AVANI THAKKAR CHARITABLE TRUST,VADODARA vs. ITO, WARD EXEMPTION, VADODARA, VADODARA

Avani Thakkar The CIT (Exemption), Charitable Trust, Ahmedabad C-51, Dakshinamurti Vs Residency, Opp. SUN Pharma Lab Atladra, Vadodara, Gujarat-390012 PAN: AADTA4132E (Respondent) (Appellant) Assessee Represented: Shri Sunil Talati, A.R. Revenue Represented: Shri Sanjeev Jain, CIT-DR Date of hearing : 25-01-2024 Date of pronouncement : 10-04-2024 आदेश/ORDER PER : T.R. SENTHIL KUMAR, JUDICIAL MEMBER:-

This appeal is filed by the Assessee as against the rejection order dated 28.05.2023 passed by the Commissioner of Income Tax (Exemption), Ahmedabad denying Final Registration under section 80G(5) of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’). The only reason for rejecting the application for final Registration is that the assessee filed its Application u/s. 80G(5)(iii) of the Act in Form No.10AB belatedly on 23.11.2022.

Page No 2 Avani Thakkar Charitable Trust vs. CIT(E)

“11. The submissions of the applicant/assessee have been considered carefully and it is an admitted fact that the applicant/assessee vide submission dated 15/05/2023 had submitted copies of registration/approval granted in the old regime u/s. 12A & 80G (5) dated 26.09.2012 and 30.10.2015 respectively along with proofs of activities done by the trust in the past which proves that the activities of the trust/institution were commenced long back. However, the applicant/assessee has remained silent on the point of maintainability of present application filed in form 10AB Page No 3 Avani Thakkar Charitable Trust vs. CIT(E) on account of not filed within prescribed due date. In view of the above, the assessee/applicant was required to file this present application in form 10AB on or before the extended time i.e. 30/09/2022 allowed by CBDT vide circular No.8/2022 whereas it has been filed on 23/11/2022 and the present application filed in Form No. 10AB u/s 80G(5) of the Act has not been filed within the time limit prescribed therein and therefore, the same is liable to be rejected as such as non-maintainable, without going into the merits/other aspects of the case.”

Page No 4 Avani Thakkar Charitable Trust vs. CIT(E)

4.1. On identical issue, Co-ordinate Bench of this Tribunal in the case of Best Buds Pet Care -Vs.- CIT(E) in vide order dated 30.11.2023, whereby set aside the rejection order with a direction to reconsider Form 10AB for Final Registration u/s. 80G of the Act by observing as follows:

“…6.1 For better understanding, section 80G(5)(3) of the Act reads as follows:- "(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;" 6.2. Reading of the above sub-section makes it clear that there is no provision to condone the delay in Registration of the Trust. However, the CBDT has extended the above time limits by invoking section 119 of the Act by issuing circular No. 8 of 2022, dated 31-03- 2022 extending the time limit upto 30th September, 2022. It is thereafter by circular No. 6 of 2023 dated 24-05-2023 clarified as follows:-

“7. It may be also noted that the extension of due date as mentioned in paragraph 5(ii) shall also apply in case of all pending applications under clause (iii) of the first proviso to clause (23C) of section 10 or sub-clause (iii) of clause (ac) of sub-section (1) of section 12A of the Act, as the case may be. Hence, in cases where the trust has already made an application in Form Ho. 10AB under the said provisions but such application has been furnished after 30.09.2022 and where the Principal Commissioner or Commissioner has not passed an order before the issuance of this Circular, the pending application in Form No. 10AB may be treated as a valid application. Further, in cases where the trust had already made an application in Form No. 10AB, and where the Principal Commissioner or Commissioner has passed an order rejecting such application, on or before the issuance of this Circular, solely on account of the fact that the application was furnished after the due date, the trust may furnish a fresh application in Form No. 10AB within the extended time provided in paragraph 5(ii) i.e. 30.09.2023.”

However, this clause (7) was not referred by the CIT(E) in his order while rejecting the registration u/s. 80G of the Act to the assessee Page No 5 Avani Thakkar Charitable Trust vs. CIT(E) on the sole ground that he has no power to condone the delay of belated filing of Form no. 10AB u/s. 80G(5) of the Act. 6.3 Reading of the above circular makes it clear that the time is extended up till 30-09-2023, whereas the assessee filed belated application on 28-02-2023. The above circular also clarified that even in case, where the application in Form No. 10AB was rejected by the CIT(E) on or before issuance of this circular dated 24-05- 2023, the assessee trust can make fresh application in Form 10AB on or before 30-09-2023. Thus, the ld. CIT(E) has not considered the clause 7 of the Circular no. 6 of 2023 thereby rejected the application which is in our considered view is against the circular issued by the CBDT. Therefore, we hereby set aside the impugned order passed by CIT(E) with a direction to reconsider the From No.10AB for final registration u/s. 80G of the Act by giving proper opportunity of being heard to the assessee trust. Needless to say the assessee trust should co-operate by furnishing all the required details as mandated under the law for granting final registration u/s. 80G of the Act.”

5.1. Respectfully following the above decision and CBDT Circular, we hereby set aside the impugned order passed by CIT(E) with a direction to reconsider the From No.10AB for Final Registration u/s. 80G of the Act by giving proper opportunity of being heard to the assessee trust. Needless to say the assessee trust should co- Page No 6 Avani Thakkar Charitable Trust vs. CIT(E) operate by furnishing all the required details as mandated under the law for granting final registration u/s. 80G of the Act.”