M/s. Suprativa, Cuttack V. ITO Ward-2(2), Cuttack

ITA 308/CTK/2023

• Counselvise Citation: [2023] 100 COUNSELVISE.COM (IT) 4775 (ITAT-CUTTACK)
• Duration Of Justice: 2 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-12-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2017-2018
• Appeal Filed On: 05-10-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: PRADEEP KUMAR PATTNAIK
• Section: 10B; 143(1)

Judgement Text

आयकर अऩीऱीय अधधकरण, “एस.एम.सी” न्यायऩीठ,कटक IN THE INCOME TAX APPELLATE TRIBUNAL “SMC” BENCH CUTTACK श्री जाजज माथन, न्याययक सदस्य के समक्ष । BEFORE SHRI GEORGE MATHAN, JUDICIAL MEMBER आयकर अऩीऱ सं/ITA No.308/C TK/2023 (ननधाारण वषा / Asses s m ent Year :2017-2 018) M/s Suprativa, Fakirpada, Cuttack-754100 Vs ITO, Ward-2(2), Cuttack PAN No. :AASAS 9915 R (अऩीऱाथी /Appellant) .. (प्रत्यथी / Respondent) ननधााररती की ओर से /Assessee by : Shri Pradeep Kumar Pattnaik, Advocate राजस्व की ओर से /Revenue by : Shri S.C.Mohanty, Sr. DR स ु नवाई की तारीख / Date of Hearing : 07/12/2023 घोषणा की तारीख/Date of Pronouncement : 07/12/2023 आदेश / O R D E R This is an appeal filed by the assessee against the order of the ld CIT(A), National Faceless Appeal Centre (NFAC), Delhi, dated 10.08.2023, passed in DIN & Order No.ITBA/NFAC/S/250/2023- 24/1055034411(1) for the assessment year 2017-2018. 2. It was submitted by the ld AR that the assessee is a society registered u/s.12A of the Act. It was the further submission that Form 10B was filed belatedly. It was the submission that when the return of income was filed by the assessee, the same was processed by issuance of intimation u/s.143(1) of the Act, wherein the entire expenditure claimed by the assessee was disallowed by raising a demand of Rs.5,89,164/-. On appeal, the ld. CIT(A) upheld the adjustment done by the ld. AO on account of belatedly filing of Form 10B by the assessee. Consequently, the ld. CIT(A) dismissed the appeal of the assessee. It was the submission that the assessee has not received any show cause notice ITA No.308/CTK/2023 2 before issuance of intimation u/s.143(1) of the Act, which was not permissible under the provisions of Section 143(1) of the Act. It was the prayer that the intimation issued u/s.143(1) of the Act may kindly be annulled and the appeal of the assessee be allowed. Apart from the above, ld. AR has filed his written submissions which read as under :- 1. That, the learned CIT(A) has erred in denying the exemption u/s.11 by stating that audit report in Form No.10B has not been filed before the due date of filing return of income u/s.139. In this regards, it is humbly submitted that filing of audit report is a substantive requirement but the mode and stage of filing is a procedural one and the appellant had already filed the audit report in Fomr-10B on 17.07.2023. the Hon’ble ITAT “D” Bench, Ahmedabad in ITA No.245/Ahd/2021 dated 16.06.2023 had allowed the appeal. Copy of the said order is enclosed for your kind perusal. PRAYER Considering the submissions made herein before it is humbly prayed that a judicious order on merits may kindly be passed taking into consideration the above fact and circumstances of the case. And for this act of your kindness, the appellant as in duty bound shall every pray. 3. In reply, the ld. Sr. DR submitted that no specific reply to the query of ld. CIT(A) regarding filing of Form 10B within the stipulated time, has been submitted by the assessee. It was the submission that the adjustment on account of not considering the expenses towards charitable/religious purposes during the year has been done by the CPC correctly in absence of electronically filed Form No.10B. It was the prayer that the order of the ld. CIT(A) is liable to be upheld. 4. I have considered the rival submissions. A perusal of the intimation issued u/s.143(1) of the Act by the AO, clearly shows that the same has been issued in violation of the proviso to Section 143(1) of the Act, insofar ITA No.308/CTK/2023 3 as the show cause notice as required under the proviso to Section 143(1) of the Act, has not been issued to the assessee. This being so, admittedly the adjustments as has been done by the AO is not something that can be done in an intimation u/s.143(1) of the Act without issuing any show cause notice to the assessee. This fact has not been considered by the ld. CIT(A) while passing the impugned order. Consequently, the intimation issued u/s.143(1) of the Act stands quashed and the appeal of the assessee is allowed. 5. In the result, appeal filed by the assessee stands allowed. Order dictated and pronounced in the open court on 07/12/2023. Sd/- (जाजज माथन) (GEORGE MATHAN) न्यानयक सदस्य / JUDICIAL MEMBER कटक Cuttack; ददनाांक Dated 07/12/2023 Prakash Kumar Mishra, Sr.P.S. आदेश की प्रनतलऱपऩ अग्रेपषत/Copy of the Order forwarded to : आदेशान ु सार/ BY ORDER, (Assistant Registrar) आयकर अऩीऱीय अधधकरण, कटक/ITAT, Cuttack 1. अऩीऱाथी / The Appellant- M/s Suprativa, Fakirpada, Cuttack-754100 2. प्रत्यथी / The Respondent- ITO, Ward-2(2), Cuttack 3. आयकर आय ु क्त(अऩीऱ) / The CIT(A), 4. आयकर आय ु क्त / CIT 5. ववभागीय प्रयतयनधध, आयकर अऩीऱीय अधधकरण, कटक / DR, ITAT, Cuttack 6. गार्ज पाईऱ / Guard file. सत्यावऩत प्रयत //True Copy//