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Income Tax Appellate Tribunal, “ D” BENCH, MUMBAI
Before: JUSTICE (Retd.) C V BHADANG
O R D E R Per BR BASKARAN, AM :
The assessee has filed this appeal challenging the order dated 11.07.2023passed by the learned Commissioner of Income Tax (Exemptions), Mumbai ( ‘Ld. CIT(E)’ for short) rejecting the rectification petition filed by the assessee seeking regular approval under section 80G(5) of the Income Tax Act, 1961 (‘the Act’ in short).
The facts relating to the issue are stated in brief by the assessee. The assessee is a Charitable Trust and was granted regular approval u/s 12A(1)(ac)(iii) of the Act. The assessee was also granted provisional approval u/s 80(G)(5) of the Act on 31.5.2021. Subsequently, the
The Ld CIT(E) noticed that clause (iii) of the proviso to sec.80G(5) of the Act is applicable in this case and the same reads as under:-
“(iii) where the institution or fund has been provisionally approved, at least six months prior to the expiry of period of the provisional approval or within six months of commencement of its activities, whichever is earlier.”
It was stated by Ld A.R that the provisional approval was granted for three years. Since the assessee had commenced its activities, it applied for regular approval as per the requirement of clause (iii) extracted above.
However, the Ld. CIT(E) took the view that the assessee has not commenced its activities and accordingly took the view that the application of the assessee is not maintainable. Accordingly, he rejected the application filed by the assessee.
The assessee filed a rectification application u/s 154 of the Act before the Ld. CIT(E) stating that the assessee has already commenced its charitable activities and hence its application was proper. However, the Ld. CIT(E) rejected the said application also, by observing as under:-
“2. With reference to your application for rectification in Form 10AD mentioned above. Your application in Form No.10AB was rejected by passing rejection order in Form No.10AD for regular approval u/s 80G(5) on 28-09-2022. In response to that, you have filed rectification application dated 20/06/2023. It is brought to your notice that on ‘System/ITBA Systems’ there is no technical way or any module/option available to rectify/give appeal effect/pass manual order the said order.
(A.Y 2022-23) Revive Heart Foundation Vs CIT(Exemptions) 3. However, if your trust comes under fulfilment of CBDT Circular No.6 of 2023 dated 24-05-2023 you can re-file your application in Form No.10AB.”
Aggrieved by the order so passed by the Ld. CIT(E), the assessee has filed this appeal.
We heard the parties and perused the records. We notice that Ld. CIT(E) has rejected the application filed by the assessee seeking regular approval u/s 80G(5) of the Act on the reasoning that the assessee has not commenced its activities, which according to the assessee is not correct. The Ld. Authorised Representative (‘ Ld. AR’ for short) submitted that the assessee has already commenced its activities and hence it filed application in Form No.10AB in terms of clause (iii) of the proviso u/s 80G(5) of the Act. He also submitted that relevant evidences were also produced before the Ld CIT(E), but the Ld CIT(E) did not examine the same.
With regard to the order passed by Ld CIT(E) on the rectification petition filed by the assessee, we are of the view that the assessee cannot be made to suffer on account of technical deficiencies in the system of Income tax department.
We noticed that the Ld. CIT(E) has not examined the evidences furnished by the assessee to prove commencement of charitable activities, meaning thereby, the reasoning given by Ld CIT(E) for rejecting the application of the assessee is not correct. We also noticed that the reasoning given by the Ld CIT(E) for rejecting the rectification application is also not sustainable. Even though the assessee has filed this appeal against the rectification order passed u/s 154 of the Act, yet the grievance of the assessee would not be addressed, unless the Ld CIT(E) examines the application of the assessee afresh by duly considering all (A.Y 2022-23) Revive Heart Foundation Vs CIT(Exemptions) the evidences relating to activities carried on by the assessee. Since the issue goes to the root of the matter, we feel it appropriate to set aside the orders passed by Ld CIT(E) and direct him to examine the application filed by the assessee afresh by duly considering all the evidences furnished/that may be furnished with regard to the activities carried out by the assessee and pass appropriate order afresh. We order accordingly. The assessee should be provided with adequate opportunity of being heard.
In the result, the appeal filed by the assessee is treated as allowed.
Order pronounced in the open court on 14.12.2023.