Dr. Ernest Borges Memorial Fund v. ITO(E)

Case snapshot

Sections / provisions: 11; 119(2)(b)

Questions before the Court / Tribunal

• Delayed Form 9A and charitable exemption: The matter addresses a delayed procedural filing connected with charitable exemption. The reported approach distinguishes substantive eligibility from delay in the prescribed form and considers the remedial framework for condonation.

Material facts and background

Brief facts relevant for adjudication of the instant appeal are that

the Assessee filed its original return of income on 27.10.2016, declaring total income at Nil after claiming exemption u/s. 11 of the Act. The Assessee subsequently revised its return of income and claimed deemed application of income amounting to Rs.31,22,955/- by exercising the option contemplated under clause (2) of the Explanation to section 11(1) of the Act r.w.r. 17 of the Income-tax Rules, 1962 {in short ‘Rules’}.

The return was subsequently selected for complete scrutiny under

CASS and statutory notices were issued to the Assessee. 4.

The Assessing Officer (in short, “the AO”) observed that the

Rs.1,06,79,808/- u/s. 11(2) of the Act. According to the AO, filing of the prescribed Form No.10 was mandatory for claiming accumulation u/s. 11(2), whereas Form No.9A was required for exercising the option of deemed application of income. The AO, thus considering the fact that the prescribed form had not been filed within the stipulated period, denied the Assessee’s

Rs.31,22,955/- and added the same to its total income. 5.

Appellant / assessee submissions

The judgment copy does not separately set out this component in a distinct section; refer to the full order and the reasoning section below.

Revenue / respondent submissions

On the contrary, the Ld. DR opposes the Assessee’s claim and

Court / Tribunal analysis and reasoning

submits that the application for condonation of delay in filing Form No.9A has already been rejected by the Ld. PCIT (Exemptions). Therefore, according the Assessee is not entitled to the benefit of deemed application of income and the Ld. Commissioner has no power to condone the delay under section 119(2)(b) of the Act. 10.

additional in nature and does not take away the appellate remedy otherwise available to the Assessee under the Act. Therefore, rejection of an application by the competent administrative authority does not, by itself, preclude the appellate authority from examining, whether the Assessee has substantially complied with the statutory requirements and is otherwise entitled to the exemption claimed. 13.

therefore, the Hon’ble High Court has noted the fact that the possibility of the petitioner having inadvertently failed to file Form No. 9A cannot be ruled out. Precisely for this reason, the Board issued various circulars empowering the Commissioner of Income Tax to condone the delay in filing Form No. 9A and Form No. 10 in genuine cases and to decide the issue on merits. The Hon’ble High Court further observed that, we find the petitioner is a charitable trust carrying on various charitable activities for the last 38 years and if this delay is not condoned, there will be genuine hardship to the petitioner, inasmuch as the petitioner would be saddled with the tax liability of Rs.51,93,031/-, even though it has substantially complied with the provision of Section 11 of the Act. 15.

judgments and similar views expressed by various Courts while condoning the delay, specifically in the case of Sarvodaya Charitable Trust vs. ITO (Exemption) [(2021) 125 taxmann.com 75/278 Taxman 148 (Gujarat)], wherein the Hon’ble High Court has made it clear that, in cases like the present one, the approach of the authorities ought to be equitable, balanced and judicious, and the benefit of exemption should not be denied merely on the ground of limitation. This is more so when the legislature has conferred wide discretionary powers upon the authorities concerned to condone the delay. For better understanding and ready reference, the conclusion drawn by the Hon’ble High Court is reproduced hereinbelow: “14. We have heard the learned Counsel for the parties. We have also perused the materials placed on record and the case laws relied upon. Admittedly, Assessment Year 2016-2017 was the first year wherein filing of Form No. 9A was prescribed by the amendment made by the Finance Act, 2015. Hence, the possibility of the Petitioner having inadvertently failed to file the same cannot be ruled out. Precisely for this reason, the Board issued various Circulars empowering the Commissioner...

been filed during the course of assessment proceedings, the same should have been considered. We find that the Petitioner is a charitable Trust carrying on various Charitable activities for the last 38 years, and if this delay is not condoned, there will be genuine hardship to the Petitioner, inasmuch as the Petitioner would be saddled with a tax liability of Rs. 51,93,031/-, even though it has substantially complied with the provisions of Section 11 of the Act. 15. We also find that in similar facts, this Court in the case of Mirae Asset Foundation v. Pr. Commissioner of Income-tax [2025] 176 taxmann.com 345/306 Taxman 3 (Bombay)/(WP No. 713 of 2025) and Sau Dwarkabai Tai Karwa Charitable Public Trust v. CIT (Exemptions) [2025] 174 taxmann.com 245 (Bombay)and Kotak Family Foundation v. CIT (Exemption) [2025] 176 taxmann.com 56/306 Taxman 57 (Bombay) has taken a similar view and condoned the delay. Further the Hon'ble Gujarat High Court in the case of Sarvodaya Charitable Trust v. ITO (Exemption) [2021] 125 taxmann.com 75/278 Taxman 148 (Gujarat) has taken a view that in cases like the present one, the approach of the Authorities ought to be equitious, balancing and judicious and...

which the requirement of electronic filing of Form No.9A was introduced. The possibility of an inadvertent or bona fide omission on the part of the Assessee, therefore, cannot be ruled out. The delay was approximately three months and no material is brought on record to suggest that the delay was deliberate, mala fide or intended to obtain any undue benefit. 18.

Operative decision and relief

under Section 119(2)(b) of the Act and condone the delay in filing Form 9A by the Petitioner. 17. Rule is made absolute in the aforesaid terms and the Writ Petition is also disposed of in terms thereof. No order as to costs. 18. This order will be digitally signed by the Private Secretary/ Personal Assistant of this Court. All concerned will act on production by fax or email of a digitally signed copy of this order.”

Authorities and precedents appearing in the judgment

• Indian Panelboard Manufacturer v. DCIT
• Jurisdictional High Court in the case of Lakhi Trust vs. Income
• Sarvodaya Charitable Trust vs. ITO (Exemption)
• Foundation v. Pr. Commissioner of Income-tax
• Tai Karwa Charitable Public Trust v. CIT (Exemptions)
• Bombay)and Kotak Family Foundation v. CIT
• High Court in the case of Sarvodaya Charitable Trust v. ITO (Exemption)
• We may also refer to the decision of this Court in CIT v. Gujarat Oil and

This list is machine-assisted from the judgment text and is not a substitute for checking the full citation chain in the PDF.

Ratio and legal principle

The decision turns on Delayed Form 9A and charitable exemption. The operative result is classified as Disposed. Read the rule only with the statutory version, factual findings and precedent chain recorded in the full judgment.

Why this judgment matters

The case is relevant to taxpayers, advisers and litigators dealing with Delayed Form 9A and charitable exemption. Its practical value lies in the interaction between the statutory text, the evidentiary record and the procedural route followed in this case.

Practitioner action points

• Keep registration, audit-report, Form 10/10B/10BB and filing timestamps together; many exemption disputes are procedural and depend on when the form existed versus when it was uploaded.
• For litigation, attach the full judgment/order to the working paper and cite the paragraph/page supporting the proposition rather than relying on a headnote alone.

Full judgment and source trail

Read / download the clean local judgment copy

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