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2017 DIGILAW 801 (GUJ)

Shree Jain Swetamber Sangh v. Anil Kumar

2017-04-13

B.N.KARIA, M.R.SHAH

body2017
JUDGMENT : M.R. Shah, J. 1. RULE. Ms. Mauna Bhatt, learned advocate waives service of notice of rule on behalf of the respondent. 2. By way of this petition under Article 226 of the Constitution of India the petitioner - assessee, claiming to a religious and charitable trust, has prayed for an appropriate writ, order or direction quashing and setting aside the impugned order dated 28/11/2016 passed under Section 119(2)(b) of the Income Tax Act (hereinafter referred to as "the Act") by which the application submitted by the petitioner, to condone the delay in submitting Form No. 10 and to consider the same on merits, has been rejected on the ground that the original Form No. 10 itself is defective, and therefore, the question of condonation of delay in respect of defective does not arise. 3. The facts leading to the present Special Civil Application in nutshell are as under; 3.1 The petitioner - assessee filed the return of income for the Assessment Year 2014-15 on 09/09/2014 declaring the total income as Rs. NIL. The assessee had shown gross total receipt of Rs. 19,87,043/-. Against the said income, the assessee had shown utilization of Rs. 2,71,866/- and the assessee had also accumulated income of Rs. 1,65,177/- being 15% of the total receipt under Section 11(1)(a) of the Act. The assessee also set apart a sum of Rs. 15,50,000/- for specified purposes. However, the assessee did not file Form No. 10 evidencing accumulation of Rs. 15,50,000/- as required under the provisions of Section 11(2) of the Act. The return for the year under consideration was processed under Section 143(1) of the Act on 14/01/2016 wherein benefit of accumulation of Rs. 15,50,000/- was not allowed in the absence of Form No. 10. Thereafter, the assessee - trust submitted Form No. 10 belatedly and submitted an application dated 23/09/2016 to condone the delay in submitting Form No. 10 within the prescribed period in exercise of powers under Section 119(2)(b) of the Act and to consider Form No. 10 as well as to consider the claim of the assessee under Section 11(2) of the Act in accordance with law and on its own merits. However, it appears that thereafter somewhere on 16/11/2016 and on 21/11/2016 the assessee - trust preferred rectified Form No. 10. However, it appears that thereafter somewhere on 16/11/2016 and on 21/11/2016 the assessee - trust preferred rectified Form No. 10. Thereafter, by the impugned order dated 28/11/2016 the respondent authority has observed that as the original Form No. 10 itself is defective, and therefore, there is no question of condonation of delay in the defective form. 3.2 Feeling aggrieved and dissatisfied with the impugned order passed by the respondent, the petitioner has preferred the present Special Civil Application under Article 226 of the Constitution of India. 4. Having heard the learned advocates appearing on behalf of the respective parties and considering the impugned order passed by the respondent authority, it appears that while passing the impugned order the respondent authority has not considered at all the rectified Form No. 10, which was filed somewhere on 16 & 21/11/2016 and in any case it was prior to the impugned order dated 28/11/2016 wherein the respondent authority has observed that the question of condonation of delay in respect of defective form does not arise. Under the circumstances, we are of the opinion that when the petitioner had already filed the rectified Form No. 10, which was filed prior to the impugned order, the respondent authority was required to consider the same in accordance with law. Under the circumstances, the matter is required to be remanded to the respondent authority to consider the application of the petitioner and/or claim of the petitioner under Section 11(2) of the Act afresh by considering rectified Form No. 10 in accordance with law for which we have not expressed any opinion whether such rectified Form was permissible or not. However, in any case, the respondent authority was required to deal with rectified Form No. 10. 5. In view of the above and without further expressing anything on merits with respect to the claim of the petitioner under Section 11(2) of the Act, the impugned order is quashed and set aside on the aforesaid ground alone. The matter is remanded to the appropriate authority to consider the application of the petitioner afresh in accordance with law and on its own merits and by dealing with the rectified Form No. 10 in accordance with law. The matter is remanded to the appropriate authority to consider the application of the petitioner afresh in accordance with law and on its own merits and by dealing with the rectified Form No. 10 in accordance with law. However, it is made clear that we have not expressed anything on merits whether such rectified Form No. 10 was required to be considered and the appropriate authority to consider the consequence of filing the rectified Form No. 10 in accordance with law. Rule is made absolute to the aforesaid extent.`