M/S. BHAGWAN MAHAVIR JEEV V/S SEWA TRUSTT , LUDHIANA V. COMMISSIONER OF INCOME TAX ( EXEMPTIONS), CHANDIGARH

ITA 191/ASR/2024

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 6232 (ITAT-AMRITSAR)
• Duration Of Justice: 2 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-06-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 12-05-2024
• Assessment Year: 2023-2024
• Appeal Filed On: 07-04-2024
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Charitable institution
• Section: 80G; 12A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH, AMRITSAR. BEFORE DR. M. L. MEENA, ACCOUNTANT MEMBER AND SH. UDAYAN DAS GUPTA, JUDICIAL MEMBER I.T.A. No.191/Asr/2024 Assessment Year: 2023-24 M/s Bhagwan Mahavir Jee Sewa Trust, Ludhiana. [PAN: AAETB7992C] (Appellant) Vs. CIT(Exemptions) Chandigarh. (Respondent) Appellant by Sh. S. K. Mukhi, Adv. Respondent by Sh. Amit Jain, CIT. DR Date of Hearing 13.05.2024 Date of Pronouncement 28.06.2024 ORDER Per: Udayan Das Gupta, JM: This appeal is filed by the assessee against the order of the Ld. CIT(Exemption), Chandigarh, dated 07/03/2024, rejecting an application filed by the assessee, for approval u/s 80G (5) of the Act 1961. 2. The grounds of appeal preferred by the assessee are as follows: “1. That the orders of Ld. CIT(E), Chandigarh u/s 80G are illegal, erroneous and perverse and thus needs to be quashed. I.T.A. No.191/Asr/2024 Assessment Year: 2023-24 2 2. That the impugned order of the Ld. CIT(E) Chandigarh dated 07.03.2024 is illegal, perverse and not justified having denied deduction u/s 80G on wrong presumptions and provisions of law and thereby holding that the application for approval was delayed and not filed as per the express provisions of law which finding of the ld. CIT are not justified. 3. That the appellant craves leave to add, amend or delete any of the grounds of appeal on or before the disposal of the present appeal.” 3. The brief facts of the case are that the assessee is a public welfare trust for the benefit of “Birds by Persons” belonging to whatever community irrespective of caste, creed or, religion. The object of the trust is to look after the interest of Birds in form of their Shelters, Feeding, Dispensary/Hospital etc. that to represent Birds welfare organizations in all Government, Semi government and Judicial departments and authorities and to take all such steps as the trust may think fit by encouraging, or providing for the construction of sheds, water troughs and the likes and by providing for veterinary assistance to birds. 3.1 The assessee obtained provisional registration u/s 12AB of the Act 61, on 19/08/2022, granted by the Ld. PCIT, under sub clause (vi) of clause (ac) of sub section (1) of Section 12A on 19/08/2022, valid from Asst year 2023-24 to Asst year 2025-26. I.T.A. No.191/Asr/2024 Assessment Year: 2023-24 3 3.2 Further the assessee, obtained provisional approval u/s 80G Clause (iv) of first proviso to sub section (5) of the Act 61, (in Form 10AC) dated 20/08/2022, valid from 20 /08/2022 to Asst year 2025-26. Thereafter, the assessee (trust) also applied for final approval under clause (iii) of first proviso to sub section (5) of Section 80G of the Act 61, on 13/09/2023, in Form 10AB ( Rule 17A/11AA/2C ) , which has been rejected vide order dated 7th March, 2024, on the ground that the activity of the assessee has admittedly commenced from 11/07/2022 (as per certificate of registration granted by Sub Registrar, Ludhiana, and since the assessee has commenced activities from July 2022, and the assessee being provisionally approved under the first proviso to section 80G(5)(iv) the application for final approval should have been filed within six months of commencement of activities or should have been filed at least six months prior to the date of expiry of provisional approval, whichever is earlier , and as per provisions of the Act, the Commissioner has no power to condone the delay in filing the application for final approval in Form 10AB, and in the instant case the due date has already expired . 4. The Ld. AR of the assessee argued that the provisional approval itself has been granted to the assessee on 20/08/2022, and there cannot be any application for final registration without provisional, being granted, and in this case the condition of “six months prior to the expiry of provisional approval” is applicable. I.T.A. No.191/Asr/2024 Assessment Year: 2023-24 4 5. In support of his contention, he relies upon the judgments of the Kolkata ITAT in the case of West Bengal Welfare Society, ITA No: 730 and 731/Kol/ 2023, Asst Year 2023-24; Relevant portion is reproduced as below: “6. We note that the Id. CIT(E) has misconstrued the aforesaid proviso to section 80G (5) of the Act. As per the provision, an application for final / registration cannot be filed until and unless an assessee/trust has been given provisional approval u/s 80G(5)(iv) of the Act. The assessee was granted provisional approval on 30.11.2022 only, and within a few days i.e. on 03.12.2022, the assessee applied for final registration u/s Clause (iii) of 1st Proviso to section 80G (5) of the Act. Though the assessee might have commenced its activities prior to grant of provisional registration but that does not mean that the assessee in that event will be precluded from applying for final registration even after the grant of provisional registration. The assessee as per statutory provision could not have, directly applied for final registration without grant of provisional registration. The aforesaid proviso, therefore, is to be read as that after the grant of provisional registration, if the assessee has not commenced its activities, he may apply for registration within six months of the commencement of its activities or within the six months prior to the expiry of the period of provisional approval, whichever is earlier. In any case, the assessee is eligible to apply for final registration only after the grant of provisional approval. Therefore, we hold that there is I.T.A. No.191/Asr/2024 Assessment Year: 2023-24 5 no delay on the part of the assessee in filing application in the prescribed form for grant of final registration under Clause (iii) of 1st Proviso to section 80G (5) of the Act. However, since we have restored the matter to the Id. CIT(E) for decision afresh on merits on the application for final registration u/s 12A of the Act and since the registration u/s 80G (5) is dependent upon the registration u/s 12A of the Act, therefore, the application of the assessee for registration u/s 80G (5) is also restored to the Id. CIT(E) subject to the observations made above.” 5.1 In some of the other judgments relied upon by the assessee, the Hon’ble Tribunal, in all the cases has taken an almost similar view in the matter: (a) Tomorows Foundation, ITA No 367/Kol/2024 ITAT, Kolkata Bench 160 taxmann.com174, (b) Bhamashah Sundarlal Daga Charitable Trust ITA 278/Jodhpur, ITAT Jodhpur Bench 158 taxmann.com 712, (c) Go Gram Eco Foundation, ITA No 504/JP/2023, Jaipur Bench, order dated 28/11/2023, (d) CIT – 1982 Charitable Trust, ITA No: 827/Chny/2023, ITAT, Chennai Bench, 160 taxmann.com475. 6. In the instant appeal we find that the assessee trust has applied for final approval on 13/09/2023, after grant of provisional approval on 20/08 /2022, under clause (iv) of first proviso to section 80G(5) of the Act 61 , and respectfully following the views of the coordinate Bench , in the matter, we hold that the I.T.A. No.191/Asr/2024 Assessment Year: 2023-24 6 application filed by the assessee is within limitation period , and the order of the CIT(Exemption) , dated 7th March, 2024, is set aside, with a direction to decide the issue of registration u/s 80G of the Act in accordance with law from the date on which the assessee has made an application for permanent registration. 7. In the result, the appeal of the assessee bearing ITA No. 191/Asr/2024 is allowed for statistical purposes. Order pronounced in the open court on 28.06.2024 Sd/- Sd/- (Dr. M. L. Meena) (Udayan Das Gupta) Accountant Member Judicial Member AKV Copy of the order forwarded to: (1)The Appellant (2) The Respondent (3) The CIT (4) The CIT (Appeals) (5) The DR, I.T.A.T. True Copy By Order