SUNIL TIBREWAL FOUNDATION,BHIWANDI, THANE vs. CIT (EXEMPTIONS), PUNE, PUNE

The present appeal has been filed by the assessee challenging the impugned order dated 29/03/2023 passed under section 80G(5) of the Income Tax Act, 1961 (“the Act”) by the learned Commissioner of Income Tax (Exemptions), Pune [“learned CIT(E)”].

Sunil Tibrewal Foundation

“3. The Order of the Ld. CIT(Exemptions), Pune was served on the Appellant on 29.03.2023. The period of filing an appeal before the Hon'ble ITAT ended on 27.05.2023. The appeal is being preferred on 29.09.2023 with a delay of 125 days. The reasons for delay are explained herewith and in the petition for condonation of delay annexed to this Affidavit.

4. The Appellant had filed an application for regular approval under clause (iii) to first proviso to section 80G of the Income-Tax Act, 1961 ('the Act') on 30.09.2022.

8. Under the new regime, the e-filing portal of the income-tax department does not provide any functionality to re-apply for regular approval under section 80G of the Act against the rejected application unlike the erstwhile regime wherein if the application for approval under section 80G of the Act was rejected, the trust could re-apply for approval and the hardship to file an appeal and appear before the Hon'ble Tribunal was avoided.

Sunil Tibrewal Foundation

5. We have considered the submissions of both sides and perused the material available on record. The assessee is a trust registered under the Maharashtra Public Trust Act, 1950. The assessee was granted provisional registration on 12/05/2022 in Form No.10AC under clause (iv) of first proviso of section 80G(5) of the Act from 12/05/2022 to the assessment year 2025-26. On 30/09/2022, the assessee filed the application in Form No.10AB for regular approval under section 80G of the Act. Vide impugned order dated 29/03/2023, the learned CIT(E) rejected the application of the assessee and also the provisional approval granted under section 80G(5) of the Act on 12/05/2022 on the basis that the assessee is neither registered under section 12AB read with section 12A(1)(ac)(i)/section 12A(1)(ac)(iii) of the Act nor approved under section 10(23C) read with clause (i)/(iii) of the first proviso to the said section and thus the case is not covered under the exclusion as provided vide proviso to clause (i) of section 80G(5) of the Act. Accordingly, the learned CIT(E), vide impugned order, came to the conclusion that the condition of section 80G(5)(i) of the Act has not been fulfilled in the present case.

Sunil Tibrewal Foundation

6. During the hearing, the learned AR placed on record the copy of the order dated 14/02/2024 passed by the coordinate bench of the Tribunal in assessee’s own case in Sunil Tiberwal foundation v/s CIT(Exemption), in ITA No. 3485/Mum/2023. From the perusal of the aforesaid order, we find that the coordinate bench restored the application filed by the assessee for the grant of regular approval under section 12AB of the Act to the file of learned CIT(E). The relevant findings of the coordinate bench, in the aforesaid decision, are reproduced as under:-

“4. We have heard both the parties and perused the records. The assessee foundation was granted provisional registration on 31.02.2021 u/s 12AB of the Act and thereafter, it applied for the regular registration which was rejected and the provisional registration was also cancelled on the ground that assessee did not bother to reply to the queries of the Ld. CIT(E). However it has been brought to our notice that neither the show cause notice was never served upon the assessee by post nor on the correct email Id SUNIL@GMEXWORLD.COM. Instead it is noted that the notice from office of Ld. CIT(E) was issued on SUNIL@GMEXWORLD.COM, which is not the email id of assessee. In such scenario, we find force in the submission of the Ld. AR that in the absence of the assessee being aware of the show cause notice [issued by the Ld. CIT(E)], the assessee cannot be faulted for not responding to the quires raised by the Ld. CIT(E) which in this case was never conveyed to the assessee. Therefore, the impugned action of the Ld. CIT(E) cannot be sustained and therefore we are inclined to set it aside and restore the application back to the file of the Ld. CIT(E) with a direction to sent notices to the correct registered email ID of assessee, and after giving proper opportunity to the assessee, the Ld CIT(E) to pass order in accordance to law.”

7. In view of the facts and circumstances as noted above, we deem it appropriate to restore the assessee’s application seeking approval under section 80G of the Act also to the file of the learned CIT(E) with a direction to consider the same afresh after the decision in respect of assessee’s application for approval under section 12AB of the Act. Needless to mention no order shall be Sunil Tibrewal Foundation passed without affording reasonable opportunity of being heard to the assessee. Accordingly, the impugned order passed by the learned CIT(E) is set aside and the grounds raised by the assessee are allowed for statistical purposes.