9911796707
TMI Blog2024 (8) TMI 1364X X X X Extracts X X X X X X X X Extracts X X X X ..... of the clause under which the application was required to be filed, which was mentioned as clause (iv) of the first proviso to sub-section (5) of section 80G in column 6 of Form No. 10AC whereas the same should have been mentioned as clause (i) of the first proviso to sub-section (5) of section 80G and AR also admitted this fact in the course of the hearing. Since, Form No. 10AC was filed in time, the error on the part of the assessee for mentioning the wrong clause is deemed to be a curable defect and the application on Form No. 10AC is deemed to be filed under clause (i) of the first proviso to sub-section (5) of section 80G. The order of the Ld. CIT(Exemption) is hereby set aside and he is required to consider the application as filed under clause (i) of the first proviso to section 80G(5) of the Act and consider the same for grant of approval. Appeal of the assessee is allowed for statistical purposes. - Shri Sonjoy Sarma, Judicial Member And Shri Rakesh Mishra, Accountant Member For the Appellant : S. Banerjee, A.R. For the Respondent : Amitava Sen, Addl. CIT-DR ORDER PER RAKESH MISHRA, ACCOUNTANT MEMBER: This appeal filed by the assessee is against the order of the Ld. Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provisional certificate issued to the assessee was made on 16.11.2023 but the same was not served upon the assessee. Inadvertently the assessee downloaded from the system on 17.1.24 almost after a period of two months resulting in the delay of filing the present Appeal. Under the circumstances the Appellant prays for condonation of delay by 60 days in filing the hard copy of the Appeal before Your Honour. In the interest of justice I on behalf of The Appellant pray before Your Honour that the delay may kindly be condoned and the Appeal may be heard and disposed off as there is a gross error in the order of rejection as the CIT(E) inadvertently did not consider the application for registration in Form No.10 AB under section 12A(1)(ac) (iii) of the I.T. Act 1961 on 6.5.2022 along with annexures. 5. In view of the submission made we are of the view that there is sufficient cause for the delay which was neither mala fide/intentional nor has given any benefit to the assessee. Hence, the delay of 77 days is hereby condoned and the appeal is adjudicated on merits. 6. During the course of the hearing, the Ld. AR was required to file an affidavit in this regard which has been filed as u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Kolkata, ITA No. 666/Kol/2024, dated 09.07.2024 in support of the claim of approval under section 80G of the Act. The Ld. DR supported the order of the Ld. CIT(E). 8. We have heard the rival contentions and perused the material available on record. In order to address the issue, it is relevant to reproduce the provisions of section 80G(5)(vi) of the Act as under: (5) This section applies to donations to any institution or fund referred to in sub-clause (iv) of clause (a) of sub-section (2), only if it is established in India for a charitable purpose and if it fulfils the following conditions, namely:- (i) where the institution or fund derives any income, such income would not be liable to inclusion in its total income under the provisions of sections 11 and 12 [* * *] [or clause (23-AA) or clause (23-C) of section 10: [Provided that where an institution or fund derives any income, being profits and gains of business, the condition that such income would not be liable to inclusion in its total income under the provisions of section 11 shall not apply in relation to such income, if- (a) the institution or fund maintains separate books of account in respect of such business; (b) the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .10.2023 and sent through ITBA on the e-mail id given by the applicant Trust/Institution in its online application, with a request to furnish detailed note on the activities carried out by the assessee, as well as certain details/documents as mentioned therein. 3. The above-mentioned inquiry about the actual activities of the trust is necessary in view of the mandatory provisions of the procedure for approval u/s 80G(5)(iii) of the Act, 1961 reproduced below: 80G(5)(iii) The Principal Commissioner or Commissioner, on receipt of an application made under the first proviso, shall (i) where the application is made under sub-clause (i) of the said proviso, pass an order in writing granting it approval for a period of five years; (ii) where the application is made under sub-clause (ii) or clause (iii) of the said proviso,- (a) call for such documents or information from it or make such inquiries as he thinks necessary in order to satisfy himself about- (A) the genuineness of activities of the trust or institution or fund and (B) the fulfilment of all the conditions laid down in clauses (i) to (v); (b) after satisfying himself about the genuineness of activities under item (A) and the fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o it is essential to analyse the provisions of sec 80G(5)(iii) of the Act, as it stands today, which stipulates as under: Provided That ---------------------------------------------------- that) (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 From the above, it is evident that the provisions of sec 80G(5)(iii) of the Act prescribed time limit within which the applicant/assessee is required to file application for approval u/s 80G(5)(iii). In the present case, the applicant/assessee is Provisionally approved u/s 80G(5)(iv) of the Act and therefore, the applicant/assessee was required to file application in Form No. 10AB u/s 80G(5)(iii) of the Act within the time period of at least six months prior to expiry of period of the provisional approval or within six months of commencements of its activities, whichever is earlier. From the provisions of 80G(5)(iii) of the Act, it is evident that the time limits prescribed therein is mandatory and the Commissioner of Income Tax has no power to condone the delay in filin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cular No. 22/2022 dated 01st November, 2022, through which the CBDT extended the time limit for filing application in Form No. 10A under various sections made therein, up to 25.11.2022, and further in said Circular No. 22/2022, no further extension of time was granted for filing Form No. 10AB. 10. The Ld. CIT(Exemption) on perusal of the income and expenditure account for the year ended 31.03.2020 observed that the assessee had incurred expenses on account of donation of Rs. 10,000/- in the financial year 2019-20 which established the fact that the activities of the assessee had already commenced in the financial year 2019-20. Relying upon the decision of the Hon ble Kolkata Tribunal in the case of Bishnupur Public Education Institute reported in 139 taxmann.com 121 which has discussed various decisions of the Hon ble Supreme Court and the High Court, he held that application filed in Form No 10AB under section 80G(5)(iii) of the Act was non-maintainable as the Circular No. 6 of 2023, dated 24.05.2023 issued by Central Bard of Direct Taxes (CBDT) does not extend the benefit of extension and due date to 30.09.2023 to cases under section 80G(5)(iii) of the Act, which was only up to 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplicable. Further, this fact also escaped the attention of the Ld. CIT(E). Similar issue had come up before the Coordinate Bench in ITA No. 105/Kol/2024 Friends of Kolkata and vide order dated 01.04.2024, the Tribunal B Bench has held as under: 5. As far as the details of application and their dates, there is not much dispute. The ld. CIT(Exemption) was of the view that activity of the assessee-Trust commenced in 2012 and, therefore, for grant of a regular registration, it ought to have applied within six months from the appointed date, i.e. 1st of April, 2021 extended upto 30th September, 2023. The assessee did not file such application. He further observed that the assessee has applied for grant of a provisional registration under sub-clause (iv) and immediately thereafter applied for grant of a regular registration under sub-clause (iii), which is meant for those Trust or Society, which came after April, 2021. In view of the above, he was of the opinion that being an old Trust, the assessee has applied for a provisional registration and thereafter regular registration. But such application is not in consonance with the procedure laid down under sub-clause (iii) as well as sub-c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gistration accordingly. The Ld. CIT(E) will decide both the applications of the assessee within two months of the receipt of copy of this order. 12. Thus, the whole controversy arose due to incorrect mention of the clause under which the application was required to be filed, which was mentioned as clause (iv) of the first proviso to sub-section (5) of section 80G in column 6 of Form No. 10AC whereas the same should have been mentioned as clause (i) of the first proviso to sub-section (5) of section 80G and the Ld. AR also admitted this fact in the course of the hearing. Since, Form No. 10AC was filed in time, the error on the part of the assessee for mentioning the wrong clause is deemed to be a curable defect and the application on Form No. 10AC is deemed to be filed under clause (i) of the first proviso to sub-section (5) of section 80G. The order of the Ld. CIT(Exemption) is hereby set aside and he is required to consider the application as filed under clause (i) of the first proviso to section 80G(5) of the Act and consider the same for grant of approval under section 80G(5) to the trust in accordance with law within a period of 2 months from the date of receipt of this order. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
