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Facts
The assessee filed an application for approval under Section 80G of the Income Tax Act, 1961, which was rejected by the CIT(E) for being filed beyond the prescribed time limit. The assessee had a delay of 291 days and had also incorrectly mentioned the applicable clause for filing the application.
Held
The Tribunal held that the CIT(E) erred in rejecting the application solely on technical grounds, specifically the incorrect mention of the clause and the delay. The Tribunal noted that similar issues have been treated as technical errors by other benches and restored the matter to the CIT(E) for fresh consideration on merits.
Key Issues
Whether the rejection of an application for approval under Section 80G, based on a technical error in mentioning the clause or a delay, is justified when the assessee is an existing trust and has a valid registration.
Sections Cited
80G, 10(23C), 12A
AI-generated summary — verify with the full judgment below
Income Tax Appellate Tribunal, PUNE BENCH “A”, PUNE
This appeal filed by the assessee is directed against the order dated 24.03.2024 of the Ld. CIT (Exemption), Pune rejecting the application for approval u/s 80G of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’).
There is a delay of 291 days in filing of this appeal before the Tribunal for which the assessee has filed a condonation application along with an affidavit explaining the reasons for such delay, according to which the assessee was seeking alternate remedy before the tax authorities and only when the same was rejected, the assessee was advised to file the appeal before the Tribunal. After considering the contents of the condonation application filed along with the affidavit and after hearing the Ld. DR, the delay in filing of the appeal is condoned and the appeal is admitted for adjudication.
Facts of the case in brief, are that the assessee filed an application in Form No.10AB on 28.09.2023 for approval under clause (iii) of first proviso to sub section (5) of section 80G of the Act. With a view to verify the genuineness of the activities of the assessee and fulfillment of conditions laid down in clause (i) to (v) of section 80G(5) of the Act, a notice was issued through ITBA portal on 21.11.2023 requesting the assessee to upload certain information / clarification. The assessee in response to the same filed the requisite details. After going through the various submissions filed by the assessee, the Ld. CIT(E) again called for certain more details. The Ld. CIT(E) noted that the assessee had commenced its activities before the date of provisional approval. Since the activities of the assessee were already commenced before the provisional approval, he was of the opinion that the assessee was required to file the present application within 6 months from the date of provisional approval i.e. on or before 11.11.2022. However, the assessee has filed the application on 28.09.2023 i.e. beyond the time limit allowed under clause (iii) of first proviso to section 80G(5) of the Act. He therefore, asked the assessee to show cause as to why the application should not be rejected and why the provisional approval granted earlier should not be cancelled. Rejecting the various explanations given by the assessee, the Ld. CIT(E) rejected the application for grant of approval u/s 80G of the Act and also cancelled the provisional registration granted earlier by observing as under:
“11. The assessee in its reply through e-portal contended that that in view of circular (copy of which is attached hereto and marked as "Annexure A-4") the exemption under Section 80 G granted to the trust is perpetual. The contention of the assessee is not acceptable. The assessee has referred to the CBDT Circular 7 of 2010 dt. 27/10/2010 The assessee has failed to appreciate that the provisions relating to registration and approval u/s 10(23C), 12A and 80G(5) have undergone changes post 31/03/2021. Accordingly, the issue is decided as under: 12. From the provisions of clause (iii) of first proviso to section 80G(5) of the Act, it is evident that the time limits prescribed therein are mandatory and the Commissioner of Income Tax has no power to condone the delay in filing application in Form No.10AB. The said legal position further gets fortified by the fact that the CBDT on multiple occasions had extended the time limit in filing the application in Form No. 10A and/or From No 10AB as under: (a) The CBDT vide Circular No. 12 of 2021 dated 25/06/2021 in exercise of its power under section 119 of the Act. provided relaxation for various compliances, including making application under section 10(230), 80G(5)(vi), 35(1)(ii)/(iia)/(iii) and 80G of the Act in Form No.10A/Form No.10AB, for approval / provisional approval /intimation / approval / provisional approval of Trusts / Institutions /Research Associations etc., which were required to be made on or before 30th June 2021 was allowed to be made / filed on or before 31st August 2021. (b) Thereafter, the CBDT vide Circular No.16 of 2021 dated 29/08/2021, further extended the date of filing of Form No. 10A under section 10(23C), 12A, 35(1)(ii) / (iia) / (iii) or 80G, which was required to be filed on or before 30th June 2021 upto 31st March 2022 and similarly for application for approval or approval under section 10(23C), 12A or 80G of the Act in Form No.10AB, for which the last date for filing falls on or before 28th February, 2022 up to 31st March, 2022. (c) Thereafter, once again the CBDT vide Circular No.8/2022 dated 31/03/2022 on consideration of difficulties in electronic filing of Form No. 10AB as stipulated in Rule 2C or 11AA or 17A of the Income Tax Rules, 1962, stipulated that "The application for approval or approval under section 10(23C), 12A or 80G of the Act, in Form No.10AB, for which the last date for filing falls on or before 29th September, may be filed on or before 30th September, 2022. (d) Thereafter, once again the CBDT vide Circular No.6/2023 dated 24/05/2023, further extended the date of filing of 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 of the Act, till 30/09/2023 where the due date for making such application has expired prior to such date; and 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) section 12A of the Act, till 30/09/2023 where the due date for making such application has expired prior to such date. 12.1 It is evident from the above that the time limit prescribed under clause (iii) of first proviso to section 80G(5) of the Act for filing Form No.10A and Form No. 10AB, as the case may be, is mandatory and therefore, after considering the hardship to the assessee the CBDT extended the said time limit on multiple occasions, for filing Form No. 10A and Form No. 10AB, under section 119 of the Act, vide above referred Circulars. As per above referred CBDT Circular No.8/2022, the applicant /assessee, whose last date for filing Form No.10AB for approval /approval under section 10(23C) or 12A or 80G(5) was falling on or before 29th September, 2022, was extended upto 30th September, 2022. Thereafter, there was no further extension for delay in filing Form No. 10AB was granted by the CBDT, till a new Circular dated 24/05/2023 is issued, and the same was evident from CBDT Circular No.22 of 2022 dated 01/11/2022, through which the CBDT extended the time limit for filing application in Form No.10A under various sections made therein, upto 25/11/2022, and in said Circular No.22 of 2022, no further extension of time was granted for filing Form No. 10AB. 12.2 It is also evident from the Circular No.6/2023, through which the CBDT has extended the time limit for filing of application in form No.10A under various section, upto 30/09/2023 and also extended the time limit for filing of application in form No. 10AB, only in case of application under clause (iii) of first proviso to clause (23C) of section 10 and under sub-clause (iii) of clause (ac) of sub-section (1) of section 12A of the Act, up to 30/09/2023. Thus, no further extension of time has been granted for application under clause (iii) of first proviso to sub-section (5) of section 80G of the Act vide the said Circular dated 24/05/2023. 13 From the above, it is evident that the present application filed in Form No. 10AB under clause (iii) of first proviso to section 80G(5) of the Act, has not been filed within the time limit prescribed therein and therefore the same is liable to be rejected, without going into the merits. Reliance is also placed on the decision of the Hon'ble Kolkata Tribunal in the case of Bishnupur Public Education Institute, reported in 139 taxmann.com 121, wherein the Hon'ble Tribunal while adjudicating the issue of similar provisions of due date under section 10(23C) of the Act, after placing reliance on various decisions of the Hon'ble Supreme Court and that of Hon'ble High Court has held as under: "5. The Hon'ble Madras High Court in the case of All Angels Educational Society (supra) while considering the issue whether the ld. CIT (Exemption) has power to condone the delay in filing application for grant of approval under section 10(23C) or not, has considered the judgments of Hon'ble Supreme Court in the case of State of U.P v. Harish Chandra AIR 1996 SC 2173 as well as Union of India v. Kirloskar Pneumatic Co. Ltd. 1996 taxmann.com 575 (SC) and held that where there is no provision to empower the statutory authority to condone the delay, than the authority cannot condoned. The finding of the Hon'ble Court in Paragraphs no. 15 & 16 worth to note, which read as under :-
However, considering the legal position that there is no power to condone the delay in filing an application under section 10(23C) of the Act, this Court is not inclined to exercise its extraordinary jurisdiction to condone the delay. However, this Court is inclined to give appropriate direction to the respondent to consider the petitioner's application as an application for the subsequent assessment year, namely, 2013-2014 in accordance with law. Such direction is issued considering the peculiar facts and circumstances of the case and that the petitioner could not have made an application for the subsequent assessment year 2013-2014, since their application for assessment year 2012-2013 was still pending consideration and the impugned order came to be passed only on 13-11- 2013. The respondent is at liberty to consider the amended objectives of the petitioner Trust.
Accordingly, the writ petition is partly allowed and the finding rendered by the respondent that the petitioner's application cannot be considered as the same is time barred is affirmed and the finding with regard to objectives of the Society by respondent holding that the Society cannot be said to be solely for education purpose is set aside. Consequently, the matter is remanded back to the respondent for fresh consideration and the petitioner's application is directed to be considered for the assessment year 2013-2014 in accordance with law and while doing so, may consider the amendments made to the objectives of the petitioner Trust. No Costs. M.P. No. 1 of 2014 is closed." 6. Similar is the view of Hon'ble Andhra Pradesh High Court propounded in Aurora Educational Society case (supra). The Hon'ble Orissa High Court has also considered this aspect in the case of Roland Educational & Charitable Trust (supra). The concluding paragraph of the judgment is worth to note in this aspect, which read as under- "Be that as it may, we are here concerned whether in the absence of any statutory provision to condone the delay in presenting the application under section 10(23C)(vi), the Chief Commissioner of Income-tax can exercise any such power". 7. The adjudicating authorities under the Income-tax Act are quasi judicial authorities. They can grant approval with retrospective effect if such mechanism is provided in the Act. There is no such provision nor there is any power to condone the delay after considering the reasonable reasons. A reasonable cause can be taken into cognizance for condoning the delay, if such provision is provided in the Act while considering any issue for adjudication. Therefore, considering the above proposition, we are of the view that Id. CIT (Exemption) has rightly rejected the application of the assessee for grant of approval under section 10(23C)(vi) of the Income-tax Act. All these three appeals are rejected. 14. In view of the above, the present application filed in Form No. 10AB under clause (iii) of first proviso to section 80G(5) of the Act is liable to be rejected also on the ground that the assessee has not filed the present application within the time limit allowed under clause (iii) of first proviso to section 80G(5) of the Income Tax Act, 1961. 15. In view of the above, the application filed by the assessee is hereby rejected and the provisional approval granted on 12/05/2022 under clause (iv) for first proviso to section 80G(5) of the Income Tax Act, 1961 is hereby cancelled.”
Aggrieved with such order of Ld. CIT(E), the assessee is in appeal before the Tribunal by raising the following grounds:
1. Final registration ought to have been granted since the Trust was duly registered under the old procedure of registration 1.1 In the facts and circumstances of the case and in law, the learned CIT(E) erred in not granting final registration under clause (i) of the proviso to Section 80G(5) of the Act, despite the Appellant holding a valid registration granted vide Order dated 15/12/2008 under the erstwhile procedure, contrary to the binding CBDT Circular No. 14(XL-35) dated 11/04/1955.
2. Ground 2: Violation of principle of natural justice by not affording adequate opportunity 2.1 In the facts and circumstances of the case and in law, the learned CIT(E) erred in rejecting the application for final registration under Section 80G of the Act without providing sufficient opportunity to address the alleged deficiencies, despite the Appellant submitting timely replies to notices. 2.2 The learned CIT(E) grossly erred in presuming that the Appellant had nothing further to submit despite the requisite submission being filed on the scheduled date of 07/03/2024, well before the time barring date of 31/03/2024. The CIT(E) ought to have provided an additional opportunity of filing submission and hearing before passing the rejection order. 3.1 In the facts and circumstances of the case and in law, the learned CIT(E) erred in rejecting the application for registration without appreciating the evidence and submissions made by the Appellant which establishes the genuineness of its charitable activities and compliance with statutory requirements. 3.2. In doing so, the learned CIT(E) erred in (a) Not appreciating that the Appellant was holding a valid registration under the provisions of section 12A(11ac)(i) of the Act as well as under the provisions of section 80G(5)(vi) of the At (under the old registration procedure)
(b) Not appreciating that the Appellant was also holding an approval of Ministry of Home Affair under the provisions of Foreign Contribution Regulation Act, 2010 vide Order dated 02/06/2014 (c) Not appreciating that the note on activities was not an extract from the Trust Deed's Objects but a detailed account of various initiatives undertaken by the Appellant, interalia, bring out the rehabilitation of several children. (d) Not appreciating that the Trust Deed clearly specifies in its preamble that it is as an irrevocable trust. The Appellant craves leave to add, alter, vary, omit, substitute or amend the above grounds of appeal at any time before or at, the time of hearing of the appeal, so as to enable the Hon'ble Tribunal decide this appeal according to law.
The Ld. Counsel for the assessee at the outset submitted that the trust deed was created on 31.03.2008 and was registered under the Bombay Trust Act on 26.05.2008. The assessee obtained its registration u/s 12A of the Act on 15.12.2008 and also got the approval u/s 80G of the Act on the same day. The assessee was also granted final registration in Form 10AC u/s 12A(1)(ac)(i) of the Act on 21.03.2022. The assessee applied for provisional registration in Form No.10AC under clause (iv) of first proviso to section 80G(5) of the Act along with old registration certificates under sections 12A and 80G of the Act as attachments on 28.09.2023. The Ld. CIT(E) asked for further details to process for final registration u/s 80G of the Act on 22.11.2023. Rejecting the various explanations given by the assessee the Ld. CIT(E) rejected the approval u/s 80G of the Act. The Ld. Counsel for the assessee referring to the decision of the Kolkata Bench of the Tribunal in the case of Nitdaa Foundation vs. CIT(E) (2024) 167 taxmann.com 111 (Kolkata) submitted that the Tribunal in the said decision has held that where assessee was an existing trust but it filed an application under clause (iii) of first proviso to section 80G(5) in Form No. 10AB on 24-5-2023 for approval and Commissioner held that application was not maintainable as it was not filed within stipulated period, since whole controversy arose due to incorrect mention of clause in Form No.10AB, which was mentioned as clause (iii), whereas same should have been mentioned as clause (i), Commissioner was to be directed to consider application as filed under clause (i) for grant of approval. He accordingly submitted that this issue may be restored to the file of the Ld. CIT(E) with a direction to consider the mistake done by the assessee in mentioning wrong clause and consider the application filed under clause (i) of the said provisions.
6. The Ld. DR on the other hand has no objection for the request of the Ld. Counsel for the assessee.
After hearing both sides, we find an identical issue had come up before the Kolkata Bench of the Tribunal in the case of Nitdaa Foundation vs. CIT(E) (supra) where the Tribunal after considering the various decisions has held as under: “11. As is noted above, the assessee was an existing trust and had been granted approval under section 12AA of the Act as well as under section 80G of the Act earlier but instead of applying under clause (i) of the proviso to section 80G, it applied under clause (iii) as a new trust. If it had applied under clause (i), there was no need of issuing any provisional certificate and as per the second proviso to section 80G, the Principal Commissioner or Commissioner would have passed an order in writing granting it approval for a period of five years and there was no requirement for seeking any provisional approval which is required only for a new trust. Similar issue also came up for consideration in the case of Loyola Charitable Society Vs. CIT (Exemption), Kolkata, (ITA No. 580/KOL/2024, dated 19.06.2024) in which it was held as under: “5. Ground No. 1 relates to the rejection of the application of the assessee. It applied for approval u/s. 80G(5)(iv) whereas being an old trust and apparently granted approval earlier, the same should have been applied in clause (i) of the proviso to sub-section 5 of section 80G if the approval was granted earlier. The assessee applied for registration u/s. 80G(5)(iv) i.e. as a new trust erroneously and was granted provisional approval from 02.09.2022 to 2025-26 in Form No. 10AC. Subsequently, it applied for approval under clause (iii) of first proviso to subsection (5) of section 80G of the Act on Form No. 10AB on 30.09.2023. Since it was an existing assessee and was granted approval from FY 2012-13 u/s. 12AA post the amendment in the provisions of section 80G(5), it was required to apply for registration under the amended provision under clause (i) of the proviso to section 80G(5) while it incorrectly applied under clause (iv), which is for the case of a new trust. Both the applications u/s. 80G(5)(iv) as well as 80G(5)(iii) were filed within time. The provisional approval clause applies to new applicant only whereas in the case of the assessee being an existing assessee, clause (i) of the proviso to section 80G(5) was applicable, therefore, clause (iv) was not applicable but clause (i) was applicable. Further, this fact also escaped the attention of the Ld. CIT(E). Similar issue had come up before the Coordinate Bench in Friends of Kolkata and vide order dated 01.04.2024, the Tribunal “B” Bench has held as under: “5. As far as the details of application and their dates, there is not much dispute. The ld. CIT(Exemption) was of the view that activity of the assessee-Trust commenced in 2012 and, therefore, for grant of a regular registration, it ought to have applied within six months from the appointed date, i.e. 1st of April, 2021 extended upto 30th September, 2023. The assessee did not file such application. He further observed that the assessee has applied for grant of a provisional registration under subclause (iv) and immediately thereafter applied for grant of a regular registration under sub- clause (iii), which is meant for those Trust or Society, which came after April, 2021. In view of the above, he was of the opinion that being an old Trust, the assessee has applied for a provisional registration and thereafter regular registration. But such application is not in consonance with the procedure laid down under sub-clause (iii) as well as sub-clause (iv) and, therefore, on account of this technical aspect, he rejected the application of the assessee.
6. With the assistance of ld. Representatives, we have gone through the record carefully. As observed earlier, had application was moved under sub-clause (i) instead of applying for provisional registration, then no dispute would have come, because the assessee- Trust is an existing Trust and the time limit to move an application under sub-clause (i) has been extended upto 30th September, 2023. Its application alleged to be moved under sub-clause (iii) would have been under clause (i), then it would be construed as within time limit? 7. We are of the view that it is only a technical error. The ld. CIT(Exemption) ought to have looked into the matter on this aspect and call for a clarification from the assessee. Once he was seized of the matter and aware that the Trust was enjoying registration under section 80G under old regime, it fulfilled all other conditions, then on account of wrong mention of section (iii) instead of (i), in its application should have not been given much weightage for rejecting the application on technical grounds. Therefore, we set aside the impugned order and relegate this issue to the file of ld. CIT(Exemption) with a direction that application of the assessee be treated under clause (i) and it be decided on merit.”
Further, in another case in & 50/Kol/2024 Shree Ram Chandra Saraf Seva Nidhi dated 14.03.2024 decided by the Tribunal “C” Bench, Kolkata the Bench vide para 3 has held as under: “3. Considering the overall facts and circumstances of the case and also as observed by us in many cases that due to complexity of the newly inserted provisions even the ld. CIT(E)s also could not properly interpret the same, therefore, the assessee cannot be punished on this technical ground. The impugned orders of the CIT(E) are, therefore, set aside and it is directed that the ld. CIT(E) will consider the applications filed by the assessee in Form 10AB as being filed in the relevant prescribed form which is required for making applications for the institutions who are already registered as on 0l.04.2021 and the applications moved by the assessee will be treated as being moved u/s. 12A(ac)(i) of the Act and under Clause (i) to the First Proviso to section 80G(5) of the Act respectively and the CIT(E) will grant the provisional registration accordingly. The Ld. CIT(E) will decide both the applications of the assessee within two months of the receipt of copy of this order.”
Thus, the whole controversy arose due to incorrect mention of the clause under which the application was required to be filed, which was mentioned as clause (iv) of the first proviso to sub-section (5) of section 80G in column 6 of Form No. 10AC whereas the same should have been mentioned as clause (i) of the first proviso to sub-section (5) of section 80G and the Ld. AR also admitted this fact in the course of the hearing. Since, Form No. 10AC was filed in time, the error on the part of the assessee for mentioning the wrong clause is deemed to be a curable defect and the application on Form No. 10AC is deemed to be filed under clause (i) of the first proviso to sub-section (5) of section 80G. The order of the Ld. CIT(Exemption) is hereby set aside and he is required to consider the application as filed under clause (i) of the first proviso to section 80G(5) of the Act and consider the same for grant of approval under section 80G(5) to the trust in accordance with law within a period of 2 months from the date of receipt of this order. The assessee shall file all necessary evidence before him.
In the result, the appeal of the assessee is allowed for statistical purposes.”
Since in the instant case the assessee is an existing trust had the approval u/s 12A as well as 80G of the Act and it applied for registration under clause (iii) as a new trust instead of applying under clause (i) of first proviso to section 80G(5), therefore, following the decision of the Kolkata Bench of the Tribunal in the case of Nitdaa Foundation vs. CIT(E) (supra), we deem it proper to restore the issue to the file of the Ld. CIT(E) with a direction to consider the application filed under clause (i) of first proviso to section 80G(5) of the Act and consider the same for grant of approval u/s 80G(5) of the Act. The Ld. CIT(E) shall decide the issue as per fact and law after giving due opportunity of being heard to the assessee. We hold and direct accordingly. The grounds raised by the assessee are accordingly allowed for statistical purposes.
In the result, the appeal filed by the assessee is allowed for statistical purposes.
Order pronounced in the open Court on 29th April, 2025.