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Facts
The assessee, a trust with provisional approval under Section 80G(5)(iv), applied for final registration under Section 80G(5)(iii). The CIT(E) rejected this application and cancelled the provisional certificate, asserting that the application was delayed as per a deadline of 30.09.2022.
Held
The Tribunal found that the CIT(E) incorrectly interpreted Section 80G(5), as an application for final registration can only be filed after provisional approval is granted, making the assessee's application timely. Citing a binding precedent, the Tribunal allowed the appeal and remanded the case back to the CIT(E) for a fresh decision on the merits of the final registration application under Section 12A.
Key Issues
Whether the application for final registration under Section 80G(5)(iii) was delayed, and the correct interpretation of the timeline for filing such an application after obtaining provisional approval under Section 80G(5)(iv).
Sections Cited
80G(5), 80G(5)(iv), 80G(5)(iii), 12A, 12A(1)(ac)(iii)
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, “A” BENCH: KOLKATA
Before: Shri Rajesh Kumar&Shri Pradip Kumar Choubey]
ORDER / आदेश Per Pradip Kumar Choubey, JM:
This is the appeal preferred by the assessee against order of Commissioner of Income Tax (Exemption)-Kolkata (hereinafter referred to as the Ld. CIT(E)] dated 12.03.2024. 2. At the outset, the Ld. Counsel of the assessee submitted that there was a delay of 100 days in filing the appeal. Therefore, the Ld. Counsel for the assessee filed a
Brief facts of the case of the assessee is that the assessee being a trust granted approval u/s 80G(5)(iv) of the Act in Form no. 10AC vide order dated 08.02.2022 for a period from 8.2.2022 to assessment year 2024-25. Subsequently an application for approval of the trust u/s 80G(5)(iii) of the Act was filed on 28.09.2023. A notice was issued to the assessee to furnish details regarding activities carried out by the assessee. In response to the same, the assessee has furnished certain details, documents.
The Ld. CIT(E ) has passed an order by holding that the application filed in Form 10AB u/s 80G(5)(iii) of the Act which is not maintainable as the due date to file such an application was on 30.09.2022 but it was filed on 08.09.2023 and accordingly, rejected and also cancelled the provisional certificate issued to the assessee.
Being aggrieved and dissatisfied the assessee preferred the appeal before us.
The Ld. Counsel of the assessee challenges the impugned order thereby submitting that the Ld. CIT(E ) without going over the facts of the assessee as well as law passed this order in violation of the principles of natural justice. The Ld. Counsel of the assessee submits that the Ld. CIT(E ) misconstrued the Act that the application filed by the assessee was on 28.09.2023 though the assessee commenced his activities from 08.05.1987.
In the present case, we have gone through the record of the assessee and find that in the present case, trust was created on 08.05.1987, an application for filing Form 10AB for registration u/s 12A(1)(ac)(iii) was filed by the assessee on 29.01.2022 application in Form no. 10AB for regular registration of approval u/s 12(1)(ac)(iii) was filed by the assessee on 28.09.2023. We have gone through the order passed by the Co- ordinate Bench of the Kolkata in & 731/Kol/2023 for AY 2023-24 and the order passed by the Kolkata Tribunal has been confirmed by the Hon’ble Calcutta High Court. Both the judgment has been placed by the assessee before us. The operative portion of the order passed by the Hon’ble Kolkata Bench is as follows:
Assessment Year: Nil Sikkim Cricket Association “6. We note that the ld. CIT(E) has misconstrued the aforesaid proviso to section 80G(5) of the Act. As per the provision, an application for final registration cannot be filed until and unless an assessee/trust has been given provisional approval u/s 80G(5)(iv) of the Act. The assessee was granted provisional approval on 30.11.2022 only, and within a few days i.e. on 03.12.2022, the assessee applied for final registration u/s Clause (iii) of 1st Proviso to section 80G(5) of the Act. Though the assessee might have commenced its activities prior to grant of provisional registration but that does not mean that the assessee in that event will be precluded from applying for final registration even after the grant of provisional registration. The assessee as per statutory provision could not have directly applied for final registration without grant of provisional registration. The aforesaid proviso, therefore, is to be read as that after the grant of provisional registration, if the assessee has not commenced its activities, he may apply for registration within six months of the commencement of its activities or within the six months prior to the expiry of the period of provisional approval, whichever is earlier. In any case, the assessee is eligible to apply for final registration only after the grant of provisional approval. Therefore, we hold that there is no delay on the part of the assessee in filing application in the prescribed form for grant of final registration under Clause (iii) of 1st Proviso to section 80G(5) of the Act. However, since we have restored the matter to the ld. CIT(E) for decision afresh on merits on the application for final registration u/s 12A of the Act and since the registration u/s 80G(5) is dependent upon the registration u/s 12A of the Act, therefore, the application of the assessee for registration u/s 80G(5) is also restored to the ld. CIT(E) subject to the observations made above.”
In the present case, the provisional approval granted in Form 10AC u/s 80G(5)(iv) on 08.02.2022 to AY 2024-25. The assessee has applied for regular registration in Form no. 10AB on 28.09.2023. The Hon’ble Calcutta High Court in confirming the order of Hon’ble Bench has clearly held which is as follows:
That apart, on facts the learned Tribunal has found that the assessee was granted provisional approval on 30th November, 2022; the assessee applied the final registration under clause (iii) of first proviso to Section 80G(5) of the Act. Therefore, the Tribunal held that the proviso is to be read that after the grant of provisional registration, if the assessee has not commenced its activities, he may apply for registration within six months of the commencement of this activity or within six months prior to the expiry of the period of provisional approval, whichever is earlier. The learned Tribunal rightly noted that in any case the assessee is eligible to apply for final registration only after grant of provisional approval. Thus, considering the factual position, the learned tribunal rightly granted the relief in favour of the respondent/ assessee. Thus, we find no questions of law, much less substantial questions of law, arising for consideration. The appeal is thus dismissed.
Going over the facts of the present case as well as cited decision by the assessee we find that it is squarely covered with cited decision of the assessee. Accordingly, appeal of the assessee is hereby allowed. We restore the matter to the file of Ld. CIT(E) for final registration u/s 12A.
Order is pronounced in the open court on 17th January, 2025
Sd/- Sd/- (Rajesh Kumar/राजेश कुमार) (Pradip Kumar Choubey /�द�प कुमार चौबे) Accountant Member/लेखा सद�य Judicial Member/�या�यक सद�य Dated: 17th January, 2025 SM, Sr. PS Copy of the order forwarded to: 1. Appellant- Sikkim Cricket Association, Hotel Sonam Delek, Gangtok Bazar, S.O, Burtuk, East Sikkim-737101 2. Respondent – CIT(E), Kolkata 3. Ld. Pr. CIT- , Kolkata 4. DR, Kolkata Benches, Kolkata (sent through e-mail)