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Facts
The assessee, a trust, filed an application for registration under section 80G of the IT Act, but inadvertently selected the wrong clause in Form 10AB. The CIT (Exemption) rejected the application on this technical ground without considering the merits.
Held
The Tribunal held that the error in selecting the wrong clause was a curable defect and an inadvertent typographical mistake. Following precedent and considering recent CBDT circulars, the Tribunal set aside the CIT's order.
Key Issues
Whether an application for registration under section 80G, filed with a clerical error in selecting the clause, can be considered curable and should be decided on merits.
Sections Cited
80G, 10AB
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Income Tax Appellate Tribunal, PUNE BENCH “B”, PUNE
Before: SHRI R. K. PANDA & SHRI VINAY BHAMORE
Swodharak Vidyarthi Sanstha, Vs. CIT, Exemption, Pune. Shindkhed, Malpur, B.O. Karle- 425408. PAN : AAYTS6120K Appellant Respondent Assessee by : Shri Sharad Shah Revenue by : Shri Arvind Desai Date of hearing 13.01.2025 : Date of pronouncement 15.01.2025 : आदेश / ORDER
PER VINAY BHAMORE, JM:
This appeal filed by the assessee is directed against the order dated 16.10.2024 passed by Ld. CIT, Exemption, Pune rejecting the application for approval u/s 80G of the IT Act.
The appellant has raised the following grounds of appeal :- “1. The Ld. CIT-E erred in denying the registration u/s 80G of the IT Act.
2. The Ld. CIT-E ought to have ignored the clerical error while filing the form 10AB (while selecting the relevant clause) and thereby ought to have considered the Application to be valid and granted the registration u/s 80G of the IT Act.
3. The appellant craves its right to add to or alter the Grounds of Appeal at any time before or during the course of hearing of the case.”
3. Facts of the case, in brief, are, that the assessee is a trust filed its application for registration in Form No.10AB under clause (ii)
(5) of section 80G of the IT Act on 22.04.2024. With a view to verify the genuineness of activities of the assessee and fulfilment of conditions laid down in clauses (i) to (v) of section 80G(5) of the IT Act, a notice was issued by Ld. CIT, Exemption, Pune through ITBA portal on 05.06.2024 requesting the assessee to upload certain other information/clarification as mentioned in the notice.
The assessee in response to above notice furnished desired details. After verifying these details, Ld. CIT, Exemption, Pune found certain discrepancies and asked for their clarification. It was specifically asked by the Ld. CIT, Exemption, Pune that your application is filed under clause (ii) of first proviso to section 80G(5) of the IT Act but the same is not applicable to your case and, therefore, your present application is liable to be rejected. The assessee again responded to the above said notice and furnished reply by saying that the application was required to be filed under clause (iii) of first proviso to sub-section (5) of section 80G instead of under clause (ii) of first proviso to sub-section (5) of section 80G of the IT Act. It was also clarified before Ld. CIT, Exemption, Pune that the above error was unintentional and was simply an inadvertent typographical error but Ld. CIT, Exemption, Pune held that the defect in the application is not curable. Hence, the application for registration u/s 80G(5) was rejected. It is this order against which the assessee is in appeal before this Tribunal.
Ld. AR appearing from the side of the assessee submitted before us that the application for registration u/s 80G(5) was rejected merely on a technical ground of mentioning wrong section code and nothing adverse was found by Ld. CIT, Exemption, Pune against the assessee on merits of the case. It was submitted by Ld. Counsel of the assessee that the mistake was a typographical error and inadvertently wrong code was mentioned in the application and there was no deliberate/wilful intention to submit the application under wrong code before Ld. CIT, Exemption, Pune. It was submitted by Ld. Counsel of the assessee that when specific request was made, Ld. CIT, Exemption, Pune ought to have accepted the application as filed under clause (iii) of first proviso to sub-section (5) of section 80G instead of under clause (ii) of first proviso to sub-section (5) of section 80G of the IT Act. In support of above contentions, Ld. AR relied on the order passed by Co- ordinate Bench of this Tribunal in the case of Nitdaa Foundation vs. CIT, 167 taxmann.com 111 (Kolkata – Trib.) wherein under identical situation the Co-ordinate Bench of this Tribunal allowed Ld. CIT, Exemption, Pune to consider the application as filed under desired section of the IT Act and consequently directed to consider the same for grant of approval u/s 80G(5) to the assessee trust in accordance with law. It was also submitted by the counsel of the assessee that in a recent Circular No.7/2024 issued by CBDT on 25.04.2024 in para 4.1 it has been provided that if the application was furnished under the wrong section code than it may furnish a fresh application in Form No.10AB within the extended time provided in the circular. Accordingly, Ld. AR requested before the Bench to set-aside the order passed by Ld. CIT, Exemption, Pune and further requested to direct him to treat the original application as filed under clause (iii) of first proviso to sub-section (5) of section 80G of the IT Act.
Ld. DR appearing from the side of the Revenue supported the orders passed by the sub-ordinate authorities and requested to confirm the same.
We have heard Ld. Counsels from both the sides and perused the material available on record. We find that due to a typographical and inadvertent error occurred in the application for registration u/s 80G(5) of the IT Act and when pointed out by Ld. CIT, Exemption, Pune, the assessee accepted the mistake and (iii) of first proviso to sub-section (5) of section 80G of the IT Act. But Ld. CIT, Exemption, Pune refused to accept the request and consequently rejected the application merely on the basis of technical ground by observing as under :- “6. After verification of the submission made by the assessee it is found that the assessee vide its reply dated 09/10/2024 has admitted the fact that while filing the present application form erroneously wrong section was selected. Further, the assessee has requested to consider the present application. However, the request of the assessee to consider the present application under clause (iii) cannot be accepted since the form filed under one clause cannot be considered to be filed under another clause of section 80G of the I.T. Act, 1961.
7. In view of the above, the application filed by the assessee is treated as non-maintainable and hence, ‘rejected’ for statistical purposes without going into the merits of the case and no adverse inference is drawn against the assessee.”
From a perusal of above order, we find that the application filed by the assessee was rejected on account of a typographical error of wrong mentioning of particular code and no other adverse findings has been given on merit by Ld. CIT, Exemption, Pune. Ld. Counsel relied on the order passed by the Co-ordinate Bench of this Tribunal in the case of Nitdaa Foundation (supra) wherein under identical situation the appeal of the assessee was allowed by observing as under :- “12. Thus, the whole controversy arose due to incorrect mention of the clause under which the application was required to be filed, which (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.”
Respectfully following the above decision and in the light of the circular no.7/2024 issued by CBDT on 25-04-2024, i.e. after the filing of application by the assessee wherein the issue of mentioning wrong section code has been addressed / considered as a common & frequent error and also observing the fact that in the instant case Ld. CIT, Exemption, Pune has not given any adverse finding on merits of the case, against the assessee, we deem it fit to set-aside the order passed by Ld. CIT, Exemption, Pune and remand the matter back to him with a direction to treat the application of the assessee as filed under clause (iii) of first proviso to sub-section (5) of section 80G (or under the desired section code) and consider the same for grant of approval u/s 80G(5) of the IT Act in accordance with law after providing reasonable opportunity of hearing to the assessee. The assessee is also hereby