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TMI Blog2024 (3) TMI 614X X X X Extracts X X X X X X X X Extracts X X X X ..... evant details and documents, before ld CIT(E), as and when required by ld CIT(E). For statistical purposes, the appeal of the assessee is treated as allowed. X X X X Extracts X X X X X X X X Extracts X X X X ..... , within three months from the 1st day of April, 2021; (it) 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; **[(iv) in any other case, where the activities of the institution or fund have- 1. not commenced, at least one month prior to the commencement of the previous year relevant to assessment year from which the said approval is sought, 2. commenced and where no income or part thereof of the said institution or fund has been excluded from the total income on account of applicability of sub-clause (iv) or sub-clause (v) or sub-clause(vi) or sub-clause (via) of clause (23C) of section 10, or section 11 or section 12, for any previous year ending on or before the date of such application, at any time after the commencement of such activities,]. **The said clause (iv) of first proviso to sub-section (5) of section 80G of the Act has been substituted by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate for filing falls on or before 28th February, 2022 may be filed on or before 31st March, 2022. c. Thereafter, once again the CBDT vide Circular No. 8/2022 dated 31.03.2022 on consideration of difficulties in electronic filing of Form No.10AB as stipulated in Rule 2C or 11AA or 17A of the Income Tax Rules, 1962, stipulated that "The application for registration or 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 29th September, may be filed on or before 30th September, 2022. d. Thereafter, in order to mitigate the genuine hardship, the CBDT vide Circular No. 6/2023 dated 24.05.2023, further extended the date of filing of Form 10A, in case of an application u/s. 10(23C), 12A & 80G, till 30.09.2023, where the due date for making such application has expired prior to said date. Similarly, in order to mitigate the genuine, the CBDT vide Circular No. 6/2023 dated 24.05.2023 stipulated that "Form No. 10AB, in case of an application under clause (iii) of the first proviso to clause (23C) of section 10 or under sub-clause (iii) of clause (ac) of sub-section (1) of section 12A of the Act, till 30.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed within the due date specified in the Act and why the same should not be rejected as non-maintainable. 7. In response to the above, the assessee vides its response dated 19/06/2023 has submitted its reply and the same are reproduced hereunder: "1) With reference to our application filed by our Trust u/s. . 80G(5)(iii) of the Income Tax Act, 1961(the "Act"), vide Notice dated 08.06.2023, your honour has observed that as per submission filed on 02/ 05/2023 the trust has commenced its activities on 07/11/2022 however the financial statement for FY-21-22 shows that the trust has received donation and incurred expenses and that the activities of the applicant has commenced long back and directed us to explain as to why the present application filed u/s. 80G(5)(iii) in Form 10AB should not be treated as not filed within due date specified in the Act and why the same should not be rejected as non-maintainable. In this regard we submit as under: 2) We have filed present application in Form 10AB as per the Clause (iii) of First Proviso to sub-section 5 of Section 80G. Clause (iii) of First Proviso to Section 80G(5) reads as under: "Provided that the institution or f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e account has received donation of Rs.40,401/- in F.Y.2021-22 as well, the assessee has made expenses towards Expenditure on object of the trust at Rs.46,275/-, in F.Y.2021-22. The above said facts clearly prove that the activities of the assessee have commenced long back and therefore, the assessee was required to file the 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 02/12/2022. Therefore, the present application 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. In view of the above, the assessee`s application filed in Form No.10AB under section 80G(5) of the Act was rejected as non-maintainable by ld CIT(E). 9. Aggrieved by the order of ld. CIT(E), the assessee is in appeal before us. 10. Learned Counsel for the assessee, argued that provisions of Section 80G(5)(iii) have not defined the meaning of Commencement of activities. The assessee-trust has actually taken steps for pursuing the objectives on 07/11/2022, which should be treated as the date of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clause (i) of the first proviso to sub-section (5) of section 80G of the Act, till 30.09.2023 where the due date for making such application has expired prior to such date; (ii) Form No.10AB, in case of an application under clause (iii) of the first proviso to clause (23C) of section 10 or under sub-clause (iii) of clause (ac) of sub-section (1) of section 122A of the Act, till 30.09.2023 where the due date for making such application has expired prior to such date. 15. However, in earlier Circular 8/2022, which was issued on 31.03.2022 the CBDT has given instruction about approval 80G(5) of the Act, which is reproduced below: "1. On consideration of difficulties in electronic filing of form No.10AB as stipulated in Rule 2C or 11AA or 17A of the Income-Tax Rules, 1962 w.e.f. 01.04.2021, the Central Board of Direct Taxes (CBDT), in exercise of its powers under Section 119(1) of the Act, extends the due date for electronic filing of such Form as under: (i) The application for registration or 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 29th September, 2022, may be filed on or before 30th Septembe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (iii) 3rd proviso u/s. 80G(5) of the Act stating that "whichever is earlier" is applicable only to the newly constructed trust. The findings of the Co-ordinate Bench in the case of Bhamashah Sundarlal Daga Charitable Trust (supra) is reproduced below: 10.1 In this background, we need to read the sub-clause (iii) of the Proviso to Section 80G(5) of the Act. For ready reference it is again reproduced here under: "(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" 10.2 The sub-clause says that the Institution which have provisional registration have to apply at-least six months prior to expiry of the provisional registration or within Six months of commencement of activities, whichever is earlier. 10.3 In continuation of this when we read the 'sub clause iii of Proviso' of section 80G(5), which we have already reproduced above, it is clear that the intention of parliament in putting the word "or within six months of commencement of its activities, whichever is earlier" is in the context of the newly formed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accrued or arisen to him. It would indeed be most harsh and inequitable to tax the assessee on income which has neither arisen to him nor is received by him, merely because he has carried out the contractual obligation undertaken by him. It is difficult to conceive of any rational reason why the Legislature should have thought it fit to impose liability to tax on an assessee who is bound by law to carry out his contractual obligation to sell the property at the agreed price and honestly carries out such contractual obligation. It would indeed be strange if obedience to the law should attract the levy of tax on income which has neither arisen to the assessee nor has been received by him. If we may take another illustration, let us consider a case where A sells his property to B with a stipulation that after sometime, which may be a couple of years or more, he shall resell the property to A for the same price. Could it be contended in such a case that when B transfers the property to A for the same price at which he originally purchased it, he should be liable to pay tax on the basis as if he has received the market value of the property as on the date of resale, if, in the mean-whil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd. Therefore, in these facts and circumstances we hold that the Assessee had made the application in form 10AB within the prescribed time limit and hence it is valid application. Therefore, we direct the ld.CIT(E) to treat the application as filed within statutory time and verify assessee's eligibility as per the Act. The ld.CIT(E) shall grant opportunity to the assessee. Assessee shall be at liberty to file all the necessary documents before the ld.CIT(E). 14. Accordingly, the appeal of the assessee is allowed for statistical purpose. Since we have set aside to Ld.CIT(E), we do not intend to adjudicate each ground separately." 18. We note that the Co-ordinate Bench of ITAT Jodhpur in the case of Bhamashah Sundarlal Daga Charitable Trust (supra) dealt with only the issue/terminology of "whichever is earlier" which is applicable to new trust which have created recently, and it does not deal with condonation of delay in case of old trust who made the application before ld CIT(E ) very late, that is, the issue mention in clause (iii) of 3rd proviso of section 80(5), "where the institution or fund has been provisionally approved, at least six months prior to expiry of the period o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p responsibility for having misled the assessee-society by representing that the necessary application for registration were made in time; it has also referred to the action taken by the assessee-society against Sikri when it found that Sikri was not taking adequate steps to remedy the situation; it has also referred to the police complaints filed not only by the assessee-society against Sikri, but also to the complaint filed by the income tax authorities against Sikri which indicated that they also viewed Sikri to be responsible for the misrepresentation, fake certificates of registration, etc. Moreover, the Tribunal has taken note of the fact that the Metropolitan Magistrate, acting on the police complaint, remanded Sikri to custody and also referred to the fact that in the bail application, Sikri had again owned up responsibility for the fake certificates of registration. Taking an overall view of the facts and going by the preponderance of probabilities, the Tribunal came to hold the view that it was because of the irregularities, illegalities and misrepresentations of Sikri that the assessee-society was led to believe that appropriate applications under the Act were already fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubtedly competent to disagree with the view of the Appellate Assistant Commissioner. But in proceeding to do so, the Tribunal had to act judicially, i.e., to consider all the evidence in favour of and against the assessee. An order recorded on a review of only a part of the evidence and ignoring the remaining evidence cannot be regarded as conclusively determining the questions of fact raised before the Tribunal." 20. We are satisfied that the Tribunal has, in making its decision, kept in mind the aforesaid principles adumbrated by the Supreme Court. Its order cannot, therefore, be branded as perverse or unreasonable or irrational. 21. That takes us to the question as to whether in condoning the delay the Tribunal committed any error of law or illegality. There is a wealth of judicial literature on the subject of condonation of delay and most of the cases have arisen under section 5 of the Limitation Act, 1963. The principles that are to be applied are, however, no different whenever the question of condonation of delay comes up for consideration under other statutes. In the oft quoted judgment of the Supreme Court in Collector, Land Acquisition v. MST. Katiji [1987] 167 I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated the approach. In Ram Nath Sao v. Gobardhan Sao [2002] 3 SCC 195 it was observed by the Supreme Court that acceptance of the explanation furnished should be the rule and refusal, an exception, more so when no negligence or inaction or want of bona fides can be imputed to the defaulting party. In the present case, the Tribunal has found that the assessee-society has taken prompt remedial action and put Sikri on the dock and he also admitted his fault, though he tried to shift the blame to his employee whose whereabouts were never known. Even in his bail application he had confessed to his role in the alleged irregularities and illegalities. There has been no want of bona fides on the part of the assessee, nor did it fail to take immediate action once it was apprised of the irregularities in its affairs by M. P. Mansinghka Trust of Mumbai. In these circumstances, we are unable to say that the Tribunal committed an error in condoning the delay. 24. On the question of perversity of the decision of the Tribunal we may also refer to the judgment of the Supreme Court in Sree Meenakshi Mills Ltd. v. CIT [1957] 31 ITR 28. In that judgment, it was noted that only a question of law can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... "The submission made by Mr. Sharma does not appear to us to be correct. It is well-settled that the court cannot set aside the Tribunal's finding of fact if there is some evidence to support that finding even though the court itself might have come to a different conclusion upon the evidence." 26. The aforesaid principles govern the order of the Tribunal and the approach to be adopted by us in the present case. At best, what can be argued by the Revenue is only that another view was possible to be taken by the Tribunal and this Court should prefer the alternative view on the same facts and evidence and discard the Tribunal's view. Obviously the argument cannot be upheld, having regard to the above judgments. 27. For the above reasons we answer the substantial questions of law framed in ITA Nos.754, 773 and 775 of 2010 in the negative, against the Revenue and in favour of the assessee. Consequently the sole substantial question of law framed by us in ITA Nos.1092, 1101, 1103, 1104, 1112 and 1124 of 2010 is answered in the affirmative, against the Revenue and in favour of the assessee. The C.M. Application is disposed of. The appeals of the Revenue are accord ..... X X X X Extracts X X X X X X X X Extracts X X X X
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