATA Before Shri Sanjay Garg, Judicial Member I.T.A. Nos.189&190/Kol/2021 Assessment Years: 2015-16 & 2018-19 Shree Jalaram Trust Calcutta......................................................Appellant 140C, Chander Village Road, Shree Jalaram Path, Kolkata-700082. [PAN: AADTS0086P] vs. DCIT, CPC...........................................................................Respondent Appearances by: Shri Soumitra Choudhury, Advocate, appeared on behalf of the appellant. Shri Gautam Mondal, Addl. CIT, appeared on behalf of the Respondent. Date of concluding the hearing : February 02, 2022 Date of pronouncing the order : February 02, 2022 Hearing through Video Conferencing ORDER Both the present appeals have been preferred by the assessee against the separate orders both dated 20.04.2021 of the Commissioner of Income Tax (Appeals), National Faceless Appeal Centre [hereinafter referred to as ‘CIT(A)’] passed u/s 250 of the Income Tax Act (hereinafter referred to as the ‘Act’). Since the common issues are involved in both the appeals hence, the same are taken together for disposal by this common order. For the sake of convenience ITA No.189/Kol/2021 is taken as lead case. The assessee in this appeal has taken the following grounds of appeal: “1. For that on the facts and circumstances of the case, the Ld CIT(A) erred in confirming the denial of the exemption u/s 11 of the Income-tax Act,1961 in view of the audit report in Form No 10B having not been filed without appreciating the reasons for such non filing of report being beyond the control of the appellant and such action of the Ld CIT(A) is arbitrary, unjustified unwarranted and illegal. 2. For that the chartered accountant who had signed the Audit Report in Form No 10B did not file the same online for reasons not known to the appellant and the appellant was genuinely prevented from uploading the same in view of death of the chartered accountant as there is no mechanism on the income-tax portal to take care of such a situation and the Ld CIT(A) erred dismissing the appeal without considering the peculiar situation in which the appellant was put into. 3. For that the Ld. AO erred in making adjustment to the income by disallowing the exemption u/s 11 on the pretext on the Report in Form No 10B having not been filed and the action of the Ld AO is arbitrary, unjustified, unwarranted and illegal. I.T.A. Nos.189&190/Kol/2021 Assessment Years: 2015-16 & 2018-19 Shree Jalaram Trust Calcutta 2 4 For that the Ld CIT(A) erred in not allowing the appeal filed against the rejection of the petition u/s 154 as the adjustments which were made to the total income were apparently against the law and thus mistake apparent from 5 For that the Report in Form No 10B being available with the appellant, the appellant should be granted the benefit of Section 11. 6 For that the requirement of filing of audit report cannot be used to fasten a thumping tax liability on the appellant even though there were genuine reasons for such failure. 7 For that the Appellant craves indulgence to add, amend, alter, and modify the grounds on or before the hearing of the Appeal.” 2. At the outset, the ld. Counsel for the assessee has submitted that the impugned additions have been made by the Assessing Officer as the assessee inadvertently failed to upload Form 10BB along with return of income. The ld. Counsel has further submitted that due to inadvertent mistake on the part of Chartered Accountant of the assessee, the Form 10BB could not be uploaded. Further the lower authorities have not disputed the merits of the case of the assessee but the relief has been denied for want of Form 10BB, which was due to an inadvertent mistake which could have been allowed to be rectified by the lower authorities. The ld. DR has also fairly admitted that the relief has been denied for want of Form 10BB only. 3. I have considered the rival submissions. It has been held time and again by the various courts of the country that only legitimate, genuine and due taxes should be collected from the assessees. In fact, a duty has been casted upon to the Income Tax Authorities to help the assessees to file their correct return of income along with required documents. In this case, the assessee due to inadvertent mistake, failed to upload Form 10BB and it was requested to the Income Tax Officer to accept the same. However, the concerned Income Tax Authority refused to admit the same and denied the relief to the assessee, which the assessee otherwise was entitled to. In my view, the Income Tax Authorities are not of penal jurisdiction to punish the assessees for their bona fide mistakes. In my view, the concerned Assessing Officer should have allowed the assessee to furnish the Form 10BB and then have considered the claim of the assessee as per law. In view of this, the impugned order of the CIT(A) is set aside with a direction that the Assessing Officer will consider Form 10BB filed by the assessee and pass the assessment I.T.A. Nos.189&190/Kol/2021 Assessment Years: 2015-16 & 2018-19 Shree Jalaram Trust Calcutta 3 order afresh accordingly, irrespective of the fact that the assessee could not upload the same earlier. 4. The Ld. Counsel has submitted that the concerned Chartered Accountant of the assessee is no more and therefore, it is not possible to upload Form 10BB from the ID which was registered with the Income Tax Department for the purpose of uploading the documents of the assessee. The ld. Counsel has submitted that the assessee may be allowed to furnish Form 10BB in physical form for consideration by the I.T. Authorities. Considering the difficulty faced by the assessee in uploading the Form 10BB for the assessment year under consideration, it is directed that the assessee will furnish Form 10B in physical form to the concerned A.O and the A.O will consider the same and pass the assessment orders in accordance with law, irrespective of the fact that the assessee could not upload the same earlier. The appeals of the assessee are treated as allowed for statistical purposes. 5. In the result, both the appeals of the assessee are treated as allowed for statistical purposes. Kolkata, the 2 nd February, 2021. Sd/- [Sanjay Garg] Judicial Member Dated: 02.02.2022. RS Copy of the order forwarded to: 1. Shree Jalaram Trust Calcutta 2. DCIT, CPC 3. CIT(A)- 4. CIT- , 5. CIT(DR), //True copy// By order Sr.PS/D.D.O, Kolkata Benches