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Facts
The assessee, a Trust, applied for registration under Section 80G of the Income Tax Act, 1961. They had previously obtained provisional registration and had been operating since 2002. The Trust filed the application in Form 10AB under the wrong clause due to an inadvertent error.
Held
The Tribunal held that the selection of the wrong section code was an inadvertent and curable defect. Following previous decisions, the Tribunal remitted the issue back to the CIT(E) to consider the application under the correct clause and grant approval if the assessee is otherwise eligible.
Key Issues
Whether the rejection of an application for registration under Section 80G due to the selection of a wrong clause in the application form, when the error is inadvertent and curable, is justified?
Sections Cited
80G, 12A, 12A(1)(ac)(i), 80G(5), 80G[5], 80G(5)(vi)
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Income Tax Appellate Tribunal, “C” BENCH, AHMEDABAD
Before: SHRI T.R SENTHIL KUMAR & SHRI MAKRAND VASANT MAHADEOKAR
O R D E R PER T.R. SENTHIL KUMAR, JUDICIAL MEMBER This appeal is filed by the Assessee Trust as against the order dated 29-03-2025 passed by the Commissioner of Income Tax (Exemption), Ahmedabad denying registration under section 80G[5] of the Income Tax Act, 1961 (hereinafter referred to as 'the Act').
Brief facts of the case are that the assessee is a Trust constituted on 01-04-2002 and registered u/s.12A of the Act since then. Under the new provisions of registration, the assessee Trust applied for regular registration under section 12A(1)(ac)(i) of the Act and the same was Modasa Ekda Visha Khadayata Kovadia Kelvani Mandal vs. CIT(E) Asst.Year –N.A - 2– granted by Ld. CIT[E] on 02-10-2021 for the period commencing from Asst. Years 2022-23 to 2026-27. 2.1. The assessee Trust did not have approval u/s.80 G[5] of the Act. It had applied for approval u/s.80 G[5][iv] of the Act in Form 10-A and got provisional registration in Form 10AC for the period from 30-11-2022 to Asst. Year 2025-26. However for regular registration, assessee trust filed application in Form 10AB on 26-09-2024 under clause [ii] of the second proviso to section 80G[5] instead of clause [iii] of that section. The Ld CIT[E] issued a Show Cause Notice dated 25-03-2025 to explain the reason. In reply the assessee trust explained that it is mistake happened inadvertently and through oversight, however it is a curable defect and relied on Kolkata Tribunal decision in the case of Nitdaa Foundation -Vs- CIT [E] reported in [2024] 167 taxmann.com 111. But Ld CIT [E] held that he has no power and facility under the Act to amend the section code wrongly selected by the assessee in Form 10AB and thereby rejected the application for regular registration u/s. 80G[5] of the Act.
Aggrieved against the order of rejection, Assessee Trust is in appeal before us raising the following Grounds of Appeal: On the facts and circumstances of the case, the Learned Commissioner of Income Tax (Exemption) ("Ld. CIT(E)") has erred in rejecting the application filed by the Appellant Trust on the ground that the application filed in Form No. 10AB was filed under clause (n) of the first proviso to section 80G(5) of the Income-tax Act, 1961 (the "Act") and the Appellant Trust does not has a valid approval under clause (ii) of first proviso to section 80G(5) of the Act inasmuch as Modasa Ekda Visha Khadayata Kovadia Kelvani Mandal vs. CIT(E) Asst.Year –N.A - 3– a. The Appellant Trust had filed an application in Form No. 10AB under clause (ii) instead of clause (iii) of the first proviso to section 80G(5) through oversight, and such error is a curable error. b. The Appellant Trust has made an application in time.
We have heard the parties and perused the materials placed on record and Paper Book filed by the assessee. Before we proceed to examine the facts in assessee's case, it is necessary to first look at the relevant provisions of the second proviso to sub-section (5) of section 80G which read as under – Provided that the institution or fund referred to in clause (vi) shall make an application in the prescribed form and manner to the Principal Commissioner or Commissioner, for grant of approval,
(i) where the institution or fund is approved under clause (vi) [as it stood immediately before its amendment by the Taxation and Other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020], within three months from the 1st day of April, 2021;
(ii) where the institution or fund is approved and the period of such approval is due to expire, at least six months prior to expiry of the said period;
(iii) where the institution or fund has been provisionally approved, at least six months prior to expiry of the period of the provisional approval or within six months of commencement of its activities, whichever is earlier; —[or]
(iv) where activities of the institution or fund have (A) not commenced, at least one month prior to the commencement of the previous year relevant to the assessment year from which the said approval is sought;
(B) commenced at any time after the commencement of such activities:] 4.1. As per the above provisions, application to be made to the Principal Commissioner or Commissioner for approval of the Modasa Ekda Visha Khadayata Kovadia Kelvani Mandal vs. CIT(E) Asst.Year –N.A - 4– fund/institution u/s. 80G(5)(vi) of the Act is guided by the second proviso to sub-section (5) of section 80G of the Act. In the present case the assessee had filed its application on 26.09.2024 but its activities had commenced long back from 2002. Therefore, the assessee's case was covered in clause (iii) of proviso to sub-section (5) of section 80G of the Act, as it was granted provisional registration in Form 10AC for the period from 30-11-2022 to A.Y. 2025-26. However, the assessee trust mistakenly applied under clause (ii) of the second proviso to sub-section (5) of section 80G of the Act. The Id. CIT(E) rejected the application on the ground that he has no power and facility under the Act to amend the section code wrongly selected by the assessee in Form 10AB and denied registration.
4.2 This issue of wrong quoting of provisions is no more res- integra since various decisions by the Tribunal namely Aatman Foundation Vs. CIT(E) 174 taxmann.com 1109 (Ahmedabad-Trib.), Gandhinagar Ayyapa Pooja Samiti V/s. CIT(E) 174 taxmann.com 901(Ahmedabad-Trib.) & Rotary Charity Trust vs. CIT(E) 170 taxmann.com 797 (Mumbai – Trib) and more particularly Kolkata Tribunal decision in the case of Nitdaa Foundation -Vs- CIT [E] [cited supra] held that where assessee was an existing trust but it filed an application under clause (iii) of second 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 Modasa Ekda Visha Khadayata Kovadia Kelvani Mandal vs. CIT(E) Asst.Year –N.A - 5– 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.
Following the above decisions, we are of the considered view that there is merit in the claim of the ld. AR that the assessee had selected the wrong section code inadvertently while filing the application for approval in Form 10AB. In view of these discussions and respectfully following the decision of the Kolkata Bench, we remit the issue back to the file of ld. CIT(E), with a direction to consider the application of the assessee as under Clause (iii) to second proviso to section 80G(5) of the Act, and thereafter grant approval accordingly, if assessee is otherwise found eligible.
In the result, the appeal filed by the assessee is allowed for statistical purpose.