9911796707
TMI Blog2023 (11) TMI 1241X X X X Extracts X X X X X X X X Extracts X X X X ..... tate Of Karnataka Another [ 1993 (8) TMI 292 - SUPREME COURT] Though the assessee has filed the application of 2.5 months delay and the provisions registration was not cancelled merely for permanent registration the application filed delayed. The assessee has all the reasons for recognition u/s 80G of the Act at least from the date the assessee filed an application and therefore, we direct the ld. CIT(A) to decide the issue of registration u/s 80G of the Act in accordance with law from the date on which the assessee made an application for permanent registration - Appeal of the assessee is allowed for statistical purpose. - DR. S. SEETHALAKSHMI, JM SHRI RATHOD KAMLESH JAYANTBHAI, AM For the Assessee : Sh. P. C. Parwal (F.C.A.) For the Revenue by : Sh. Ajay Malik (CIT) ORDER PER: RATHOD KAMLESH JAYANTBHAI, AM This appeal filed by assessee is arising out of the order of the Commissioner of Income Tax (Exemption), Jaipur dated 29/06/2023 [here in after referred (ld. CIT(E) ]. 2. The assessee has marched this appeal on the following grounds:- 1. The Ld. Commissioner of Income-tax (Exemption) erred in rejecting the application filed by the appellant for approval under Section 80G(5) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, whichever is earlier. In response of the notice the A/r of the applicant submitted its reply which is not found tenable. Thus, it is an admitted fact that the applicant had commenced its activities on 22-03-2015 and the present application filed in Form No.10AB clause (iii) of first proviso to subsection (5) of sec. 80G 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. Reliance is also placed on the decision of the Hon'ble Kolkata Tribunal in the case of Bishnupur Public Education Institute, reported in 139 taxmann.com 121, wherein the Hon'ble Tribunal while adjudicating the issue of similar provisions of due date u/s 10(23C) of the Act, after placing reliance on various decisions of the Hon'ble Supreme Court and that of Hon'ble High Court has held as under. 5. The Hon'ble Madras High Court in the case of All Angels Educational Society (supra) while considering the issue whether the Id. CIT (Exemption) has power to condone the delay in filing application for grant of approval under section 10(23C) or not, has considered the judgments of Hon'ble Supreme Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to condone the delay in presenting the application under section 10(23C) (vi), the Chief Commissioner of Income-tax can exercise any such power . 7. The adjudicating authorities under the Income-tax Act are quasi judicial authorities. They can grant approval with retrospective effect if such mechanism is provided in the Act. There is no such provision nor there is any power to condone the delay after considering the reasonable reasons. A reasonable cause can be taken into cognizance for condoning the delay, if such provision is provided in the Act while considering any issue for adjudication. Therefore, considering the above proposition, we are of the view that ld. CIT(Exemption) has rightly rejected the application of the assessee for grant of approval under section 10(23C)(vi) of the Income tax Act. All these three appeals are rejected. 8. In the result, all the appeals of the assessee are dismissed. 2.5 Hence, the present application filed in Form No. 10AB under clause (iii) of first proviso to sub-section (5) of sec. 80G the Act is liable to be rejected as non maintainable. 03. In view of above discussion assessee s claim of exemption u/s 80G is liable to be rejected and thus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respect of donation paid to any fund or institution. However, under sub-section 5, the deduction is allowable only if such fund or institution is established in India for charitable purpose and it fulfills the following conditions:- (i) The income of the fund or institution is exempt u/s 11 12. (ii) No part of income or asset of the fund or institution is used for any purpose other than a charitable purpose. (iii) The fund or institution is not for the benefit of any particular religious community or caste. (iv) It maintains regular accounts of its receipt expenditure. (v) It is constituted as a public charitable trust or registered under Societies Registration Act, 1860 or u/s 8 of Companies Act, 2013 (vi) It is approved by the Commissioner. (vii) It prepares delivers the statement of donation to the prescribed authorities. (viii) It furnishes to the donor a certificate specifying the amount of donation received. The assessee has satisfied all the conditions mentioned above. It is provisionally approved under clause (vi) of section 80G(5). However, clause (iii) of the proviso to section 80G(5) provides that where the institution or fund has been provisionally approved, it shall m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... either statutory or inherent. The latter is available where the mistake is of the Court. In Administrative Law the scope is still wider. Technicalities apart if the Court is satisfied of the injustice then it is its constitutional and legal obligation to set it right by recalling its order. In view of above, only because there is some delay in moving application for permanent registration u/s 80G(5) when the provisional registration is in force, cannot be a reason to reject the application only on the ground that CIT(E) has no power given in the Statue to condone the delay ignoring that an authority who has the power to grant has inherent power to condone the delay also unless such power is specifically denied as is in second and third proviso to section 254(2A) of the Act. Hence the Ld. CIT(E) be directed to grant permanent registration on the basis of application filed on 16.12.2022. 4. The Ld. CIT(E) has relied on the decision of ITAT, Kolkata Bench. This decision is with reference to exemption u/s 10(23C)(vi) where it was held that CIT(E) does not have any power to condone the delay in granting approval for earlier years. This decision is on section 10(23C)(vi) and thus not ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other person or on the public generally and where to confer such benefit appears to have been the legislators object, then the presumption would be that such legislation, giving it a purposive construction, would warrant it to be given a retrospective effect. 7. It is further submitted that the benefit of section 80G is to the donors provided the fund or institution is approved u/s 80G(5). If the registration is not granted to the assessee for the sole reason of delay in filing the application, it would adversely affect the donors who have given the donation. Therefore also, the registration to the assessee should not be refused only because of small delay in filing the application. In view of above, Ld. CIT(E) be directed to grant registration u/s 80G(5) of the Act in pursuance to the application filed on 16.12.2022. 4.1 The ld. AR of the assessee in addition to the submission so filed submitted a paper book containing the following evidence in support of the written submission: S. No. Particulars Pg No. 1. Copy of order in Form 10AD dated 29.06.2023 approving the assessee's registration u/s 12A of the Act 1-4 2. Copy of Articles of Association and Memorandum of Association 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to provide, facilitate and channelise all and every kind of assistance to organizations which are working in the field of protection of cows and its progeny. The assessee filed an application for provisional registration on 16.10.2021 in Form No.10A u/s 12A(1)(ac)(vi) and under clause (iv) of first proviso to section 80G(5). It was granted provisional registration in Form No.10AC on 27.10.2021 from 27.10.2021 to A.Y. 2024-25. The assessee commenced its activities from 13.10.2021, i.e. from the date of its incorporation. Therefore, it filed an application in Form No.10AB both u/s 12A(1)(ac)(iii) (PB 47-55) and under clause (iii) of first proviso to section 80G(5) on 16.12.2022 for permanent registration. The Ld. CIT(E) granted permanent registration in Form No.10AD u/s 12A(1)(ac)(iii) vide order dated 29.06.2023 but refused the registration u/s 80G(5) by giving the following reasons:- (i) The application in Form No.10AB under clause (iii) of first proviso to sub-section 80G(5) is required to be filed at least 6 months prior to the expiry of provisional approval or within 6 months of commencement of its activities, whichever is earlier. (ii) The assessee commenced the activities on 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... permanent registration. There is no dispute as to the fact that assessee is provisionally registered till A.Y. 2024-25 vide order dated 27.10.2021. Thus it has complied with section 80G(5). The proviso to this section only deals with the procedure as to the filing of the application. The law of procedure has to be approached, understood and appreciated as a helpmate in the course of the process of administration of justice. Procedural provision should be so construed as to sub serve the course of justice and not to hinder it. It is a settled proposition of law that technicalities should not come in way in imparting the substantial justice. We get support of our this view from the decision of Hon ble Supreme Court in case of S. Nagaraj Others Vs. State Of Karnataka Another 4 SCC 595. 6.2 The Ld. CIT(E) has relied on the decision of ITAT, Kolkata Bench. This decision is with reference to exemption u/s 10(23C)(vi) where it was held that CIT(E) does not have any power to condone the delay in granting approval for earlier years. This decision is on section 10(23C)(vi) and thus not applicable. Even the principle laid down in this decision and the High Court decision referred therein is t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
