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TMI Blog2024 (8) TMI 1364X X X X Extracts X X X X X X X X Extracts X X X X ..... nnexures submitted along with Form 10 AB on 6.5.2022. 3. That the C.I.T.(E) was not justified in rejecting the present application filed in Form 10 AB u/s 80G(5)(iii) of the Act as not maintainable. 4. That the entire financial transactions reflected in the audited accounts are verifiable which he did not make any effort. 5. That the C.I.T.(E) under the circumstances was not justified to cancel the provisional certificate issued to the assessee under section 80G." 3. The facts of the case stated briefly are that the assessee is a charitable trust and had been granted provisional approval u/s 80G(5)(iv) of the Act in Form 10AC vide order dated 18.05.2023 for a period commencing from 18.05.2023 to AY 2026-27. Subsequently, the assessee also filed an application for registration u/s 80G(5)(iii) of the Act electronically on 24.05.2023 in Form No. 10AB under Rule 17A of the Income Tax Rules, 1962. However, the claim of the assessee was rejected by the Ld. CIT(E) wide order dated 16.11.2023. Agree with the order of the Ld. CIT(E), the assessee has filed the appeal before the tribunal. 4. At the outset, it may be mentioned that the appeal is barred by limitation by 77 days and alo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven the provisional approval granted by CIT(E) upto A.Y. 2026-27 under 12 clause (iv) of first proviso to sub section (5) of section 80G can be cancelled by him only on specific violation by the assessee. As such the rejection is not sustainable even on this ground as no violation was ever pointed by the C.I.T.(E) in the impugned order and the same was done arbitrarily. 4. While rejecting the Form 10AB the C.I.T.(E) did not discuss whether the assessee fulfils all other conditions mentioned in the section and documents enclosed along with the Form. Our counsel will argue on our grounds of Appeal. 5. I, on behalf of the assessee most humbly submits that we have a good case before Your Honour for fair adjudication. 6. Under the circumstances the delay of 79 days may kindly be condoned by Your Honour and our Appeal be decided on merits in the interest of justice." 7. The assessee was also required to inform whether any approval was granted under section 12AA or under section 80G of the Act earlier, in response to which, the Ld. AR filed a copy of the order No. ITBA/EXM/S/12AA/2019-20/1019905154(1) dated 07.11.2019 for registration under section 12AA of the Act from the AY 2020- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the income or assets of the institution or fund for any purpose other than a charitable purpose; (iii) the institution or fund is not expressed to be for the benefit of any particular religious community or caste; (iv) the institution or fund maintains regular accounts of its receipts and expenditure; [***] (v) the institution or fund is either constituted as a public charitable trust or is registered under the Societies Registration Act, 1860 (21 of 1860), or under any law corresponding to that Act in force in any part of India or under section 25 of the Companies Act, 1956 (1 of 1956), or is a University established by law, or is any other educational institution recognised by the Government or by a University established by law, or affiliated to any University established by law, or [****] or is an institution financed wholly or in part by the Government or a local authority.[***] (vi) in relation to donations made after the 31st day of March, 1992, the institution or fund is for the time being [approved by the Principal Commissioner or Commissioner]" {emphasis supplied} (vii) ................................................." 9. The Ld. CIT(Exemption) rejected the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght, and sent a copy of such order to the institution or fund. 4. In response to the said notice, the applicant/assessee has furnished certain details/documents. The submission of the assessee was examined. It was found that the assessee had already commenced its activities at least from F.Y 2019-20. The extended due date for filling application in Form 10AB was 30.09.2022 as per CBDT Circular No. 8/2022 dated 31.03.2022. However, the assessee did not file the form no- 10AB within the stipulated time limit. In view of the above facts, a show cause notice vide this office letter dated 07.11.2023 was issued and sent through ITBA to furnish its reply. 5. In response, the assessee furnished a reply as under: "With reference to your second specific query the order for registration under section AB of the Act in Form No. 10AC is enclosed for your ready reference from A. Y. 2022-23 to A.Y. 2026-27 is enclosed. The same was granted on 24.9.2021. My client filed the Form No 10 AB on 6.5.2022 and provisional registration was granted on 18.5.23 under section 80G(5)(iv) of the I.T. Act 1961. As per your requisition 3 I hereby submit that the Trust was earlier registered under section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration/information/approval/provisional approval of Trusts/ Institutions/Research Associations etc, which were required to be made on or before 30th June 2021 was allowed to be made/filed on or before 31st August 2021. b. Thereafter, the CBDT vide Circular No. 16/2021 dated 29th August 2021, further extended the date of filing of Form 10A u/s 10(230), 12A, 35(1)(2)/(a)/(m) or 80G, which was required to be filed on or before 30th June 2021 upto 31 March 2022 and similarly for application for registration or approval u/s 10(230), 12A or 80G of the Act in Form 10AB, for which the last date for filing falls on or before 28th February, 2022 may be filed on or before 31 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 20 or 11AA or 17A of the Income Tax Rules, 1962, stipulated that "The application for registration or approval under section 10(230), 124 or 80G of the Act, in Form No. 10AB, for which the last date for filing falls on or before 29th September, may be filled on or before 30th September, 2022 8. From the above, it is evident that the time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) as a new trust. If it had applied under clause (i), there was no need of issuing any provisional certificate and as per the second proviso to section 80G, the Principal Commissioner or Commissioner would have passed an order in writing granting it approval for a period of five years and there was no requirement for seeking any provisional approval which is required only for a new trust. Similar issue also came up for consideration in the case of Loyola Charitable Society Vs. CIT (Exemption), Kolkata, (ITA No. 580/KOL/2024, dated 19.06.2024) in which it was held as under: "5. Ground No. 1 relates to the rejection of the application of the assessee. It applied for approval u/s. 80G(5)(iv) whereas being an old trust and apparently granted approval earlier, the same should have been applied in clause (i) of the proviso to sub-section 5 of section 80G if the approval was granted earlier. The assessee applied for registration u/s. 80G(5)(iv) i.e. as a new trust erroneously and was granted provisional approval from 02.09.2022 to 2025-26 in Form No. 10AC. Subsequently, it applied for approval under clause (iii) of first proviso to sub-section (5) of section 80G of the Act on Form No. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mber, 2023. Its application alleged to be moved under sub-clause (iii) would have been under clause (i), then it would be construed as within time limit? 7. We are of the view that it is only a technical error. The ld. CIT(Exemption) ought to have looked into the matter on this aspect and call for a clarification from the assessee. Once he was seized of the matter and aware that the Trust was enjoying registration under section 80G under old regime, it fulfilled all other conditions, then on account of wrong mention of section (iii) instead of (i), in its application should have not been given much weightage for rejecting the application on technical grounds. Therefore, we set aside the impugned order and relegate this issue to the file of ld. CIT(Exemption) with a direction that application of the assessee be treated under clause (i) and it be decided on merit." 6. Further, in another case in ITA Nos. 49 & 50/Kol/2024 Shree Ram Chandra Saraf Seva Nidhi dated 14.03.2024 decided by the Tribunal "C" Bench, Kolkata the Bench vide para 3 has held as under: "3. Considering the overall facts and circumstances of the case and also as observed by us in many cases that due to complexi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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