Dr Sukumar J Magdum Foundation, Kolhapur V. Income Tax Officer, Exemption, Ward-Kolhapur, Kolhapur

ITA 320/PUN/2023

AI Insights

The case involves the Dr. Sukumar J. Magdum Foundation, which appealed against the order of the CIT(A) in the National Faceless Appeal Centre, which denied them an exemption under section 11 of the Income Tax Act due to late filing of an audit report in Form No.10B. The Tribunal admitted an additional ground raised by the appellant that the total income should have been determined on commercial principles rather than charging the gross receipts to tax. The Tribunal found that the AO had not correctly computed the total income by not allowing deductions for expenses, leading to the decision to remit the matter back to the AO for correct assessment.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 137832 (ITAT-PUNE)
• Duration Of Justice: 4 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-08-2023
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 13-08-2023
• Assessment Year: 2018-2019
• Appeal Filed On: 19-03-2023
• Laws Referred To: Income-tax Act, 1961
• Result in Favour of: Matter Remanded
• Court: TRIBUNAL
• Keywords: Benefit of exemption; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH, ‘B’ PUNE BEFORE SHRI R.S. SYAL, VICE PRESIDENT AND SHRI S.S.VISWANETHRA RAVI, JUDICIAL MEMBER ITA No.320/PUN/2023 Assessment Year : 2018-19 Dr. Sukumar J. Magdum Foundation, 2008/A/6, Magdum Orthopaedic, Sangli-Kolhapur Road, A&P Nimshirgaon, Tal. Shirol, Dist. Kolhapur, Maharashtra-416101 PAN : AAATD9312L Vs. ITO, Exemption Ward, Kolhapur Appellant Respondent आदेश / ORDER PER R.S. SYAL, VP : This appeal by the assessee is directed against the order dt. 06-02-2023 passed by the CIT(A) in National Faceless Appeal Centre (NFAC) u/s.250 of the Income-tax Act, 1961 (hereinafter also called ‘the Act’) in relation to the assessment year 2018-19. 2. Briefly stated, the facts of the case are that the assessee e-filed its return declaring total income at Nil. The return was processed u/s.143(1) by observing that the assessee did not file audit report in Form No.10B, which was a condition precedent for claiming exemption u/s.11. Thereafter, a rectification order was passed on Assessee by Shri Sharad Atmaram Vaze Revenue by Shri M.G. Jasnani Date of hearing 14-08-2023 Date of pronouncement 14-08-2023 ITA No.320/PUN/2023 Dr. Sukumar J. Magdum Foundation 2 22-07-2021, noting that Form No.10B was neither uploaded nor any application was filed for condonation of delay, and, as such, the benefit of exemption was rightly denied in the Intimation. In this order, the Assessing Officer (AO) observed that the Intimation u/s. 143(1) determined the total income at Rs.4,31,18,956/- by not allowing deductions at Rs.4,95,86,799/-. The assessee appealed to the ld. CIT(A), claiming the benefit of exemption u/s.11, which was again jettisoned on the ground that the Audit report in Form No.10B was finally signed on 27-08-2021 and uploaded on 05-03-2022, which did not satisfy the conditions for exemptions u/s.12A, namely, that the Audit report should be signed before the specified date and the said Audit report in Form No.10B should be furnished before the stipulated date. This is how the assessee’s appeal came to be dismissed. Aggrieved thereby, the assessee has come up in appeal before the Tribunal. 3. We have heard the rival submissions and gone through the relevant material on record. The contentions about the late filing of Audit report in Form No.10B and the need for still granting exemption, were not seriously pressed. The ld. AR has raised an additional ground to the effect that total income of the assessee ought to have been determined on commercial principles and not by charging the gross receipts to tax. The additional ground, being, ITA No.320/PUN/2023 Dr. Sukumar J. Magdum Foundation 3 legal in nature and not requiring any fresh examination of the factual matrix, is hereby admitted. As such, the only issue which survives for our consideration is the examination of the manner of assessment by the AO considering that it was not having any registration so as to qualify for exemption u/s.11. 4. The AO has recorded in the order u/s.154 that the gross receipts of the assessee were Rs.4,31,18,956/- and no deduction was allowed for expenses to the tune of Rs.4,95,86,799/-. We have gone through the Income and Expenditure account of the assessee, whose copy has been placed at page 18 of the paper book. Total of gross receipts on the Income side comes to Rs.4,31,18,955/-, which has been correctly considered by the AO. However, the amount of total deductions, as taken note of by the AO at Rs.4.95 crore, is not borne out from the Expenditure side. It appears that the AO took the amount of gross receipts at Rs.4.13 crore and added 15% at around Rs.64.00 lakh, to compute the total expenditure at Rs.4.95 crore. In fact, the assessee’s Income and Expenditure Account shows that “Surplus of Income over Expenditure” at Rs.2,87,153/-. In addition, there is “Amount transferred to Reserve or Specific Funds” to the tune of Rs.9,54,000/-. The assessee has claimed deduction for various expenses. It goes without saying that income- tax is charged on the income and not the gross receipts. Income is ITA No.320/PUN/2023 Dr. Sukumar J. Magdum Foundation 4 determined by reducing the expenses incurred, described under various sections in Chapter IV-D of the Act. If the benefit of exemption u/s.11 is not available, the total income needs to be computed in accordance with the regular provisions of the Act. In the given circumstances, where the AO has charged tax on gross receipts, we cannot countenance the same. The resultant impugned order also deserves to be set aside. We order accordingly and remit the matter to the file of the AO for deducing the total income in accordance with the law after considering the deductibility of various expenses noted in the Income and Expenditure Account. Needless to say, the assessee will be allowed a reasonable opportunity of hearing. 5. In the result, the appeal is allowed for statistical purpose. Order pronounced in the Open Court on 14 th August, 2023. Sd/- Sd/- ( S.S. VISWANETHRA RAVI) (R.S.SYAL) JUDICIAL MEMBER VICE PRESIDENT पुणे Pune; िदनांक Dated : 14th August, 2023 सतीश ITA No.320/PUN/2023 Dr. Sukumar J. Magdum Foundation 5 आदेश की ितिलिप अ ेिषत/Copy of the Order is forwarded to: 1. अपीलाथ / The Appellant; 2. 3. थ / The respondent The Pr.CIT concerned 4. DR, ITAT, ‘B’ Bench, Pune 5. गाड फाईल / Guard file. आदेशानुसार/ BY ORDER, // True Copy // Senior Private Secretary आयकर अपीलीय अिधकरण ,पुणे / ITAT, Pune Date 1. Draft dictated on 14-08-2023 Sr.PS 2. Draft placed before author 14-08-2023 Sr.PS 3. Draft proposed & placed before the second member JM 4. Draft discussed/approved by Second Member. JM 5. Approved Draft comes to the Sr.PS/PS Sr.PS 6. Kept for pronouncement on Sr.PS 7. Date of uploading order Sr.PS 8. File sent to the Bench Clerk Sr.PS 9. Date on which file goes to the Head Clerk 10. Date on which file goes to the A.R. 11. Date of dispatch of Order. *