आदेश / O R D E R

Per Bench:

1. ITANo.821/Ind/2025, A.Y. 2016-17

This is an Appeal filed by the Assessee under section 253 of the income tax Act 1961,[ herein after referred to as the Act for the sake of brevity] before this tribunal as & by way of a second Appeal. The Assessee is aggrieved by the order bearing Number:-ITBA/NFAC/S/250/2023-24/1060674433 (1) dated 08.02.2024 passed by the Ld. CIT(A) u/s 250 of the Act, which is herein after referred to as the “Impugned order”. The Relevant Assessment year is 2016-17 and the corresponding previous year period is from 01.04.2015 to 31.03.2016.

2. Factual Matrix

2.1 That as and by way of an Assessment order made u/s 154 of the Act bearing No:- ITBA/COM/F/17/2021-22/1038273732(1) dated 30.12.2021 the assessee’s request for the rectification of an “intimation order dated 30.04.2018” was rejected. The core issue was of Non filling of the form 10BB audit report along with return of income in ITR – 7. The total income was assessed at Rs. 1,38,72,434/- & the demand of Rs. 63,79,920/- was “created” by the “original intimation order u/s 143(1) dated 30.04.2018” wherein the benefit of relief by virtue of the Form 10BB [audit report] was denied as same was not filed with the ROI. The assessee had claimed the exemption u/s 10(23C) (via) of the act in the ITR-7. That the aforesaid order u/s 154 is herein after referred to as the “Impugned assessment Order u/s 154” of the act which is reproduced as below:-

“The assessee has e-filed its return of income for the A.Y. 2016-17 declaring total income at Rs. Nil on 13.12.2017 whereas Form 10BB was not filed. The return of income was processed and intimation u/s 143(1) was issued to the assessee on 30.04.2018 by the CPC assessing total income at Rs. 1,38,72,434/- and a demand of Rs.63,79,920/- was created.

The assessee has filed an application u/s 154 dated 08.12.2021 stated that:-

"That the assessee is a charitable institution registered u/s 12AA (1)(b)(i) of the Income Tax Act, 1961 and during the year incurred expenses of Rs. 1,44,53,795/- against the grant received of Rs. 1,38,72,434/- and hence surplus in the aforesaid period is Rs.0 which is offered in the income tax retum filed as aforesaid. That due to inadvertent mistake done at the time of filing of ITR, expenses otherwise claimable are disallowed in the order received u/s 143(1). Thus, you are requested to allow the expenses thereby correcting the mistake apparent from record which is requested to be rectified us 154 of the Act and to kindly delete the demand raised as stated above."

On perusal of records, it is found that the assessee filed return of income for the year under consideration on 19.09.2014 whereas Form 10BB was not filed alongwith the ITR.

The assessee has claimed exemption U/s 10(23C) (via) of the Act but not filed audit report in Form in 10BB alongwith the return of income in ITR-7. Therefore, the return of income was correctly processed by the CPC disallowing the exemption. Hence, there is no mistake apparent from the records i.e. computation of income as well as computation of tax.

In view of the above facts, the application u/s 154 of the Income Tax Act, 1961 is hereby rejected.”

2.2 That the assessee being aggrieved by the aforesaid “Impugned Assessment Order u/s 154” prefers the first appeal u/s 246A of the act before the Ld. CIT(A) who by the “Impugned Order” has dismissed the first appeal of the assesse on the grounds & reasons stated therein. The core grounds & reasons for the dismissal of the first appeal was as under:-

“4. Limitation

The appeal has not been presented within the stipulated period of thirty days from the date of service of the notice of demand relating to the rectification order. It is noticed from Form No. 35 that the appeal has been presented on 20.04.2022 whereas the date of demand notice and rectification order is mentioned as 30.12.2021. Thus, the appeal in present case has been filed after delay of 80 days. The appellant has sought condonation