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