Bombay High Court
St. Thomas Orthodox Syrian Church vs The Commissioner Of Income Tax ... on 3 January, 2020
Equivalent citations: AIRONLINE 2020 BOM 1659
Author: M.S.Karnik
Bench: Nitin Jamdar, M.S.Karnik
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Sequeira
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 3631 OF 2019
St.Thomas Orthodox Syrian Church .. Petitioner
Vs
The Commissioner of Income Tax
(Exemptions) and others .. Respondents
Mr.Mandar Vaidya, for the Petitioner.
Mr.Abhay Ahuja a/w Mr.P.A.Narayanan a/w Ms.Sangeeta Yadav, for
Respondents.
CORAM : NITIN JAMDAR &
M.S.KARNIK , JJ.
Date : 3 January 2020.
P.C. :
At the joint request, taken up for final disposal.
2. The Petitioner has challenged the order dated 26 September 2019 passed by the Commissioner of Income Tax (Exemptions) under Section 119(2)(b) of the Income Tax Act 1961 ( the 'Act') in respect of condonation of delay in filing Form No.10 under section 11(2) of the Act.
3. The Petitioner a public trust, is registered under section 12AA of the Act. The Petitioner carries on various charitable 2 5 WP 3631-2019.e.doc activities including services of spiritual nature. The Petitioner filed the return of income on 24 August 2016 under section 139(4A) disclosing 'NIL' income after claiming exemption under section 11 of the Act. It is the Petitioner's case that the Petitioner had claimed accumulation of income to the tune of Rs.72,00,000/- under section 11(2) of the Act. The Petitioner received an intimation under section 143(1) of the Act on 26 February 2018. By this intimation, the benefit of accumulation under section 11(2) was refused, according to the Petitioner, because the Form 10 required to be filed under the Income-tax Rules, 1962, was filed beyond the period specified in section 11(2).
4. The controversy in the Petition pertains to the rejection of the application filed by the Petitioner for condonation of delay in filing Form 10. By the impugned order the Commissioner, held against the Petitioner on two counts. First, that the Petitioner had made no claim of accumulation under section 11(2) in the return of income and second, no cogent reason was given for condonation of delay.
5. We have heard the learned Counsel Mr.Vaidya for the Petitioner and Mr.Ahuja, the learned Counsel for Respondents.
6. As regards the primary ground of refusal that is the Petitioner did not claim of accumulation under section 11(2) in the 3 5 WP 3631-2019.e.doc return of income, Mr.Vaidya the learned Counsel for the Petitioner submits that in the return of income the claim has been made; however, it has been made under a wrong head. Mr. Vaidya has drawn our attention to the return of income filed by the Petitioner wherein amount of Rs.72,00,000/- is entered under the column 9(iv) of the form. Mr.Vaidya submits this was due to an error while filling up the Form no.10 electronically and that for this error the entire claim of the Petitioner ought not to be rejected. Mr.Vaidya submits that the error is procedural and the substantive claim of accumulation should not have been defeated in such a manner.
7. Mr.Ahuja, the learned Counsel for the Respondents submits there was no inadvertent error and Petitioner fully knew such claim must be made in the proper column. The Petitioner has chosen not to enter the amount in the proper column to gain an undue advantage.
8. Mr.Ahuja pointed out that against the order of assessment an appeal has been filed wherein similar contention regarding refusal to condone delay is taken and therefore, Petitioner cannot be permitted to take the same ground in two proceedings. Mr.Vaidya submits that even though such ground is taken in appeal, the power to condone the delay under section 119(2)(b) of the Act lies only with the Commissioner of Income-tax (Exemptions), as delegated, and therefore, will have to be considered in this Petition.
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9. We have considered the rival contentions. There is no finding in the impugned order as to whether the entry was made due to an error or it was a deliberate act. The case of the Petitioner of an error of making a claim under a wrong head needs to be considered by the Commissioner. It is not possible for us to decide this question of fact in the first instance. It is for the Commissioner to decide whether the action of the Petitioner was due to inadvertence as claimed by the Petitioner or is a part of a design as claimed by Respondents. In these circumstances, we deem it appropriate to remand the proceedings to the Commissioner to consider this aspect.
10. The order dated 26 September 2019 passed by the Commissioner of Income Tax (Exemptions) is quashed set aside. The application filed by the Petitioner for condonation of delay stands restored for consideration of the Commissioner. The Commissioner will consider the case of the Petitioner on its own merits. If the Commissioner concludes that the Petitioner had made a claim inadvertently in a wrong column, then the question whether cogent reason exists for condonation of delay would arise for consideration.
11. The Petitioner will appear before the Commissioner on 20 January 2020, for the Commissioner to give further direction as regards the date of hearing of the application. All contentions are kept open.
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12. Petition is disposed of in above terms.
M.S.KARNIK, J. NITIN JAMDAR, J.
Maria Digitally signed
by Maria Luiza
Luiza Sequeira
Date: 2020.01.08
Sequeira 23:12:00 +0530