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Income Tax Appellate Tribunal, MUMBAI BENCH “B”, MUMBAI
Before: SHRI B R BASKARAN & SHRI RAJ KUMAR CHAUHAN
O R D E R PER RAJ KUMAR CHAUHAN (J.M.): 1. This appeal is filed by the appellant/assessee against the order dated 28.09.2024 of Learned Commissioner of Income Tax (Exemption), Mumbai [hereinafter referred to as the “CIT(E)”], wherein the Ld. Page | 1 Nitcon Social Foundation CIT(E) has rejected the appellant’s application for approval of registration u/s 80G(5) of the Income Tax Act on the ground that assessee was required to file Form 10AB within 6 months from the date of activity i.e. September 2022 and the assessee have filed form 10AB on 30.09.2023, hence the assessee has not fulfilled the stipulated conditions prescribed for filing application for approval in Form 10AB.
2. Aggrieved by the order of Ld. CIT(E), assessee preferred the present appeal before us and has raised the following grounds of appeal:-
1) The Learned Commissioner of Income-tax (Exemptions), Mumbai, has erred in refusing to grant registration of the Appellant Trust u/s. 80G(5)(iii) of the Income-tax Act, 1961 for Final Registration on the ground that assessee is not fulfilling the stipulated conditions prescribed for filing application for approval in Form 10AB, without appreciating the facts that the application was filed within prescribed time period of expiry before 6 months of expiry of Provisional Certificate.
2) The Learned Commissioner of Income-tax (Exemptions), Mumbai, has erred in refusing to grant registration u/s. 80G (5) of the Income- tax Act, 1961 wwithout appreciating the fact that CBDT vide Circular No. 07/2024 had extended the time limit to 30/06/2024 and application for Final Registration was filed on 30/09/2023 i.e. was well within the due date.
Nitcon Social Foundation 3) The Learned Commissioner of Income-tax (Exemptions), Mumbai, has erred in refusing to grant registration u/s. 80G (5) First Proviso to (iv)(B) of the Income-tax Act, 1961 wherein the provision was amended to make such application be filed at any time after the commencement of activities and provisions to file such application within 6 months of commencement of activities were amended by Finance Act, 2024 introduced in Lok Sabha on 01/02/2024.
We have heard Ld AR and DR and examined the record. At the outset, it is pointed out by Ld. AR that there is delay in filing the appeal for 180 days. Ld. AR submitted that the delay in filing the appeal is unintentional and bonafide and prayed that the delay in filing the appeal may kindly be condoned in the interest of natural justice. In support of his argument, Ld. AR brought to our notice the affidavit filed by the assessee which are reproduced below:-
I, MR. SATVINDER SINGH, Managing Director of NITCON SOCIAL FOUNDATION, having Address at 501, 5th Floor, Interface 11, Off. Link Road, Malad (W), Mumbai 400 064, Maharashtra India, have to declare and state as under:
1) I, Mr. Satvinder Singh, am the Managing Director of NITCON SOCIAL FOUNDATION.
Nitcon Social Foundation 2) Assessee Company a Non Profit Organisation and is a Company formed u/s. 8 of the Companies Act and carrying on Activities by the name of "NITCON SOCIAL FOUNDATION".
3) The provisional Application in Form 10A was filed on 03/09/2021 and processed by the CPC, Bangalore and Provisional Certificate in Form No. 10AC dt. 02/10/2021 was issued for the period from 02/10/2021 to A.Y. 2024-2025 u/s. 80G(5) First Proviso, Clause (iv) of the I.T.Act, 1961.
4) Thereafter Assessee Company applied for final renewal of Sec. 80G(5) Certificate and Renewal Application in Form 10AB was e-filed on 30/09/2023 vide e-filing Acknowledgement No. 370026480300923.
5) Order was passed against the Renewal Application filed vide Order Dt. 14/03/2024, DIN No.ITBA/EXM/F/EXM45/2023-24/1062639931(1) in Form 10AD by CIT (Exp), Mumbai, Rejecting the Application filed.
6) Assessee Company was required to file Appeal before Income-tax Appellate Tribunal within 2 months from the date of Order i.e. by 14/05/2024.
7) Assessee Company was not aware of the procedure to address the rejection order u/s. 80G(5) as the company was handling the same by their inhouse staff.
8) Assessee Company was made to understand that condonation of delay in making application u/s. 80G(5) (iii) was required to be made as per amendment made in the Act by Finance Act, 2024.
Nitcon Social Foundation 9) Assessee Company then approached an external Chartered Accountant namely, Thacker Butala Desai, Chartered Accountants at Mumbai to address the rejection of order u/s. 80G(5) of the I.T.Act, 1961.
10) The said CA Firm approached the ITO (HQ) Exemption, Mumbai to address the rejection order and filing of rectification application and condonation of delay.
11) On personal meetings with ITO (HQ), Exemption, Mumbai, it was made to understand that the SOP for condonation of delay is still not prescribed by CBDT and hence Assessee Company has to wait till the same is issued.
12) In the meanwhile Assessee Company was advised by their CA to file an Appeal with ITAT, Mumbai.
13) In view of above circumstances there was delay in filing of Appeal before ITAT.
14) In view of above facts, I have to request your honours to kindly condone delay in filing the Appeal before ITAT from 15/03/2024 till November 2024.
15) On facts and circumstances and having regard to the amendments made in the provisions of Sec. 80G(5) by the Finance Act 2024. This condonation of delay in filing this Appeal be placed before Hon. Members of ITAT, Mumbai and I request your Honours to condone the delay in filing this Appeal against the Order of the Commissioner of Income-tax(Exemptions), Mumbai.
Nitcon Social Foundation 4. The Ld. DR objected to the submission of Ld. AR for condonation of delay and submitted for dismissal of appeal.
We have considered the rival submissions of both parties. We notice that nothing contrary has been brought on record by the respondents which may contradict and falsify facts alleged by the appellant in support of seeking condonation of delay. The Hon'ble Supreme Court in the case of Collector, Land Acquisition Vs. MST. Katiji&Ors., [1987] 167 ITR 471 (SC),dated 19.02.1987, was pleased to hold regarding the condonation of delay as under:
“The Legislature has conferred the power to condone delay by enacting section 51 of the Limitation Act of 1963 in order to enable the courts to do substantial justice to parties by disposing of matters on de merits”. The expression “sufficient cause” employed by the Legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose of the existence of the institution of courts. It is common knowledge that this court has been making of justifiably liberal approach in matters instituted in this court. But the message does not appear to have percolated down to all the other courts in the hierarchy. And such a liberal approach is adopted on principle as it is realized that:
1. 1. Ordinarily, a litigant does not stand to benefit by lodging an appeal late.
2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this, when delay is condoned, the highest that Nitcon Social Foundation can happen is that a cause would be decided on merits after hearing the parties.”
In the facts and circumstances as discussed above and because of the law laid down by the Hon’ble Supreme Court in Collector, Land Acquisition Vs. MST. Katiji & Ors (supra), we are of the considered opinion that there was sufficient cause for condoning the delay for filing this appeal. Therefore, respectfully following the above decision and for the sake of overall justice we condone the delay and admit the appeal for adjudication.
On merit, Ld. AR argued that vide circular No. 7/2024 dated 25th April 2024, the CBDT has extended the due date for filing of Form 10AB of Income Tax Act and the same is reproduced below:-
Sub: Extension of due date for filing of Form No. 10A/10AB under the Income-tax Act, 1961-reg.
On consideration of difficulties reported by the taxpayers and other stakeholders in the electronic filing of Form No. 10A/10AB, the Central Board of Direct Taxes (the Board) in exercise of its powers under section 119 of the Income-tax Act, 1961 (the Act) extended the due date for filing Form No. 10A to 31.08.2021 by Circular No. 12/2021 dated 25.06.2021, to 31.03.2022 by Circular No. 16/2021 dated 29.08.2021, to 25.11.2022 by Circular No. 22/2022 dated 01.11.2022 and further to 30.09.2023 by Circular No. 6/2023 dated 24.05.2023, and extended the due date for filing Nitcon Social Foundation Form No. 10AB to 30.09.2022 by Circular No. 8/2022 dated 31.03.2022 and further to 30.09.2023 by Circular No. 6/2023 dated 24.05.2023.
Representations have been received in the Board with a request to condone the delay in filing Form No. 10A/10AB, as the same could not be filed in such cases within the last extended date, i.e., 30.09.2023.
3. On consideration of the matter, with a view to avoid and mitigate genuine hardship in such cases, the Board, in exercise of the powers conferred under section 119 of the Act, hereby extends the due date of making an application/intimation electronically in- (i) Form No. 10A, in case of an application under clause (i) of the first proviso to clause (23C) of section 10 or under sub-clause (i) of clause (ac) of sub-section (1) of section 12A or under clause (i) of the first proviso to sub- section (5) of section 80G or in case of an intimation under fifth proviso of sub-section (1) of section 35 of the Act, till 30.06.2024; (ii) Form No. 10AB, in case of an application under clause (iii) of the first proviso to clause (23C) of section 10 or under sub-clause (iii) of clause (ac) of sub-section (1) of section 12A or under clause (iii) of the first proviso to sub-section (5) of section 80G of the Act, till 30.06.2024.
It may be also noted that extension of due date as mentioned in paragraph 3(ii) shall also apply in case of all pending applications under clause (iii) of the first proviso to clause (23C) of section 10 or sub-clause (iii) of clause (ac) of sub-section (1) of section 12A or under clause (iii) of the first proviso to sub-section (5) of section 80G of the Act, as the case may be. Hence, in cases where any trust, institution or fund has already made an application in Form No.10AB under the said provisions on or before the issuance of this Circular, and where the Principal Commissioner or Commissioner has not passed an order before the issuance of this Circular, Page | 8 Nitcon Social Foundation the pending application in Form No. 10AB may be treated as a valid application.
4.1 Further, in cases where any trust, institution or fund has already made an application in Form No. 10AB, and where the Principal Commissioner or Commissioner has passed an order rejecting such application, on or before the issuance of this Circular, solely on account of the fact that the application was furnished after the due date or that the application has been furnished under the wrong section code, it may furnish a fresh application in Form No. 10AB within the extended time provided in paragraph 3(ii) i.e. 30.06.2024.
5. It is also clarified that if any existing trust, institution or fund who had failed to file Form No. 10A for AY 2022-23 within the due date as extended by the CBDT circular no. 6/2023 dated 24.05.2023 and subsequently, applied for provisional registration as a new trust, institution or fund and has received Form No. 10AC, it can avail the option to surrender the said Form No. 10AC and apply for registration for AY 2022-23 as an existing trust, institution or fund in Form No. 10A within the extended time provided in paragraph 3(i) i.e. 30.06.2024.
It is therefore argued by Ld. AR that the CBDT vide Circular No. 6/2023 dated 24.05.2023 has extended the due date for filing Form 10AB till 30.09.2023 and submitted that assessee is eligible for grant of approval u/s 80G of the Act. Ld. AR prayed that the matter is restored to the file of Ld. CIT(E) to decide the matter afresh.
Nitcon Social Foundation 9. On the other hand, Ld. DR supported the impugned order of Ld. CIT(E) and stating that the appeal is liable to be dismissed.
We have considered the rival submissions of both the parties. It is evident that CBDT vide Circular No. 6/2023 dated 24.05.2023 has extended the due date for filing Form 10AB till 30.09.2023 and the further extension for filing 10AB has been extended vide Circular 7 of 2024 dated 25th April 2024 wherein the Form 10AB permitted to be filed till 30.06.2024. The assessee in this case has filed Form 10AB on 30.09.2023 i.e. within the permitted period by the CBDT. The assessee is therefore eligible for considering its Form 10AB for grant of approval u/s 80G of the Act. Therefore, impugned order passed by the Ld. CIT(E) is not legally sustainable in the eyes of law.
For these reasons, we set aside the impugned order passed by Ld. CIT(E) and restore the matter to the file of Ld. CIT(E) for fresh adjudication of the case of assessee for grant of approval u/s 80G(5)(iii) of the Act after giving proper opportunity of hearing to the assessee. The appellant/assessee shall present its case before the Ld. CIT(E) within 90 days of this order. The impugned order is accordingly set aside and appeal filed by the assessee is allowed in above terms. Page | 10 Nitcon Social Foundation 12. In the result, the appeal filed by the assessee is allowed for statistical purposes.
Order pronounced in the open court on 26.03.2025.