The due date of Audit Report and ITR Filing by Trust & NGO: Confusion & Clarification

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The due date of Audit Report and ITR Filing by Trust & NGO: Confusion & Clarification

 
Query]
  1. Ours is an NGO registered with FCRA. The last date of submission was 31st Dec 2021. Your have mentioned in you article that the Audit report may be uploaded before 15th Jan 2022 accessible at- https://thetaxtalk.com/2022/01/11/finally-tax-audit/
  2. We are yet to upload. We should be doing it in a couple of days. Please guide regarding the extended date of 15th Jan 2022. Kindly forward the notification regarding extension of filing audited report of FCRA registered NGO, extended upto 15th Jan 2022? [SP]
Opinion:
Thanks for the issue and query. I believe there are many taxpayers who are equally engrossed with this issue. Let me try to simplify the issue in the easiest possible way. Please let me know if any doubt or confusion remains.
  1. The due date is governed by section 139(1) of the Income Tax Act – 1961 which provides a due date for various classes of the taxpayers.
  2. Section 139 is a complete code in itself and it provides the persons who are required to file the return, categories of persons who are required to file, different situations in which the return may be required even without income, due date within which  the return should be filed by the taxpayers, etc.
  3. Section 139 read with section 119 further empowers the CBDT to further relax the due date if the circumstances or situation so demands.
  4. The explanation 2 in section 139 provides for the due date of filing income tax returns for different categories of the taxpayers as under:
    Explanation 2.—In this sub-section, “due date” means,—
    (a) where the assessee other than an assessee referred to in clause (aa) is—
 (i)  a company; or
 (ii)  a person (other than a company) whose accounts are required to be audited under this Act or under any other law for the time being in force; or
(iii) a partner of a firm whose accounts are required to be audited under this Act or under any other law for the time being in force or the spouse of such partner if the provisions of section 5A applies to such spouse],
the 1st day of October] of the assessment year;
  1. It may be noted that the due date is 31st October for certain categories of person specified therein.
  2. In clause (ii), it includes “a person (other than a company) whose accounts are required to be audited under this Act or under any other law for the time being in force;”

     

  3. One may note that the trusts are required to get the books of accounts audited under the relevant Act also wherein it is registered. Normally, trusts are registered either under the Society Act, Companies Act, Trust Act etc. All such Act throughout the country stipulates to get the books of accounts of trust audited as a mandatory condition.
    Further, the Income Tax Act also provides for the audit of the trust if the income (i.e., gross receipts in general ) of such trust exceeds the amount which is not chargeable to tax (i.e., Rs. 2.50 Lakh for most of the trust as this is the basic exemption limit which is applicable to individual assessee).
    In short, the trusts are required to get the books of accounts audited under the Respective Act of their registration as well as under the Income Tax Law. Even if the audit is required in any o f the Act, it would fall in the clause (ii) to Explanation 2 reproduced above.
    The above discussion is just to highlight that the due date for trust is 31st October and not 31st July as applicable to other categories of the taxpayers.

     

  4. The due date of filing the income tax return is often relaxed / extended by the CBDT to take care of special situations & problems in filing the income tax return. This date of 31st October for the FY 2020-21 was extended to 15th February 2022 by the CBDT vide Circular No.9/2021 dated 20.05.2021 and Circular No.17/2021 dated 09.09.2021. This date is further extended to 15th March 2022 now by Circular NO. 1/2022 dated 11.02.2021.
  5. It may be noted that the due date of filing income tax return by the trust is 15th March 2022 now for FY 2020-21. You may refer ­
https://thetaxtalk.com/2022/01/11/finally-tax-audit/
  1. As far as the audit of the trust is concerned, the due date for filing the audit report is specified as one month prior to the due date of filing the income tax return.
    In short, the due date of filing the audit report by the trust shall be 15th February 2022 now for the FY 2020-21.
  2. It may be noted that there is no special or separate due date for FCRA registered NGO. The date applicable to normal trust would be applicable even to the FCRA registered NGO. The Act itself contains the provision of the due date and as such no separate notification / circular is required except in respect of date extension which is referred to and discussed hereinabove.
  3. Section 139 of the Income Tax Act-1961 is reproduced hereunder for ease of reference and access
For ease of reference, Section 139(1) is reproduced hereunder for easy access and understanding:
 Return of income.
  1. (1) Every person,—
(a)  being a company or a firm; or
(b)  being a person other than a company or a firm, if his total income or the total income of any other person in respect of which he is assessable under this Act during the previous year exceeded the maximum amount which is not chargeable to income-tax,
shall, on or before the due date, furnish a return of his income or the income of such other person during the previous year, in the prescribed38 form and verified in the prescribed manner and setting forth such other particulars as may be prescribed :
Provided that a person referred to in clause (b), who is not required to furnish a return under this sub-section and residing in such area as may be specified by the Board in this behalf by notification in the Official Gazette, and who during the previous year incurs an expenditure of fifty thousand rupees or more towards consumption of electricity or at any time during the previous year fulfils any one of the following conditions, namely :—
(i)  is in occupation of an immovable property exceeding a specified floor area, whether by way of ownership, tenancy or otherwise, as may be specified by the Board in this behalf; or
(ii) is the owner or the lessee of a motor vehicle other than a two-wheeled motor vehicle, whether having any detachable side car having extra wheel attached to such two-wheeled motor vehicle or not; or
(iii) [***]
(iv) has incurred expenditure for himself or any other person on travel to any foreign country; or
(v)  is the holder of a credit card, not being an “add-on” card, issued by any bank or institution; or
(vi) is a member of a club where entrance fee charged is twenty-five thousand rupees or more,
shall furnish a return, of his income during any previous year ending before the 1st day of April, 2005, on or before the due date in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed :
Provided further that the Central Government may, by notification in the Official Gazette, specify the class or classes of persons to whom the provisions of the first proviso shall not apply :
Provided also that every company or a firm shall furnish on or before the due date the return in respect of its income or loss in every previous year :
Provided also that a person, being a resident other than not ordinarily resident in India within the meaning of clause (6) of section 6, who is not required to furnish a return under this sub-section and who at any time during the previous year,—
(a)  holds, as a beneficial owner or otherwise, any asset (including any financial interest in any entity) located outside India or has signing authority in any account located outside India; or
(b)  is a beneficiary of any asset (including any financial interest in any entity) located outside India,
shall furnish, on or before the due date, a return in respect of his income or loss for the previous year in such form and verified in such manner and setting forth such other particulars as may be prescribed:
Provided also that nothing contained in the fourth proviso shall apply to an individual, being a beneficiary of any asset (including any financial interest in any entity) located outside India where, income, if any, arising from such asset is includible in the income of the person referred to in clause (a) of that proviso in accordance with the provisions of this Act:
Provided also that every person, being an individual or a Hindu undivided family or an association of persons or a body of individuals, whether incorporated or not, or an artificial juridical person, if his total income or the total income of any other person in respect of which he is assessable under this Act during the previous year, without giving effect to the provisions of clause (38) of section 10 or section 10A or section 10B or section 10BA or section 54 or section 54B or section 54D or section 54EC or section 54F or section 54G or section 54GA or section 54GB or Chapter VI-A exceeded the maximum amount which is not chargeable to income-tax, shall, on or before the due date, furnish a return of his income or the income of such other person during the previous year, in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed:
39[Provided also that a person referred to in clause (b), who is not required to furnish a return under this sub-section, and who during the previous year—
(i)  has deposited an amount or aggregate of the amounts exceeding one crore rupees in one or more current accounts maintained with a banking company or a co-operative bank; or
(ii)  has incurred expenditure of an amount or aggregate of the amounts exceeding two lakh rupees for himself or any other person for travel to a foreign country; or
(iii) has incurred expenditure of an amount or aggregate of the amounts exceeding one lakh rupees towards consumption of electricity; or
(iv) fulfils such other conditions as may be prescribed,
shall furnish a return of his income on or before the due date in such form and verified in such manner and setting forth such other particulars, as may be prescribed.]
Explanation 1.—For the purposes of this sub-section, the expression “motor vehicle” shall have the meaning assigned to it in clause (28) of section 2 of the Motor Vehicles Act, 1988 (59 of 1988).
Explanation 2.—In this sub-section, “due date” means,—
(a) where the assessee other than an assessee referred to in clause (aa) is—
 (i)  a company; or
 (ii)  a person (other than a company) whose accounts are required to be audited under this Act or under any other law for the time being in force; or
(iii) a 40[***] partner of a firm whose accounts are required to be audited under this Act or under any other law for the time being in force 41[or the spouse of such partner if the provisions of section 5A applies to such spouse],
the 42[31st day of October] of the assessment year;
(aa) in the case of an assessee 43[, including the partners of the firm or the spouse of such partner (if the provisions of section 5A applies to such spouse), being such assessee,] who is required to furnish a report referred to in section 92E, the 30th day of November of the assessment year;
(b)  in the case of a person other than a company, referred to in the first proviso to this sub-section, the 31st day of October of the assessment year;
(c)  in the case of any other assessee, the 31st day of July of the assessment year.
Explanation 3.—For the purposes of this sub-section, the expression “travel to any foreign country” does not include travel to the neighbouring countries or to such places of pilgrimage as the Board may specify in this behalf by notification in the Official Gazette.
Explanation 4.—For the purposes of this section “beneficial owner” in respect of an asset means an individual who has provided, directly or indirectly, consideration for the asset for the immediate or future benefit, direct or indirect, of himself or any other person.
Explanation 5.—For the purposes of this section “beneficiary” in respect of an asset means an individual who derives benefit from the asset during the previous year and the consideration for such asset has been provided by any person other than such beneficiary.
44[Explanation 6.—For the purposes of this sub-section,—
(a)  “banking company” shall have the meaning assigned to it in clause (i) of the Explanation to section 269SS;
(b)  “co-operative bank” shall have the meaning assigned to it in clause (ii) of the Explanation to section 269SS.]
(1A) Without prejudice to the provisions of sub-section (1), any person, being an individual who is in receipt of income chargeable under the head “Salaries” may, at his option, furnish a return of his income for any previous year to his employer, in accordance with such scheme as may be specified by the Board in this behalf, by notification in the Official Gazette, and subject to such conditions as may be specified therein, and such employer shall furnish all returns of income received by him on or before the due date, in such form (including on a floppy, diskette, magnetic cartridge tape, CD-ROM or any other computer readable media) and manner as may be specified in that scheme, and in such case, any employee who has filed a return of his income to his employer shall be deemed to have furnished a return of income under sub-section (1), and the provisions of this Act shall apply accordingly.
(1B) Without prejudice to the provisions of sub-section (1), any person, being a company or being a person other than a company, required to furnish a return of income under sub-section (1), may, at his option, on or before the due date, furnish a return of his income for any previous year in accordance with such scheme as may be specified by the Board in this behalf by notification in the Official Gazette and subject to such conditions as may be specified therein, in such form (including on a floppy, diskette, magnetic cartridge tape, CD-ROM or any other computer readable media) and in the manner as may be specified in that scheme, and in such case, the return of income furnished under such scheme shall be deemed to be a return furnished under sub-section (1), and the provisions of this Act shall apply accordingly.
(1C) Notwithstanding anything contained in sub-section (1), the Central Government may, by notification in the Official Gazette, exempt any class or classes of persons from the requirement of furnishing a return of income having regard to such conditions as may be specified in that notification.
(3) If any person who has sustained a loss in any previous year under the head “Profits and gains of business or profession” or under the head “Capital gains” and claims that the loss or any part thereof should be carried forward under sub-section (1) of section 72, or sub-section (2) of section 73, or sub-section (2) of section 73A or sub-section (1) or sub-section (3) of section 74, or sub-section (3) of section 74A, he may furnish, within the time allowed under sub-section (1), a return of loss in the prescribed form45 and verified in the prescribed manner and containing such other particulars as may be prescribed, and all the provisions of this Act shall apply as if it were a return under sub-section (1).
(4) Any person who has not furnished a return within the time allowed to him under sub-section (1), may furnish the 46[return for any previous year at any time before three months prior to] the end of the relevant assessment year or before the completion of the assessment, whichever is earlier.
(4A) 45Every person in receipt of income derived from property held under trust or other legal obligation wholly for charitable or religious purposes or in part only for such purposes, or of income being voluntary contributions referred to in sub-clause (iia) of clause (24) of section 2, shall, if the total income in respect of which he is assessable as a representative assessee (the total income for this purpose being computed under this Act without giving effect to the provisions of sections 11 and 12) exceeds the maximum amount which is not chargeable to income-tax, furnish a return of such income of the previous year in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed and all the provisions of this Act shall, so far as may be, apply as if it were a return required to be furnished under sub-section (1).
(4B) 45The chief executive officer (whether such chief executive officer is known as Secretary or by any other designation) of every political party shall, if the total income in respect of which the political party is assessable (the total income for this purpose being computed under this Act without giving effect to the provisions of section 13A) exceeds the maximum amount which is not chargeable to income-tax, furnish a return of such income of the previous year in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed and all the provisions of this Act, shall, so far as may be, apply as if it were a return required to be furnished under sub-section (1).
(4C) Every—
(a)  research association referred to in clause (21) of section 10;
(b)  news agency referred to in clause (22B) of section 10;
(c)  association or institution referred to in clause (23A) of section 10;
(ca) person referred to in clause (23AAA) of section 10;
(d)  institution referred to in clause (23B) of section 10;
(e)  fund or institution referred to in sub-clause (iv) or trust or institution referred to in sub-clause (v) or any university or other educational institution referred to in sub-clause (iiiab) or sub-clause (iiiad) or sub-clause (vi) or any hospital or other medical institution referred to in sub-clause (iiiac) or sub-clause (iiiae) or sub-clause (via) of clause (23C) of section 10;
(ea) Mutual Fund referred to in clause (23D) of section 10;
(eb) securitisation trust referred to in clause (23DA) of section 10;
(eba) Investor Protection Fund referred to in clause (23EC) or clause (23ED) of section 10;
(ebb) Core Settlement Guarantee Fund referred to in clause (23EE) of section 10;
(ec) venture capital company or venture capital fund referred to in clause (23FB) of section 10;
(f)  trade union referred to in sub-clause (a) or association referred to in sub-clause (b) of clause (24) of section 10;
(fa) Board or Authority referred to in clause (29A) of section 10;
(g)  body or authority or Board or Trust or Commission (by whatever name called) referred to in clause (46) of section 10;
(h)  infrastructure debt fund referred to in clause (47) of section 10,
shall, if the total income in respect of which such research association, news agency, association or institution, person or fund or trust or university or other educational institution or any hospital or other medical institution or trade union or body or authority or Board or Trust or Commission or infrastructure debt fund or Mutual Fund or securitisation trust or venture capital company or venture capital fund is assessable, without giving effect to the provisions of section 10, exceeds the maximum amount which is not chargeable to income-tax, furnish a return of such income of the previous year in the prescribed form47 and verified in the prescribed manner and setting forth such other particulars as may be prescribed and all the provisions of this Act shall, so far as may be, apply as if it were a return required to be furnished under sub-section (1).
(4D) Every university, college or other institution referred to in clause (ii) and clause (iii) of sub-section (1) of section 35, which is not required to furnish return of income or loss under any other provision of this section, shall furnish the return in respect of its income or loss in every previous year and all the provisions of this Act shall, so far as may be, apply as if it were a return required to be furnished under sub-section (1).
(4E) Every business trust, which is not required to furnish return of income or loss under any other provisions of this section, shall furnish the return of its income in respect of its income or loss in every previous year and all the provisions of this Act shall, so far as may be, apply* if it were a return required to be furnished under sub-section (1).
(4F) Every investment fund referred to in section 115UB, which is not required to furnish return of income or loss under any other provisions of this section, shall furnish the return of income in respect of its income or loss in every previous year and all the provisions of this Act shall, so far as may be, apply as if it were a return required to be furnished under sub-section (1).
(5) If any person, having furnished a return under sub-section (1) or sub-section (4), discovers any omission or any wrong statement therein, he may furnish a revised return at any time 48[before three months prior to the end] of the relevant assessment year or before the completion of the assessment, whichever is earlier.
(6) The prescribed form of the returns referred to in sub-sections (1) and (3) of this section, and in clause (i) of sub-section (1) of section 142 shall, in such cases as may be prescribed, require the assessee to furnish the particulars of income exempt from tax, assets of the prescribed nature and value, held by him as a beneficial owner or otherwise or in which he is a beneficiary, his bank account and credit card held by him, expenditure exceeding the prescribed limits incurred by him under prescribed heads and such other outgoings as may be prescribed.
(6A) Without prejudice to the provisions of sub-section (6), the prescribed form of the returns referred to in this section, and in clause (i) of sub-section (1) of section 142 shall, in the case of an assessee engaged in any business or profession, also require him to furnish the report of any audit referred to in section 44AB, or, where the report has been furnished prior to the furnishing of the return, a copy of such report together with proof of furnishing the report, the particulars of the location and style of the principal place where he carries on the business or profession and all the branches thereof, the names and addresses of his partners, if any, in such business or profession and, if he is a member of an association or body of individuals, the names of the other members of the association or the body of individuals and the extent of the share of the assessee and the shares of all such partners or the members, as the case may be, in the profits of the business or profession and any branches thereof.
(7) [***]
49(8)(a) Where the return under sub-section (1) or sub-section (2) or sub-section (4) for an assessment year is furnished after the specified date, or is not furnished, then [whether or not the Assessing Officer has extended the date for furnishing the return under sub-section (1) or sub-section (2)], the assessee shall be liable to pay simple interest at fifteen per cent per annum, reckoned from the day immediately following the specified date to the date of the furnishing of the return or, where no return has been furnished, the date of completion of the assessment under section 144, on the amount of the tax payable on the total income as determined on regular assessment, as reduced by the advance tax, if any, paid, and any tax deducted at source :
Provided that the Assessing Officer may, in such cases and under such circumstances as may be prescribed50, reduce or waive the interest payable by any assessee under this sub-section.
Explanation 1.—For the purposes of this sub-section, “specified date”, in relation to a return for an assessment year, means,—
(a) in the case of every assessee whose total income, or the total income of any person in respect of which he is assessable under this Act, includes any income from business or profession, the date of the expiry of four months from the end of the previous year or where there is more than one previous year, from the end of the previous year which expired last before the commencement of the assessment year or the 30th day of June of the assessment year, whichever is later;
(b) in the case of every other assessee, the 30th day of June of the assessment year.
Explanation 2.—Where, in relation to an assessment year, an assessment is made for the first time under section 147, the assessment so made shall be regarded as a regular assessment for the purposes of this sub-section.
(b) Where as a result of an order under section 147 or section 154 or section 155 or section 250 or section 254 or section 260 or section 262 or section 263 or section 264 or an order of the Settlement Commission under sub-section (4) of section 245D, the amount of tax on which interest was payable under this sub-section has been increased or reduced, as the case may be, the interest shall be increased or reduced accordingly, and—
 (i)  in a case where the interest is increased, the Assessing Officer shall serve on the assessee, a notice of demand in the prescribed form specifying the sum payable, and such notice of demand shall be deemed to be a notice under section 156 and the provisions of this Act shall apply accordingly;
 (ii)  in a case where the interest is reduced, the excess interest paid, if any, shall be refunded.
(c)  The provisions of this sub-section shall apply in respect of the assessment for the assessment year commencing on the 1st day of April, 1988, or any earlier assessment year, and references therein to the other provisions of this Act shall be construed as references to the said provisions as they were applicable to the relevant assessment year.
(9) Where the Assessing Officer considers that the return of income furnished by the assessee is defective, he may intimate the defect to the assessee and give him an opportunity to rectify the defect within a period of fifteen days from the date of such intimation or within such further period which, on an application made in this behalf, the Assessing Officer may, in his discretion, allow; and if the defect is not rectified within the said period of fifteen days or, as the case may be, the further period so allowed, then, notwithstanding anything contained in any other provision of this Act, the return shall be treated as an invalid return and the provisions of this Act shall apply as if the assessee had failed to furnish the return :
Provided that where the assessee rectifies the defect after the expiry of the said period of fifteen days or the further period allowed, but before the assessment is made, the Assessing Officer may condone the delay and treat the return as a valid return.
Explanation.—For the purposes of this sub-section, a return of income shall be regarded as defective unless all the following conditions are fulfilled, namely :—
(a)  the annexures, statements and columns in the return of income relating to computation of income chargeable under each head of income, computation of gross total income and total income have been duly filled in;
(aa) [***]
(b)  the return is accompanied by a statement showing the computation of the tax payable on the basis of the return;
(bb) the return is accompanied by the report of the audit referred to in section 44AB, or, where the report has been furnished prior to the furnishing of the return, by a copy of such report together with proof of furnishing the report;
(c)  the return is accompanied by proof of—
 (i)  the tax, if any, claimed to have been deducted or collected at source and the advance tax and tax on self-assessment, if any, claimed to have been paid :
Provided that where the return is not accompanied by proof of the tax, if any, claimed to have been deducted or collected at source, the return of income shall not be regarded as defective if—
(a)  a certificate for tax deducted or collected was not furnished under section 203 or section 206C to the person furnishing his return of income;
(b)  such certificate is produced within a period of two years specified under sub-section (14) of section 155;
 (ii)  the amount of compulsory deposit, if any, claimed to have been made under the Compulsory Deposit Scheme (Income-tax Payers) Act, 1974 (38 of 1974);
(d)  where regular books of account are maintained by the assessee, the return is accompanied by copies of—
(i) manufacturing account, trading account, profit and loss account or, as the case may be, income and expenditure account or any other similar account and balance sheet;
(ii) in the case of a proprietary business or profession, the personal account of the proprietor; in the case of a firm, association of persons or body of individuals, personal accounts of the partners or members; and in the case of a partner or member of a firm, association of persons or body of individuals, also his personal account in the firm, association of persons or body of individuals;
(e) where the accounts of the assessee have been audited, the return is accompanied by copies of the audited profit and loss account and balance sheet and the auditor’s report and, where an audit of cost accounts of the assessee has been conducted, under section 233B 51 of the Companies Act, 1956 (1 of 1956), also the report under that section;
(f) where regular books of account are not maintained by the assessee, the return is accompanied by a statement indicating the amounts of turnover or, as the case may be, gross receipts, gross profit, expenses and net profit of the business or profession and the basis on which such amounts have been computed, and also disclosing the amounts of total sundry debtors, sundry creditors, stock-in-trade and cash balance as at the end of the previous year:
52[Provided that the Board may, by notification in the Official Gazette, specify that any of the conditions specified in clauses (a) to (f) to the Explanation shall not apply to such class of assessees or shall apply with such modifications, as may be specified in such notification.]
(10) [Omitted by the Finance (No. 2) Act, 1991, w.e.f. 1-4-1991.]
I hope that above elaboration would clarify the doubts on the issue.
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