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Facts
The assessee trust filed an application for registration under Section 80G(5) of the Income-tax Act, 1961. The Ld. CIT(E) rejected the application for three reasons: non-compliance with a show-cause notice, filing the application beyond the prescribed time limit, and rejection of its application for registration under Section 12AB of the Act.
Held
The Tribunal held that the time limits for filing applications under Section 80G(5) are mandatory. However, a recent CBDT circular extended the due date for filing Form No. 10AB to 30.06.2024, making the assessee's application within the extended time limit. Regarding the rejection of Section 12AB registration, the Tribunal decided to restore the matter to the Ld. CIT(E) for fresh consideration.
Key Issues
Whether the application for registration under Section 80G(5) was filed within the prescribed time limit and whether the rejection of Section 12AB registration impacts the 80G(5) application.
Sections Cited
80G(5), 12AB, 12A(1)(ac)(iii)
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Income Tax Appellate Tribunal, MUMBAI BENCH “F” MUMBAI
Before: SHRI OM PRAKASH KANT & MS. KAVITHA RAJAGOPAL
PER OM PRAKASH KANT, AM
This appeal by the assessee is directed against order dated 11.03.2024 passed by the Ld. Commissioner of Income-tax (Exemption), Pune [in short ‘the Ld. CIT(E)’] , wherein he rejected the application of assessee trust seeking registration u/s 80G(5) of
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the Income-tax Act, 1961 (in short ‘the Act’). The grounds raised by tax Act, 1961 (in short ‘the Act’). The grounds raised by tax Act, 1961 (in short ‘the Act’). The grounds raised by the assessee are reproduced as under: the assessee are reproduced as under:
In the facts and circumstances of the case, the Ld. CIT (E) has erred In the facts and circumstances of the case, the Ld. CIT (E) has erred In the facts and circumstances of the case, the Ld. CIT (E) has erred in rejecting the application of the Appellant Trust u/s 80G(S)(iii) in rejecting the application of the Appellant Trust u/s 80G(S)(iii) in rejecting the application of the Appellant Trust u/s 80G(S)(iii) stating that stating that the Application for grant of Registration is not filed within the Application for grant of Registration is not filed within the time limit. the time limit. 2. In the facts and circumstances of the case, the Ld. CIT(E) has erred in In the facts and circumstances of the case, the Ld. CIT(E) has erred in In the facts and circumstances of the case, the Ld. CIT(E) has erred in cancelling the provisional registration granted to the Appellant Trust cancelling the provisional registration granted to the Appellant Trust cancelling the provisional registration granted to the Appellant Trust u/s 80G(5)(iv) dated 23/03/2022 u/s 80G(5)(iv) dated 23/03/2022 2. Briefly stated, facts of the case are that the assessee filed an Briefly stated, facts of the case are that the assessee filed an Briefly stated, facts of the case are that the assessee filed an application on 28.09.2023 in Form No. 10AB i.e. the prescribed application on 28.09.2023 in Form No. 10AB i.e. the application on 28.09.2023 in Form No. 10AB i.e. the form , under clause (iii) of first proviso to sub under clause (iii) of first proviso to sub-section (5) of section section (5) of section 80G of the Act. The Ld. CIT(E) rejected the said application of the 80G of the Act. The Ld. CIT(E) rejected the said applic 80G of the Act. The Ld. CIT(E) rejected the said applic assessee for the three reasons. Firstly, the assessee did not comply assessee for the three reasons. , the assessee did not comply to the show cause notice to the show cause notice issued by the Ld. CIT(E) , wherein he issued by the Ld. CIT(E) , wherein he pointed out various, pointed out various, despite providing sufficient opportunity. despite providing sufficient opportunity. Secondly, the the application was filed beyond t , the the application was filed beyond the time limit , the the application was filed beyond t allowed under clause (iii) of first proviso to section 80G(5) of the Act. allowed under clause (iii) of first proviso to section 80G(5) of the Act. allowed under clause (iii) of first proviso to section 80G(5) of the Act. Thirdly, the application , the application for registration u/s 12AB filed under registration u/s 12AB filed under proviso to section 12A(1)(ac)(iii) of the Act was also rejected vide proviso to section 12A(1)(ac)(iii) of the Act was also rejected vide proviso to section 12A(1)(ac)(iii) of the Act was also rejected vide order dated 11.03.2024. order dated 11.03.2024.
We have heard rival submissions of the parties and perused heard rival submissions of the parties and perused heard rival submissions of the parties and perused the relevant material on record. As far as non the relevant material on record. As far as non-compliance of the compliance of the show cause notice is concerned, the Ld. counsel for the assessee show cause notice is concerned, the Ld. counsel for the assessee show cause notice is concerned, the Ld. counsel for the assessee submitted before us before us that said show cause notice that said show cause notice was issued through e-portal/e-mail mail, which was duly responded and the responded and the assessee requested for adjournment. The Ld. counsel for the assessee requested for adjournment. The Ld. counsel for the assessee requested for adjournment. The Ld. counsel for the
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assessee referred to Paper Book page 53 which is copy of the assessee referred to Paper Book page 53 which is copy of the assessee referred to Paper Book page 53 which is copy of the adjournment request filed before the Ld. CIT(E). The Ld. counsel adjournment request filed before the Ld. CIT(E). The Ld. counsel adjournment request filed before the Ld. CIT(E). The Ld. counsel submitted that the assessee submitted that the assessee had already complied most of the already complied most of the submissions in its reply dated filed on 26.12.2023 and adjournment submissions in its reply dated filed on 26.12.2023 and adjournment submissions in its reply dated filed on 26.12.2023 and adjournment for show cause notice dated 04. for show cause notice dated 04.03.2024 was sought for the bona 03.2024 was sought for the bonafide reasons. The Ld. CIT(E) again issued another notice 08.03.2024 i.e. The Ld. CIT(E) again issued another notice 08.03.2024 i.e. The Ld. CIT(E) again issued another notice 08.03.2024 i.e. in short period of fo in short period of four days, for which the assessee again sought he assessee again sought adjournment. The Ld. counsel submitted that in the circumstances adjournment. The Ld. counsel submitted that in the circumstances adjournment. The Ld. counsel submitted that in the circumstances there is bonafide reason for non there is bonafide reason for non-compliance. In our opinion, there compliance. In our opinion, there is a sufficient and reasonable cause on the part of the assessee for is a sufficient and reasonable cause on the part of the assessee for is a sufficient and reasonable cause on the part of the assessee for non-compliance.
3.1 As far as finding of the Ld. CIT(E) that the application filed by As far as finding of the Ld. CIT(E) that the application filed by As far as finding of the Ld. CIT(E) that the application filed by the assessee is beyond the period permitted under clause (iii) of first the assessee is beyond the period permitted under clause the assessee is beyond the period permitted under clause proviso to section 80G(5) of the Act, is concerned , same o to section 80G(5) of the Act, is concerned , same o to section 80G(5) of the Act, is concerned , same is reproduced as under: reproduced as under:
“5. Without prejudice to 5. Without prejudice to the above, as per the provisions of clause (iii) of the above, as per the provisions of clause (iii) of first proviso to section 80G(5) of the Act, where a trust or institution has first proviso to section 80G(5) of the Act, where a trust or institution has first proviso to section 80G(5) of the Act, where a trust or institution has been provisionally approved under section 80G(5)(vi) of the Act, the been provisionally approved under section 80G(5)(vi) of the Act, the been provisionally approved under section 80G(5)(vi) of the Act, the application for regular approval under section 80G(5)(vi) application for regular approval under section 80G(5)(vi) is required to is required to be filed, at least six months prior to expiry of period of the provisional be filed, at least six months prior to expiry of period of the provisional be filed, at least six months prior to expiry of period of the provisional approval or within six months from the date of commencement of approval or within six months from the date of commencement of approval or within six months from the date of commencement of activities, whichever is earlier. As per the copy of form No.10AC, the activities, whichever is earlier. As per the copy of form No.10AC, the activities, whichever is earlier. As per the copy of form No.10AC, the date of provisional approval und date of provisional approval under section 80G(5)(vi) in this case is er section 80G(5)(vi) in this case is 23/11/2021. 5.1 Considering the above provisions, the assessee was specifically 5.1 Considering the above provisions, the assessee was specifically 5.1 Considering the above provisions, the assessee was specifically requested vide the initial notice itself to inform the date of expiry of requested vide the initial notice itself to inform the date of expiry of requested vide the initial notice itself to inform the date of expiry of provisional approval as well as the date of commencement of activ provisional approval as well as the date of commencement of activ provisional approval as well as the date of commencement of activities. The date of commencement of activities as per assessee's submission The date of commencement of activities as per assessee's submission The date of commencement of activities as per assessee's submission through e-portal is 05/01/2012. Therefore, it is seen that the activities portal is 05/01/2012. Therefore, it is seen that the activities portal is 05/01/2012. Therefore, it is seen that the activities of the assessee were commenced before obtaining provisional approval. of the assessee were commenced before obtaining provisional approval. of the assessee were commenced before obtaining provisional approval.
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5.2 For the sake of argument, take a 5.2 For the sake of argument, take a hypothetical case of an assessee hypothetical case of an assessee whose activities were commenced on 01/05/2022 but makes an whose activities were commenced on 01/05/2022 but makes an whose activities were commenced on 01/05/2022 but makes an application under clause (iv) of first proviso to section 80G(5) for application under clause (iv) of first proviso to section 80G(5) for application under clause (iv) of first proviso to section 80G(5) for provisional approval under section 80G(5)(vi) of the Act on 01/12/2022 provisional approval under section 80G(5)(vi) of the Act on 01/12/2022 provisional approval under section 80G(5)(vi) of the Act on 01/12/2022 i.e. after commencement i.e. after commencement of activities and gets such provisional approval of activities and gets such provisional approval on 15/12/2022. Such assessee would be required to file an application on 15/12/2022. Such assessee would be required to file an application on 15/12/2022. Such assessee would be required to file an application under clause (iii) of first proviso to section 80G(5) for regular approval under clause (iii) of first proviso to section 80G(5) for regular approval under clause (iii) of first proviso to section 80G(5) for regular approval under section 80G(5)(vi) of the Act on or before 30/11/2022 i. under section 80G(5)(vi) of the Act on or before 30/11/2022 i. under section 80G(5)(vi) of the Act on or before 30/11/2022 i.e. within six months from the date of commencement of activities. In such a case six months from the date of commencement of activities. In such a case six months from the date of commencement of activities. In such a case the assessee would be required to file an application for regular the assessee would be required to file an application for regular the assessee would be required to file an application for regular approval before making an application for provisional approval under approval before making an application for provisional approval under approval before making an application for provisional approval under section 80G(5)(vi) of the Act. However, section 80G(5)(vi) of the Act. However, the Statute does not permit for the Statute does not permit for making application directly for regular approval. The assessee has to making application directly for regular approval. The assessee has to making application directly for regular approval. The assessee has to mandatorily get provisionally approved first, for being eligible for mandatorily get provisionally approved first, for being eligible for mandatorily get provisionally approved first, for being eligible for making any application for regular approval. The only remedy for such making any application for regular approval. The only remedy for such making any application for regular approval. The only remedy for such assessee would assessee would be to file an application for provisional approval before be to file an application for provisional approval before commencement of activities and then only the assessee can observe the commencement of activities and then only the assessee can observe the commencement of activities and then only the assessee can observe the further timeline of clause (iii) of first proviso to section 80G(5) of the Act. further timeline of clause (iii) of first proviso to section 80G(5) of the Act. further timeline of clause (iii) of first proviso to section 80G(5) of the Act. In such a situation any assessee who misses the In such a situation any assessee who misses the bus or an assessee bus or an assessee who has commenced its activities before the implementation of newly who has commenced its activities before the implementation of newly who has commenced its activities before the implementation of newly inserted provisions of Law in this regard, will not get any approval inserted provisions of Law in this regard, will not get any approval inserted provisions of Law in this regard, will not get any approval under section 80G(5)(vi) of the Act. This definitely is not the purpose of under section 80G(5)(vi) of the Act. This definitely is not the purpose of under section 80G(5)(vi) of the Act. This definitely is not the purpose of bringing-in the new provi in the new provisions for registration / approval of a charitable sions for registration / approval of a charitable institution in the Statute. Considering the above, it is but natural that in institution in the Statute. Considering the above, it is but natural that in institution in the Statute. Considering the above, it is but natural that in case of an assessee who has already commenced its activities and case of an assessee who has already commenced its activities and case of an assessee who has already commenced its activities and intends to get approved under section 80G(5)(vi) of the Act, has intends to get approved under section 80G(5)(vi) of the Act, has intends to get approved under section 80G(5)(vi) of the Act, has to first get provisionally approved under section 80G(5)(vi) by making an get provisionally approved under section 80G(5)(vi) by making an get provisionally approved under section 80G(5)(vi) by making an application under clause (iv) of first proviso to section 80G(5) of the Act application under clause (iv) of first proviso to section 80G(5) of the Act application under clause (iv) of first proviso to section 80G(5) of the Act and then has to apply under clause (iii) of first proviso to section 80G(5) and then has to apply under clause (iii) of first proviso to section 80G(5) and then has to apply under clause (iii) of first proviso to section 80G(5) of the Act, for regular appro of the Act, for regular approval under section 80G(5)(vi), within 6 months val under section 80G(5)(vi), within 6 months from the date of provisional approval. In such a case, the date of from the date of provisional approval. In such a case, the date of from the date of provisional approval. In such a case, the date of commencement of activity would naturally be the date of provisional commencement of activity would naturally be the date of provisional commencement of activity would naturally be the date of provisional approval for computation of limitation period of six months for making approval for computation of limitation period of six months for making approval for computation of limitation period of six months for making an application under clause (iii) of first proviso to section 80G(5) of the pplication under clause (iii) of first proviso to section 80G(5) of the pplication under clause (iii) of first proviso to section 80G(5) of the Act. In view of the above, in the instant case, the limitation period for In view of the above, in the instant case, the limitation period for In view of the above, in the instant case, the limitation period for making application under clause (iii) of first proviso to section 80G(5) of making application under clause (iii) of first proviso to section 80G(5) of making application under clause (iii) of first proviso to section 80G(5) of the Income Tax Act, 1961 is requir the Income Tax Act, 1961 is required to be computed from the date of ed to be computed from the date of provisional approval. provisional approval. 5.3 Considering the above facts, it is seen that the assessee had Considering the above facts, it is seen that the assessee had Considering the above facts, it is seen that the assessee had commenced its activities before the date of provisional approval. Since, commenced its activities before the date of provisional approval. Since, commenced its activities before the date of provisional approval. Since, the activities of the assessee were already commenced before the activities of the assessee were already commenced before the activities of the assessee were already commenced before the date of provisional approval, the assessee was required to file the present of provisional approval, the assessee was required to file the present of provisional approval, the assessee was required to file the present application within 6 months from the date of provisional approval i.e. on application within 6 months from the date of provisional approval i.e. on application within 6 months from the date of provisional approval i.e. on or before 22/05/2022. The extended due date for filing of such or before 22/05/2022. The extended due date for filing of such or before 22/05/2022. The extended due date for filing of such application was 30/09/2022 as per CBDT application was 30/09/2022 as per CBDT, Circular No.8/2022, dated , Circular No.8/2022, dated 31/03/2022. Whereas the present application filed by the assessee is 31/03/2022. Whereas the present application filed by the assessee is 31/03/2022. Whereas the present application filed by the assessee is on 28/09/2023, i.e. beyond the time limit allowed under clause (iii) of on 28/09/2023, i.e. beyond the time limit allowed under clause (iii) of on 28/09/2023, i.e. beyond the time limit allowed under clause (iii) of first proviso to section 80G(5) of the Income Tax Act, 1961. first proviso to section 80G(5) of the Income Tax Act, 1961.
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5.4 The assessee was there 5.4 The assessee was therefore requested vide the notice dated fore requested vide the notice dated 26/02/2024 to show cause as to why the application should not be 26/02/2024 to show cause as to why the application should not be 26/02/2024 to show cause as to why the application should not be rejected and as to why the approval should not be cancelled. rejected and as to why the approval should not be cancelled. rejected and as to why the approval should not be cancelled. 5.5 However, the assessee has not furnished any reply to the show 5.5 However, the assessee has not furnished any reply to the show 5.5 However, the assessee has not furnished any reply to the show- cause notice. In absence of cause notice. In absence of any reply / explanation from the assessee, any reply / explanation from the assessee, it is presumed that the assessee has nothing to say in the matter. it is presumed that the assessee has nothing to say in the matter. it is presumed that the assessee has nothing to say in the matter. 5.6 From the provisions of clause (iti) of first proviso to section 80G(5) of 5.6 From the provisions of clause (iti) of first proviso to section 80G(5) of 5.6 From the provisions of clause (iti) of first proviso to section 80G(5) of the Act, it is evident that the time limits prescribed therein are the Act, it is evident that the time limits prescribed therein are the Act, it is evident that the time limits prescribed therein are mandatory and the Commissioner of Income Tax has no power to mandatory and the Commissioner of Income Tax has no power to mandatory and the Commissioner of Income Tax has no power to condone the delay in filing application in Form No. 10AB. The said legal condone the delay in filing application in Form No. 10AB. The said legal 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 position further gets fortified by the fact that the CBDT on multiple position further gets fortified by the fact that the CBDT on multiple occasions had extended the time limit in filing the occasions had extended the time limit in filing the application in Form application in Form No. 10A and / or From No. 10AB as under: No. 10A and / or From No. 10AB as under: (a) The CBDT vide Circular No.12 of 2021 dated The CBDT vide Circular No.12 of 2021 dated 25/06/2021 in 25/06/2021 in exercise of its power under section 119 of the Act, provided exercise of its power under section 119 of the Act, provided exercise of its power under section 119 of the Act, provided relaxation for various compliances, including making application relaxation for various compliances, including making application relaxation for various compliances, including making application under section 10(23C), 80G(5)(vi), 35(1)(ii)/(iia)/(iii) and 80G of under section 10(23C), 80G(5)(vi), 35(1)(ii)/(iia)/(iii) and 80G of under section 10(23C), 80G(5)(vi), 35(1)(ii)/(iia)/(iii) and 80G of the Act in Form No.10A /Form No. 10AB, for appro the Act in Form No.10A /Form No. 10AB, for appro the Act in Form No.10A /Form No. 10AB, for approval / provisional approval / intimation / approval / provisional provisional approval / intimation / approval / provisional provisional approval / intimation / approval / provisional approval of Trusts / Institutions / Research Associations etc., approval of Trusts / Institutions / Research Associations etc., approval of Trusts / Institutions / Research Associations etc., which were required to be made on or before 30th June 2021 which were required to be made on or before 30th June 2021 which were required to be made on or before 30th June 2021 was allowed to be made / filed on or before 31 st August 2021. was allowed to be made / filed on or before 31 st August 2021. was allowed to be made / filed on or before 31 st August 2021. (b) Thereafter, the CBDT vide Circular No.16 of 2021 Thereafter, the CBDT vide Circular No.16 of 2021 Thereafter, the CBDT vide Circular No.16 of 2021 dated 29/08/2021, further extended the date of filing of Form No.10A 29/08/2021, further extended the date of filing of Form No.10A 29/08/2021, further extended the date of filing of Form No.10A under section 10(23C), 12A, 35(1)(ii) / (ia) / (iii or 80G, which under section 10(23C), 12A, 35(1)(ii) / (ia) / (iii or 80G, which under section 10(23C), 12A, 35(1)(ii) / (ia) / (iii or 80G, which was required to be filed on or before 30th June 2021 upto 31st was required to be filed on or before 30th June 2021 upto 31st was required to be filed on or before 30th June 2021 upto 31st March 202 March 2022 and similarly for application for approval or 2 and similarly for application for approval or approval under section 10(23C), 12A or 80G of the Act in Form approval under section 10(23C), 12A or 80G of the Act in Form 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 No. 10AB, for which the last date for filing falls on or before 28th No. 10AB, for which the last date for filing falls on or before 28th February, 2022 up to 31st March, 2022. February, 2022 up to 31st March, 2022. (c) Thereafter, once again the CBDT vi Thereafter, once again the CBDT vide Circular de Circular No.8/2022 dated 31/03/2022 on consideration of difficulties in electronic dated 31/03/2022 on consideration of difficulties in electronic dated 31/03/2022 on consideration of difficulties in electronic filing of Form No.10AB as stipulated in Rule 2C or 11AA or 17A filing of Form No.10AB as stipulated in Rule 2C or 11AA or 17A filing of Form No.10AB as stipulated in Rule 2C or 11AA or 17A of the Income Tax Rules, 1962, stipulated that "The application of the Income Tax Rules, 1962, stipulated that "The application of the Income Tax Rules, 1962, stipulated that "The application for approval or approval under section 10(2 for approval or approval under section 10(23C), 12A or 80G of 3C), 12A or 80G of the Act, in Form No.10AB, for which the last date for filing falls the Act, in Form No.10AB, for which the last date for filing falls 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 on or before 29th September, may be filed on or before 30th on or before 29th September, may be filed on or before 30th September, 2022. September, 2022. (d) Thereafter, once again the CBDT vide Circular Thereafter, once again the CBDT vide Circular No.6/2023 Thereafter, once again the CBDT vide Circular dated 24/05/2023, further extende dated 24/05/2023, further extended the date of filing of Form d the date of filing of Form No. 10A in case of an application under clause i) of the first No. 10A in case of an application under clause i) of the first No. 10A in case of an application under clause i) of the first proviso to clause (23C) of section 10 or under sub proviso to clause (23C) of section 10 or under sub- -clause (i) of clause (ac) of subsection (1) of section 12A or under clause i) of clause (ac) of subsection (1) of section 12A or under clause i) of clause (ac) of subsection (1) of section 12A or under clause i) of the first proviso to subsection the first proviso to subsection (5)of section 80G of the Act, till (5)of section 80G of the Act, till 30/09/2023 where the due date for making such application 30/09/2023 where the due date for making such application 30/09/2023 where the due date for making such application has expired prior to such date; and has expired prior to such date; and
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Form No. 10AB, in case of Form No. 10AB, in case of an application under clause (iii an application under clause (iii) of the first proviso to clause (23C) of section 10 or under sub first proviso to clause (23C) of section 10 or under sub first proviso to clause (23C) of section 10 or under sub-clause (iii) of clause (ac) of sub of clause (ac) of sub-section (1) section 12A of the Act, till section (1) section 12A of the Act, till 30/09/2023 30/09/2023 where the due date for making such application where the due date for making such application has expired prior to such date. has expired prior to such date. 5.7 It is evident from the above that the time limit prescribed under 5.7 It is evident from the above that the time limit prescribed under 5.7 It is evident from the above that the time limit prescribed under clause iii) of first clause iii) of first proviso to section 80G(5) of the Act for filing Form 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 No.10A and Form No.10AB, as the case may be, is mandatory and No.10A and Form No.10AB, as the case may be, is mandatory and therefore, after considering the hardship to the assessee the CBDT therefore, after considering the hardship to the assessee the CBDT therefore, after considering the hardship to the assessee the CBDT extended the said time limit on multiple occasions, for filing Form No. extended the said time limit on multiple occasions, for filing Form No. 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 A and Form No.10AB, under section 119 of the Act, vide above A and Form No.10AB, under section 119 of the Act, vide above referred Circulars. As per above referred CBDT Circular No.8/2022, the referred Circulars. As per above referred CBDT Circular No.8/2022, the referred Circulars. As per above referred CBDT Circular No.8/2022, the applicant / assessee, whose last date for filing Form No.10AB for applicant / assessee, whose last date for filing Form No.10AB for applicant / assessee, whose last date for filing Form No.10AB for approval / approval under section 10(23C) or 12A or 80G(5) approval / approval under section 10(23C) or 12A or 80G(5) approval / approval under section 10(23C) or 12A or 80G(5) was falling on or before 29th September, 2022, was extended upto 30th September, on or before 29th September, 2022, was extended upto 30th September, on or before 29th September, 2022, was extended upto 30th September, 2022. Thereafter, there was no further extension for delay in filing Form Thereafter, there was no further extension for delay in filing Form Thereafter, there was no further extension for delay in filing Form No. 10AB was granted by the CBDT, till a new Circular dated No. 10AB was granted by the CBDT, till a new Circular dated No. 10AB was granted by the CBDT, till a new Circular dated 24/05/2023 is issued, and the same was e is issued, and the same was evident from CBDT Circular vident from CBDT Circular No.22 of 2022 dated 01/11/2022, through which the CBDT extended No.22 of 2022 dated 01/11/2022, through which the CBDT extended 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 the time limit for filing application in Form No.10A under various 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 sections made therein, upto 25/11/2022, and in said Circular No.22 of sections made therein, upto 25/11/2022, and in said Circular No.22 of 2022, no further extension of 2022, no further extension of time was granted for filing Form No. time was granted for filing Form No. 10AB. It is also evident from the Circular No.6/2023, through which the 10AB. It is also evident from the Circular No.6/2023, through which the 10AB. 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 CBDT has extended the time limit for filing of application in form No.10A 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 under various section, upto 30/09/2023 and also extended the time 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 for filing of application in form No. 10AB, only in case of application 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 under clause (iii) of first proviso to clause (23C) of section 10 and under under clause (iii) of first proviso to clause (23C) of section 10 and under sub-clause (iii) of clause (ac) of sub clause (iii) of clause (ac) of sub-section (1) of section 12A of the Act, section (1) of section 12A of the Act, up to 30/09/2023. up to 30/09/2023. Thus, no further extension of time has been granted ther extension of time has been granted for application under clause (iii) of first proviso to sub for application under clause (iii) of first proviso to sub-section (5) of section (5) of section 80G of the Act vide the said Circular dated 24/05/2023. section 80G of the Act vide the said Circular dated 24/05/2023. section 80G of the Act vide the said Circular dated 24/05/2023. 5.8 From the above, it is evident that the present application filed in From the above, it is evident that the present application filed in From the above, it is evident that the present application filed in Form No. 10AB under clause (ii) of first proviso to section 80G(5) of the o. 10AB under clause (ii) of first proviso to section 80G(5) of the o. 10AB under clause (ii) of first proviso to section 80G(5) of the Act, has not been filed within the time limit prescribed therein and Act, has not been filed within the time limit prescribed therein and 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. therefore the same is liable to be rejected, without going into the merits. therefore the same is liable to be rejected, without going into the merits. Reliance is also placed on the decision of Reliance is also placed on the decision of the Hon'ble Kolkata Tribunal the Hon'ble Kolkata Tribunal in the case of Bishnupur Public Education Institute, reported in 139 in the case of Bishnupur Public Education Institute, reported in 139 in the case of Bishnupur Public Education Institute, reported in 139 taxmann.com 121, wherein the Hon'ble Tribunal while adjudicating the taxmann.com 121, wherein the Hon'ble Tribunal while adjudicating the 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, issue of similar provisions of due date under section 10(23C) of the Act, 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 eliance on various decisions of the Hon'ble Supreme Court eliance on various decisions of the Hon'ble Supreme Court and that of Hon'ble High Court has held as under: and that of Hon'ble High Court has held as under: "5. The Hon'ble Madras High Court in the case of All "5. The Hon'ble Madras High Court in the case of All "5. The Hon'ble Madras High Court in the case of All Angels Educational Society (supra) while considering the issue whether Educational Society (supra) while considering the issue whether Educational Society (supra) while considering the issue whether the Id. CIT (Exemption) the Id. CIT (Exemption) has power to condone the delay in filing has power to condone the delay in filing application for grant of approval under section 10(23C) or not, application for grant of approval under section 10(23C) or not, application for grant of approval under section 10(23C) or not, has considered the judgments of Hon'ble Supreme Court in the has considered the judgments of Hon'ble Supreme Court in the 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 case of State of U.P v. Harish Chandra AIR 1996 SC 2173 as case of State of U.P v. Harish Chandra AIR 1996 SC 2173 as well as Union of India v. well as Union of India v. Kirloskar Pneumatic Co. Ltd. 1996 skar Pneumatic Co. Ltd. 1996 taxmann.com 575 (SC) and held that where there is no provision taxmann.com 575 (SC) and held that where there is no provision taxmann.com 575 (SC) and held that where there is no provision
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to empower the statutory authority to condone the delay, than to empower the statutory authority to condone the delay, than to empower the statutory authority to condone the delay, than the authority cannot condoned. The finding of the Hon ble Court the authority cannot condoned. The finding of the Hon ble Court the authority cannot condoned. The finding of the Hon ble Court in Paragraphs no. 15 & 16 worth to not in Paragraphs no. 15 & 16 worth to note, which read as under : e, which read as under :- "15. However, considering the legal position that there is no power to condone the delay in filing an application no power to condone the delay in filing an application under section 10(23C) of the Act, this Court is not under section 10(23C) of the Act, this Court is not inclined to exercise its extraordinary jurisdiction to inclined to exercise its extraordinary jurisdiction to condone the delay. However, this Court is inclined to he delay. However, this Court is inclined to give appropriate direction to the respondent to consider give appropriate direction to the respondent to consider the petitioner's application as an application for the the petitioner's application as an application for the subsequent assessment year, namely, 2013 subsequent assessment year, namely, 2013-2014 in accordance accordance with with law. law. Such Such direction direction is is issued issued considering the peculiar facts and circumstances of the idering the peculiar facts and circumstances of the case and that the petitioner could not have made an case and that the petitioner could not have made an application for the subsequent assessment year 2013 application for the subsequent assessment year 2013- 2014, since their application for assessment year 2014, since their application for assessment year 2012- 2013 was still pending consideration and the 2013 was still pending consideration and the impugned order came to be passed only on 13-11 11-2013. The respondent is at liberty to consider the amended respondent is at liberty to consider the amended objectives of the petitioner Trust. 16. Accordingly, the writ petition is partly allowed and allowed and the finding rendered by the respondent that the the finding rendered by the respondent that the petitioner's application cannot be considered as the same r's application cannot be considered as the same is time barred is affirmed and the finding with regard to is time barred is affirmed and the finding with regard to objectives of the Society by respondent holding that the objectives of the Society by respondent holding that the Society cannot be said to be solely for education purpose Society cannot be said to be solely for education purpose is set aside. Consequently, the matter is remanded back tter is remanded back to the respondent for fresh consideration and the to the respondent for fresh consideration and the petitioner's application is directed to be considered for petitioner's application is directed to be considered for the assessment year 2013-2014 in accordance with law 2014 in accordance with law and while doing so, may consider the amendments and while doing so, may consider the amendments made to the objectives of the petitioner Trust. No Costs. the petitioner Trust. No Costs. M.P. No. 1 of 2014 is closed." 6. Similar is the view of Hon'ble Andhra Pradesh 6. Similar is the view of Hon'ble Andhra Pradesh 6. Similar is the view of Hon'ble Andhra Pradesh High Court propounded in Aurora Educational Society case (supra). The propounded in Aurora Educational Society case (supra). The propounded in Aurora Educational Society case (supra). The Hon'ble Orissa High Court has also considered this aspect in the Hon'ble Orissa High Court has also considered this aspect in the Hon'ble Orissa High Court has also considered this aspect in the case of case of Roland Educational & Charitable Trust (supra). Roland Educational & Charitable Trust (supra). The concluding concluding paragraph of the judgment is worth to note in this paragraph of the judgment is worth to note in this aspect, which read as under : aspect, which read as under :- "Be that as it may, we are here concerned whether in the whether in the absence of any statutory provision to condone the delay absence of any statutory provision to condone the delay in presenting the application under section 10(23C)(vi), in presenting the application under section 10(23C)(vi), the Chief Commissioner of Income-tax can exercise any tax can exercise any such power". 7. The adjudicating authorities under the Income 7. The adjudicating authorities under the Income- -tax Act are quasi judicial authorities. They can grant approval with quasi judicial authorities. They can grant approval with quasi judicial authorities. They can grant approval with retrospective retrospective effect if such mechanism is provided in the Act. effect if such mechanism is provided in the Act.
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There is no such provision nor there is any power to condone the There is no such provision nor there is any power to condone the There is no such provision nor there is any power to condone the delay after considering the reasonable reasons. A reasonable delay after considering the reasonable reasons. A reasonable delay after considering the reasonable reasons. A reasonable cause can be taken into cognizance for condoning the delay, if cause can be taken into cognizance for condoning the delay, if cause can be taken into cognizance for condoning the delay, if such provision is such provision is provided in the Act while considering any issue provided in the Act while considering any issue for adjudication. Therefore, considering the above proposition, for adjudication. Therefore, considering the above proposition, for adjudication. Therefore, considering the above proposition, we are of the view that Id. CIT (Exemption) has rightly rejected we are of the view that Id. CIT (Exemption) has rightly rejected we are of the view that Id. CIT (Exemption) has rightly rejected the application of the assessee for grant of approval under the application of the assessee for grant of approval under the application of the assessee for grant of approval under section 10(23C)(vi section 10(23C)(vi) of the Income-tax Act. All these three appeals tax Act. All these three appeals are rejected. are rejected. 5.9 In view of the above, the present application filed in Form No. 10AB In view of the above, the present application filed in Form No. 10AB 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 under clause iii) of first proviso to section 80G(5) of the Act is liable to be under clause iii) of first proviso to section 80G(5) of the Act is liable to be rejected without going into the merits rejected without going into the merits since the assessee has not filed since the assessee has not filed the present application within the time limit allowed under clause iii of the present application within the time limit allowed under clause iii of the present application within the time limit allowed under clause iii of first proviso to section 80G(5) of the Income Tax Act, 1961. first proviso to section 80G(5) of the Income Tax Act, 1961.” 3.2 However, before us, the Ld. counsel for the assessee has However, before us, the Ld. counsel for the assessee has However, before us, the Ld. counsel for the assessee has referred to Circular issue Circular issued by the Central Board of Direct Taxes Central Board of Direct Taxes (CBDT) dated 25.04.2024 (CBDT) dated 25.04.2024, wherein period for filing application in wherein period for filing application in Form No. 10AB was extended up to 30.06.2024. The relevant Form No. 10AB was extended up to 30.06.2024. Form No. 10AB was extended up to 30.06.2024. Circular of the CBDT is reproduced as under: Circular of the CBDT is reproduced as under:
“Circular No. 7/2024 “Circular No. 7/
F. No. 173/25/2024-ITA-I Government of India Ministry of Finance Department of Revenue Central Board of Direct Taxes New Delhi, Dated 25th 25th April, 2024
Sub: Extension of due date for fili Sub: Extension of due date for filing of Form No. 10AlI0AB under th ng of Form No. 10AlI0AB under the Income-tax Act, 1961 tax Act, 1961- reg. On consideration of difficulties On consideration of difficulties reported by the taxpayers and other reported by the taxpayers and other stakeholders in the stakeholders in the electronic filing of Form No. 10A/10AB 10A/10AB , the Central Board of Direct Taxes (the Board) in exercise of Central Board of Direct Taxes (the Board) in exercise of Central Board of Direct Taxes (the Board) in exercise of its powers under section 119 of the Income under section 119 of the Income-tax Act, 1961 (the Act) extended the tax Act, 1961 (the Act) extended the due date for filin due date for filing Form No. 10A to 31.08.2021 by Circular No. 31.08.2021 by Circular No. 12/2021 dated 25 .06.2021 1 dated 25 .06.2021, to 31.03.2022 by Circular No. , to 31.03.2022 by Circular No. 16/2021 dated 29.08 .2021, to 25.11.2022 by Circular No. 16/2021 dated 29.08 .2021, to 25.11.2022 by Circular No. 16/2021 dated 29.08 .2021, to 25.11.2022 by Circular No. 2212022 dated 01.11.2022 and further to 2212022 dated 01.11.2022 and further to 30.09.2023 by Circular 30.09.2023 by Circular No. 6/2023 dated 24.05 .2023, and No. 6/2023 dated 24.05 .2023, and extended the due date for filing extended the due date for filing
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Form No. 10 10AB to 30.09.2022 by Circular No. 8/2022 dated AB to 30.09.2022 by Circular No. 8/2022 dated 31.03.2022 and further to 30.09.2023 by Circular 31.03.2022 and further to 30.09.2023 by Circular 31.03.2022 and further to 30.09.2023 by Circular No. 6/2023 dated 24.05.2023. dated 24.05.2023. 2. Representations have been received in the Board with a request 2. Representations have been received in the Board with a request 2. Representations have been received in the Board with a request to condone the delay i to condone the delay in filing Form No. 10A/10AB, as the same , as the same could not be filed in such cases wit could not be filed in such cases within the last extended date, i.e hin the last extended date, i.e., 30.09 .2023. 3. On consideration of the matter, with a view to avoid and mitigate 3. On consideration of the matter, with a view to avoid and mitigate 3. On consideration of the matter, with a view to avoid and mitigate genuine hardship in such genuine hardship in such cases, the Board, in exercise of the cases, the Board, in exercise of the powers conferred under section 119 of the Act, hereby extends the wers conferred under section 119 of the Act, hereby extends the wers conferred under section 119 of the Act, hereby extends the due date of making an application/intimation electronically in due date of making an application/intimation electronically in due date of making an application/intimation electronically in - (i) Form No. 10A (i) Form No. 10A, in case of an application under clause (i) of the first , in case of an application under clause (i) of the first proviso to clause (23C) of proviso to clause (23C) of section 10 or under sub-clause (i) of clause ause (i) of clause (ac) of sub-section (1) of section 12A or under clause (i) of section (1) of section 12A or under clause (i) of the first section (1) of section 12A or under clause (i) of proviso to sub proviso to sub-section (5) of section 80G or in case of an intimation section (5) of section 80G or in case of an intimation under fifth proviso of sub under fifth proviso of sub-section (I) of section 35 of the Act, till section (I) of section 35 of the Act, till 30.06.2024; (ii) Form No. 10 10AB, in case of an application under clause (iii) of the AB, in case of an application under clause (iii) of the first proviso to clause (23C) first proviso to clause (23C) of section 10 or under sub of section 10 or under sub-clause (iii) of clause (ac) of sub clause (ac) of sub-section ( I) of section 12A or under clause ( iii ) of clause ( iii ) of the first proviso to sub the first proviso to sub-section (5) of section 80G of the Act, till G of the Act, till 30.06.2024. 4. [t may be also noted that extension of due date as mentioned in 4. [t may be also noted that extension of due date as mentioned in 4. [t may be also noted that extension of due date as mentioned in paragraph 3(ii) shall also apply paragraph 3(ii) shall also apply in case of all pending applications in case of all pending applications under clause (iii) of the first proviso to clause (23C) of section 10 or under clause (iii) of the first proviso to clause (23C) of section 10 or under clause (iii) of the first proviso to clause (23C) of section 10 or sub-clause (iii) clause (iii) of clause (ac) of sub-section (1) of section 12A or section (1) of section 12A or under clause (iii) of the first proviso under clause (iii) of the first proviso to sub-section (5) of section 80G section (5) of section 80G of the Act, as the case may be. Hence, in cases where any trust, of the Act, as the case may be. Hence, in cases where any trust, of the Act, as the case may be. Hence, in cases where any trust, institution or fund has already m institution or fund has already made an application in Form ade an application in Form No.10AB under the said provisions on or AB under the said provisions on or before the issuance of this before the issuance of this Circular, and where the Principal Commissioner or Commissioner Circular, and where the Principal Commissioner or Commissioner Circular, and where the Principal Commissioner or Commissioner has not passed an order before the issuance of this Circular, the passed an order before the issuance of this Circular, the passed an order before the issuance of this Circular, the pending application in Form No. 10 nding application in Form No. 10AB may be treated as a valid treated as a valid application. 4.1 Further, in cases where any trust, institution or fund has 4.1 Further, in cases where any trust, institution or fund has 4.1 Further, in cases where any trust, institution or fund has already made an application in Form already made an application in Form No. 10AB, and where the AB, and where the Principal Commissioner or Commissioner has passed an order Principal Commissioner or Commissioner has passed an order Principal Commissioner or Commissioner has passed an order rejecting such rejecting such application, on or before the issuance of this application, on or before the issuance of this Circular, solely on account of the fact that the application solely on account of the fact that the application was furnished after was furnished after the due date or that the application has been furnished under the the due date or that the application has been furnished under the the due date or that the application has been furnished under the wrong section wrong section code, it may furnish a fresh application in Form No . code, it may furnish a fresh application in Form No .
Ummeed Foundation 10 ITA No. 1876/MUM/2024
10AB within the extended time provided i 10AB within the extended time provided in paragraph 3(ii) i.e. paragraph 3(ii) i.e. 30.06.2024. 5. It is also clarified that if any existing trust, institution or fund who 5. It is also clarified that if any existing trust, institution or fund who 5. It is also clarified that if any existing trust, institution or fund who had failed to file Form No. had failed to file Form No. 10A for AY 2022-23 within the due date 23 within the due date as extended by the CBDT circular no. 6/ 2023 dated as extended by the CBDT circular no. 6/ 2023 dated as extended by the CBDT circular no. 6/ 2023 dated 24.05.2023 and subsequently and subsequently, applied for provisional registration as a new , applied for provisional registration as a new trust, institution or fund and trust, institution or fund and has received Form No. 10 has received Form No. 10AC, it can avail the option to surrender avail the option to surrender the said Form No. 10AC and apply AC and apply for registration for AY 2022 registration for AY 2022-23 as an existing trust, institution or fund stitution or fund in Form No. 10 rm No. 10A within the extended time provided in paragraph 3(i) extended time provided in paragraph 3(i) i.e. 30.06.2024. i.e. 30.06.2024. 6. Hindi version to follow. 6. Hindi version to follow.” In view of above Circular, the application filed by the assessee 3.3 In view of above Circular, the application filed by the assessee In view of above Circular, the application filed by the assessee is within limitation and thus the finding of the Ld. CIT(E) for is within limitation and thus the finding of the Ld. CIT(E) for is within limitation and thus the finding of the Ld. CIT(E) for he application of the assessee on this ground is set rejection of the application of the assessee on this ground is set he application of the assessee on this ground is set aside.
3.4 The Ld. CIT(E) has also rejected the impugned application for The Ld. CIT(E) has also rejected the impugned application for The Ld. CIT(E) has also rejected the impugned application for rejection u/s 80G(5) of the Act for the reason that registration u/s rejection u/s 80G(5) of the Act for the reason that registration u/s rejection u/s 80G(5) of the Act for the reason that registration u/s 12AB of the Act was also rejected vide order dated 11.03.2024 i.e. 12AB of the Act was also rejected vide order dated 11.03.202 12AB of the Act was also rejected vide order dated 11.03.202 the same date on which the present application of the assessee u/s the same date on which the present application of the assessee u/s the same date on which the present application of the assessee u/s 80G(5) of the Act has been rejected 80G(5) of the Act has been rejected. We are of opinion that unless We are of opinion that unless the registration u/s 12AA or 12AB is not restored, the assessee is the registration u/s 12AA or 12AB is not restored, the assessee is the registration u/s 12AA or 12AB is not restored, the assessee is not entitled for registration u/s 80G(5) of the not entitled for registration u/s 80G(5) of the Act. I Act. In view of the above facts and circumstances of the case above facts and circumstances of the case, we feel it appropriate to we feel it appropriate to restore the matter back to the file of the Ld. CIT(E) for deciding the restore the matter back to the file of the Ld. CIT(E) for deciding the restore the matter back to the file of the Ld. CIT(E) for deciding the application of the assessee afresh keeping in view the status of application of the assessee afresh keeping in view the status of application of the assessee afresh keeping in view the status of Registration of the assessee Registration of the assessee u/s 12AA or 12AB and u/s 12AA or 12AB and if same has been granted to the assessee s been granted to the assessee subsequently, then the application ubsequently, then the application u/s 80G(5) of the Act may also be considered in accordance with u/s 80G(5) of the Act may also be considered in accordance with u/s 80G(5) of the Act may also be considered in accordance with
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law. In the result, the grounds of the assessee are allowed for In the result, the grounds of the assessee are allowed for In the result, the grounds of the assessee are allowed for statistical purposes.
In the result, the appeal of the assessee is allowed for e result, the appeal of the assessee is allowed for e result, the appeal of the assessee is allowed for statistical purposes.
Order pronounced in the open Court on nounced in the open Court on 25/07/2024. /07/2024.
Sd/- Sd/- Sd/ (KAVITHA RAJAGOPAL) (KAVITHA RAJAGOPAL (OM PRAKASH KANT OM PRAKASH KANT) JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER Mumbai; Dated: 25/07/2024 Rahul Sharma, Sr. P.S. Copy of the Order forwarded to Copy of the Order forwarded to : 1. The Appellant 2. The Respondent. 3. CIT 4. DR, ITAT, Mumbai 5. Guard file. BY ORDER, BY ORDER, //True Copy// (Assistant Registrar) (Assistant Registrar) ITAT, Mumbai ITAT, Mumbai