Swachh Vapi Mission Trust, Vapi V. Commissioner of Income Tax(Exemption), Ahmedabad

ITA 583/SRT/2023

• Counselvise Citation: [2024] 130 COUNSELVISE.COM (IT) 3847 (ITAT-SURAT)
• Duration Of Justice: 6 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-03-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 06-03-2024
• Assessment Year: misc
• Appeal Filed On: 23-08-2023
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAVIKANT GUPTA
• Assessee Lawyers: HARDIK VORA
• Keywords: Condonation of delay; Set aside; Question of law; Capital Gains; Charitable institution
• Section: 119; 195; 11; 12A; 10; 80G

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JM & DR. A. L. SAINI, AM आयकर अपील सं./ITA No.583/SRT/2023 (Virtual Hearing) Swachh Vapi Mission Trust, Hitenkumar Manubhai Bhat, Plot No. C5/27, B/h Panchratna Complex, 1 st Floor, Nr. GIDC 4 Rasta, Vapi – 396170, Gujarat Vs. The CIT(Exemption), Ahmedabad èथायीलेखासं./जीआइआरसं./PAN/GIR No.: ABBTS5084N (Appellant) (Respondent) Appellant by Shri Hardik Vora, AR Respondent by Shri Ravi Kant Gupta, CIT(DR) Date of Hearing 07/03/2024 Date of Pronouncement 11/03/2024 आदेश / O R D E R PER DR. A. L. SAINI, AM: Captioned appeal filed by the assessee, is directed against the order passed by the Learned Commissioner of Income Tax (Exemption), Ahmedabad, [in short “the ld. CIT(E)”], wherein the ld. CIT(E) rejected the application filed by the assessee in Form No.10AB, u/s 80G(5) of the Income Tax Act, (in short ‘the Act’) vide order dated 28.06.2023. 2. The grounds of appeal raised by the assessee are as follows: “1. On the facts and circumstances of the case as well as law on the subject, the learned Commissioner of Income Tax (Exemption) has erred in rejecting application for registration u/s 80G(5) of the Act. 2. On the facts and circumstances of the case as well as law on the subject, the learned Commissioner of Income Tax (Exemption) has erred in rejecting application for registration u/s 80G(5) without considering that the application was filed within six months of commencement of activities as per clause (iii) of first proviso to sub-section 5 of section 80G. 2 ITA Nos.583/SRT/2023 Swachh Vapi Mission Trust 3. On the facts and in circumstances of the case as well as law on the subject, the learned Commissioner of Income Tax (Exemption) has erred in not considering that the date of commencement of activities is 07.11.2022 when the agreement was entered to pursue the objectives of the Trust. 4. On the facts and circumstances of the case as well as law on the subject, the learned Commissioner of Income Tax (Exemption) has erred in rejecting application for registration u/s 80G(5) without considering the issues on merits. 5. Alternatively, on the facts and in circumstances of the case as well as law on the subject, the learned Commissioner of Income Tax (Exemption) has erred in not condoning the delay 6. Appellant craves leave to add, alter or delete any ground(s) either before or in the course of hearing of the appeal.” 3. The relevant material facts, as culled out from the material on record, are as follows: An application for approval of the trust under clause (iii) of first proviso to sub-section (5) of section 80G of the I.T. Act, 1961 was filed by the assessee in Form No.10AB, on 02.012.2022. From perusal of details filed by the assessee it is observed by ld CIT(E), that the assessee has filed Form 10AB, under section 80G(5) of the Act, on 02/12/2022. From Para 4b of the said Form 10AB filed, it was observed that the assessee has mentioned the date of incorporation /creation/registration as 15/03/2021. Further, the applicant had been granted order for provisional approval in Form No. 10AC issued on 06/04/2022 under Clause (iv) of first proviso to sub-section (5) of section 80G for the period commencing from 06/04/2022 to AY 2025- 26. Since, the assessee has filed the present application in Form No.10AB, u/s 80G(5) of the Act, so ld CIT(E ) has analysed the provisions of section 80G(5) of the Act, as it stands today, which stipulates as under: “Provided that the institution or fund referred to in clause (vi) shall make an application in the prescribed form and manner to the Principal Commissioner or Commissioner, for grant of approval,— 3 ITA Nos.583/SRT/2023 Swachh Vapi Mission Trust (i) where the institution or fund is approved under clause (vi) [as it stood immediately before its amendment by the Taxation and Other Laws (Relaxation and Amendment of Certain Provisions) Act, 2020], 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 the Finance Act 2023, w.e.f. 01/10/2023 and prior to said substitution, the said sub-clause (iv) of first proviso to sub-section (5) of section 80G of the Act read as under. (iv) in any other case, at least one month prior to commencement of the previous year relevant to the assessment year from which the said approval is sought:,” 4. From the above, the ld CIT(A) noted that it is evident that the provisions of section 80G(5) of the Act, prescribed various time limit within which the assessee is required to file application for approval of Trust/Institution/Fund depending upon the various circumstances mentioned therein. In the present case, the assessee is Provisionally approval u/s 80G(5) of the Act as applicable from 01/04/2021 and therefore the assessee was required to file application in Form No. 10AB under clause (iii) of first proviso to sub-section (5) of section 80G of the Act, within the time period of at least six months prior to 4 ITA Nos.583/SRT/2023 Swachh Vapi Mission Trust expiry of period of the provisional approval or within six months of commencements of its activities, whichever is earlier. From the provisions of section 80G(5) 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 filing application in Form No. 10AB. The said legal position further gets fortified by the fact that the CBDT on multiple occasions had extended the time limit in filing the application in Form No. 10A and/or 10AB as under: a. The CBDT vide Circular No. 12 of 2021 dated 25.06.2021 in exercise of its power u/s 119 of the Act, provided relaxation for various compliances, including making application u/s 10(23C), 12AB, 35(1)(ii)/(iia)/(iii) and 80G of the Act in Form No.10A /10AB, for registration/provisional registration / intimation / approval / provisional approval of Trusts/ Institutions/Research Associations etc, which were required to be made on or before 30 th June 2021 was allowed to be made/filed on or before 31 st August 2021. b. Thereafter, the CBDT vide Circular No. 16/2021 dated 29 th August 2021, further extended the date of filing of Form 10A u/s 10(23C), 12A, 35(1)(ii)/(iia)/(iii) or 80G, which was required to be filed on or before 30 th June 2021 upto 31 st March 2022 and similarly for application for registration or approval u/s 10(23C), 12A or 80G of the Act in Form 10AB, for which the last date for filing falls on or before 28 th February, 2022 may be filed on or before 31 st 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 29 th September, may be filed on or before 30 th 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 30.09.2023 where the due date for making such application has expired prior to such date." 5 ITA Nos.583/SRT/2023 Swachh Vapi Mission Trust 5. From the above, ld CIT(E) noted that it is evident that the time limit prescribed u/s 80G of the Act for filing Form No.10A and 10AB, as the case may be is mandatory and therefore, after considering the hardship to the assessee, the CBDT extended the said time limit on multiple occasions, for filing Form No. 10A and 10AB, u/s 119 of the Act, vide above referred Circulars. As per above referred CBDT Circular No. 8/2022 dated 31/03/2022, the assessee, whose last date for filing Form No. 10AB for registration/approval under section 10(23C), 12A or 80G of the Act was falling on or before 29 th September, 2022, was extended upto 30 th September, 2022. Thereafter, in order to mitigate the genuine hardship, the CBDT vide Circular No. 6/2023 dated 24/05/2023, further extended the due date for filing Form No. 10AB for registration 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 30.09.2023. However, no further extension for delay in filing Form No. 10AB, under clause (iii) of the first proviso to sub-section (5) of section 80G has been granted by the CBDT and the same is evident from the CBDT Circular No. 6/2023 dated 24/05/2023. In view of the above, during the present proceedings, the assessee vide notice/letter dated 14/04/2023 was specifically requested to State the date of commencement of activities [refer clause (iii) of first proviso to section 80G(5)] and attach relevant documents in support. 6. In response to the above notice, the assessee vide submission filed electronically on 02/05/2023, the assessee has submitted that date of commencement of activities is 07/11/2022. In view of the same, vide notice dated 08/06/2023, the assessee was intimated that, they had 6 ITA Nos.583/SRT/2023 Swachh Vapi Mission Trust received donations/other income as well as shown application of funds towards the objects of the trust/other expenses in the Income & Expenditure account of financial year ( FY) 2021-22. And apparently they have not filed the present application u/s 80G(5) of the Act in Form No.10AB, within the due date mentioned in the section 80G(5) of the Act and therefore, the assessee was requested to explain as to why the present application filed in sec 80G(5) in Form No.10AB should not be treated as not 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 fund referred to in clause (vi) shall make an application in the prescribed form and manner to the Principal Commissioner or Commissioner, for grant of approval,— (i) (ii) (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)......” 3) Our Trust was formed on 15/03/2021 and in the subsequent year the Trust had made the payment towards Advocate Fees in connection with its 7 ITA Nos.583/SRT/2023 Swachh Vapi Mission Trust formation expenses and other general expenses out of donations obtained in this regard. The particulars of the expenses are enclosed herewith. 4) Thereafter, in order to pursue its objectives the trust has entered into Service Agreement on 07/11/2022 for E Waste Management with Akrishyam Recyclers. Copy of the same is attached herewith. 5) Thereafter, we filed the Form 10AB on 02/12/2022. 6) Your honour has rightly observed that the Trust had received donation and had shown application of the funds towards the object of the Trust. However, as stated above, the trust received the Donations in order to make the payments to Advocate towards its formation and incidental and general expenses. In the given facts, with reference to the receipt of donation to meet out its expenses it cannot be said that the trust has commenced its activities. 7) The said provisions of Section 80G has not defined the meaning of Commencement of activities. Hence, in the given facts, 07/11/2022 should be treated as the date on which the Trust has actually taken steps for pursuing the Objective. Hence, in the given facts, it is submitted that our trust has field the application in Form 10AB, which is on 02/12/2022, well within the due date, i.e. within Six months of the date of commencement of activities. 8) In the given facts and considering the provisions of Clause (iii) of First Proviso to sub-section 5 of Section 80G, your honour is requested to treat our present application in Form 10AB as filed well within the due date and same is maintainable and grant us Regular Approval and oblige." 8. However, the ld CIT(E ) rejected the contention of the assessee and observed that the assessee has submitted copy of its account for F.Y.2021-22 and from perusal of same, it was observed that the assessee in the Income & Expenditure 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 8 ITA Nos.583/SRT/2023 Swachh Vapi Mission Trust 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 commencement of activities. Hence, trust has field the application in Form 10AB, on 02/12/2022, which is well within the due date, i.e. within Six months of the date of commencement of activities, hence there is no any delay in filing application in Form No.10AB under section 80G(5) (iii) of the Act, hence ld Counsel prays the bench that ld CIT(E ) may be directed to grant the approval under section 80G(5) (iii) of the Act. 11. In alternative argument, ld Counsel submitted that if the Tribunal considers delay in filing the application in Form 10AB under section 80G(5)(iii) of the Act, then the same may be condoned, as the Tribunal has power to condone the delay, and the ld. CIT(E) may be directed by the Tribunal to adjudicate the issue afresh on merit. 12. We have heard both the parties and carefully gone through the submissions put forth on behalf of the assessee along with the documents furnished and the case laws relied upon, and perused the 9 ITA Nos.583/SRT/2023 Swachh Vapi Mission Trust facts of the case including the findings of the ld. CIT(E) and other material brought on record. We note that the issue under consideration, is covered by the order of Co-ordinate Bench in the case of Vananchal Kelavani Trust vs. CIT(E), in ITA No.728/SRT/2023, dated 09.01.2024, wherein it was held as follows: “13. We have heard the rival contentions, perused the material on record and duly considered facts of the case in the light of the applicable legal position. We note that in the latest Circular No.6/2023 dated 24.05.2023, the date was not extended by the CBDT, so far as, filing of Form No. 10AB, u/s 80G(5)(iii) of the Income Tax Act, 1961, is concerned. 14. We note that the extended period, as per Circular No.8/2022, as extended period declared by the Central Board of Direct Taxes (CBDT) is, on or before 30.09.2022, which has also expired, in the assessee`s case under consideration. However, after this Circular No.8/2022, the CBDT has issued another Circular No.6/2023 dated 24.05.2023 wherein in para-5, the CBDT has instructed as follows: “5. In order to mitigate genuine hardship in such cases, the Board, in the exercise of the power under section 119 of the Act, extends the due date of making an application in,- (i) Form No.10A, in case of an application under clause (i) of the first proviso to clause (23C) of section 10 or under sub-clause (i) of clause (ac) of sub-section (1) of section 12A or under 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: 10 ITA Nos.583/SRT/2023 Swachh Vapi Mission Trust (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 29 th September, 2022, may be filed on or before 30 th September, 2022.” 16. Thus, in the Circular No.8/2022 dated 31.03.2022, cited above, there is mention about Section 80G of the Act (in form No. 10AB) for registration or approval and extended date is mentioned as 30.09.2022. However, in the latest Circular No.6/2023 dated 24.05.2023, the CBDT did not clarify or did not mention about the extension of the time limit for Section 80G (5) of the Act, (in form No. 10AB). Therefore in the situation, it is difficult to interpret clause (iii) the 3 rd proviso of Section 80G(5) of the Act, which states as follows: “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.” Therefore, it is undue hardship to the assessee, as the CBDT, in the latest Circular No.6/2023 dated 24.05.2023, about application for registration or approval under Section 80G, in form No. 10AB, did not mention the extended period. Thus, we find merit in the submission of ld Counsel to the effect that assessee is an old trust, which had registered on 29.11.2001 and commenced its activities from 2001, therefore, it is impossible to file the application u/s 80G(5) (iii) of the Act, “within six months of commencement of its activities’ as stated in above clause (iii) of 3 rd proviso of section 80G(5) of the Act. Besides, as per circular No.8/2022 of CBDT dated 31.03.2022, the extended time is up to 30.09.2022, however, the assessee filed Form No.10AB, u/s 80G(5) (iii) on 24.02.2023, therefore, application filed by the assessee before the ld CIT(E) is delayed by 147 days (approx.), and hence ld CIT(E) rejected application of assessee in Form No.10AB, u/s 80G(5) (iii) of the Act, as not maintainable and also cancelled the provisional approval granted in Form No.10AC, under clause (iv) of first proviso to sub-section (5) of section 80 G of the Act. 17. Therefore, in this ambiguity situation in circular No.8/2022 of CBDT dated 31.03.2022 and latest Circular No.6/2023 dated 24.05.2023, of the CBDT, we do not have any option but to condone the delay in filing application in Form No.10AB, u/s 80G(5) of the Act. We note that Co- ordinate Bench of Jodhpur in the case of Bhamashah Sundarlal Daga Charitable Trust vs. CIT(Exemption) in ITA No.278/JODH/2023 dated 10.11.2023 dealt with the issue of clause-(iii) 3 rd 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: 11 ITA Nos.583/SRT/2023 Swachh Vapi Mission Trust 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 Trust/institutions. For the existing Trust/Institution, the time limit for applying for Regular Registration is within six months of expiry of Provisional registration if they are applying under sub clause (iii) of the Proviso to Section 80G(5) of the Act. This will be the harmonious interpretation. 11. If we agree with the interpretation of the ld.CIT(E), then say a trust which was formed in the year 2000, performed charitable activities since 2000, but did not applied for registration u/s.80G, the said trust will never be able to apply for registration now. This in our opinion is not the intention of the legislation. This interpretation leads to absurd situation. 11.1 In this context, we will like to refer to observations of the Hon’ble Supreme Court in the case of K P Varghase(supra), where in Hon’ble SC observed as under : Quote, “It is a well-recognised rule of construction that a statutory provision must be so construed, if possible, that absurdity and mischief may be avoided. There are many situations where the construction suggested on behalf of the revenue would lead to a wholly unreasonable result which could never have been intended by the Legislature. Take, for example, a case where A agrees to sell his property to B for a certain price and before the sale is completed pursuant to the agreement and it is quite well known that sometimes the completion of the sale may take place even a couple of years after the date of the agreement - the market price shoots up with the result that the market price prevailing on the date of the sale exceeds the agreed price at which the property is sold by more than 15 per cent of such agreed price. This is not at all an uncommon case in an economy of rising prices and in fact we would find in a large number of cases where the sale is completed more than a year or two after the date of the agreement that the market price prevailing on the date of the sale is very much more than the price at which the property is sold under the agreement. Can it be contended with any degree of fairness and justice that in such cases, where there is clearly no understatement of consideration in respect of the transfer 12 ITA Nos.583/SRT/2023 Swachh Vapi Mission Trust and the transaction is perfectly honest and bona fide and, in fact, in fulfillment of a contractual obligation, the assessee who has sold the property should be liable to pay tax on capital gains which have not 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-while, the market price has shot up and exceeds the agreed price by more than 15 per cent. Many other similar situations can be contemplated where it would be absurd and unreasonable to apply section 52(2) according to its strict literal construction. We must, therefore, eschew literalness in the interpretation of section 52(2) and try to arrive at an interpretation which avoids this absurdity and mischief and makes the provision rational and sensible, unless of course, our hands are tied and we cannot find any escape from the tyranny of the literal interpretation. It is now a well-settled rule of construction that where the plain literal interpretation of a statutory provision produces a manifestly absurd and unjust result which could never have been intended by the Legislature, the Court may modify the language used by the Legislature or even 'do some violence" to it, so as to achieve the obvious intention of the Legislature and produce a rational construction -” Unquote. 11.2 Thus, as observed by Hon’ble Supreme Court, that the statutory provision shall be interpreted in such a way to avoid absurdity. In this case to avoid the absurdity as discussed by us in earlier paragraph, we are of the opinion that the words, “within six months of commencement of its activities” has to be interpreted that it applies for those trusts/institutions which have not started charitable activities at the time of obtaining Provisional registration, and not for those trust/institutions which have already started charitable activities before obtaining Provisional Registration. We derive the strength from the Speech of Hon’ble Finance Minister and the Memorandum of Finance Bill 2020. 11.3 Therefore, in these facts and circumstances of the case, we hold that the Assessee Trust had applied for registration within the time allowed under the Act. Hence, the application of the assessee is valid and maintainable. 13 ITA Nos.583/SRT/2023 Swachh Vapi Mission Trust 12. Even otherwise, the Provisional Approval is uptoA.Y.2025-26, and it can be cancelled by the ld.CIT(E) only on the specific violations by the assessee. However, in this case the ld.CIT(E) has not mentioned about any violation by the Assessee. Therefore, even on this ground the rejection is not sustainable. 13. However, the ld.CIT(E) has not discussed whether the Assessee fulfils all other conditions mentioned in the section as he rejected it on technical ground. 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 3 rd proviso of section 80(5), “where the institution or fund has been provisionally approved, at least six months prior to expiry of the period of the provisional approval..” has not been adjudicated. 19. Now the next question before us is that whether Tribunal has power to condone the delay in filing the Form No.10AB, u/s 80G(5) of the Act. The Tribunal is a final fact finding authority, and based on the assessee`s facts and undue hardship created by the clause (iii) of 3 rd proviso of section 80(5) of the Act, the Tribunal may condone the delay in filing the Form No.10AB, u/s 80G(5) of the Act. Therefore, we are of the view that delay in filing the Form No.10AB, u/s 80G(5) should be condoned in the interest of justice. For that we rely on the judgment of Hon’ble Delhi High Court in the case of DCIT(Exemption) vs. Vishwa Jagriti Mission [2013] 30 taxmann.com 41 (Delhi)/[2013] 213 Taxman 65 (Delhi), wherein the Hon’ble Delhi High Court held as follows: “18. The main question that falls for our consideration is whether the Tribunal was justified in condoning the delay in the filing of the application for registration under section 12A of the Act and whether the view taken by the Tribunal is perverse. The question whether there was sufficient cause for the delay is always a question of fact as has been held by two Division Bench judgments of this Court: (i) CIT v. Parma Nand [2004] 266 ITR 255/135 Taxman 100 (Delhi) and (ii) CIT v. ITOCHU Corpn. [2004] 268 ITR 172/139 Taxman 348 (Delhi). 14 ITA Nos.583/SRT/2023 Swachh Vapi Mission Trust The Tribunal has, in an elaborate order in which all the facts and the rival submissions have been taken into consideration, held that there was sufficient cause for the delay on the part of the assessee-society in making the applications for registration under section 12A and 80G of the Act. It is not necessary, nor is it proper, for us to decide the culpability or otherwise of A.K. Sikri who was the Treasurer of the assessee-society. All that we need to examine is whether the Tribunal had valid materials before it on the basis of which it could have reasonably come to the conclusion that the assessee- society was prevented by sufficient cause in applying for the registration in time. It is manifest from a fair reading of the order of the Tribunal that it had weighed the circumstances in which the assessee-society was placed and the action it took immediately on receipt of the complaint from M.P. Mansinghka Trust of Mumbai; it has referred to the confession of Sikri in the meeting of the governing body owning up 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 mis- representation, 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 mis- representations of Sikri that the assessee-society was led to believe that appropriate applications under the Act were already filed with the income tax authorities for registration. The assessee-society was thus under the belief, though mistaken but honest, that there was no delay and once it came to know on 06.12.2005 about the irregularities on a complaint from M.P. Mansinghka Trust of Mumbai and on further enquiry conducted on 14.12.2005 by the governing body, it hastened to take remedial action by filing applications for registration both under section 12A and 80G of the Act, which were followed up by another set of applications filed directly with the DIT (Exemptions) on 21.12.2005; these applications were obviously delayed and the condonation application was filed on 14.03.2006 narrating the events that led to the delay. 19. In the above circumstances, it seems to us that the Tribunal has acted judicially, taking note of all the facts and circumstances including probabilities of the case. In Esthuri Aswathiah v. CIT [1967] 66 ITR 478 (SC), the Supreme Court outlined the duties of the Tribunal in the following words: - "The function of the Tribunal in hearing an appeal is purely judicial. It is under a duty to decide all questions of fact and law raised in the appeal before it: for that purpose it must consider whether on the materials relied 15 ITA Nos.583/SRT/2023 Swachh Vapi Mission Trust upon by the assessee his plea is made out. Conclusive proof of the claim is not predicated: the Tribunal may act upon probabilities, and presumptions may supply gaps in the evidence which may not, on account of delay or the nature of the transactions or for other reasons, be supplied from independent sources. But the Tribunal cannot make arbitrary decisions: it cannot found its judgment on conjectures, surmises or speculation. Between the claims of the public revenue and of the taxpayers, the Tribunal must maintain a judicial balance." In Udhavdas Kewalram v. CIT [1967] 66 ITR 462 (SC) the very same Bench of three judges of the Supreme Court again observed as under: - "The Income-tax Appellate Tribunal performs a judicial function under the Indian Income-tax Act: it is invested with authority to determine finally all questions of fact. The Tribunal must, in deciding an appeal, consider with due care all the material facts and record its finding on all the contentions raised by the assessee and the Commissioner in the light of the evidence and the relevant law ......................................The Tribunal was undoubtedly 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 ITR 471 it was observed as follows: - "The Legislature has conferred the power to condone delay by enacting section 5 of the Limitation Act of 1963 in order to enable the courts to do substantial justice to parties by disposing of matters on the merits". The expression "sufficient cause" employed by the Legislature is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice that being the life-purpose of the existence of the institution of courts. It is common knowledge that this court has been making a justifiably liberal approach in matters instituted in this court. But the message does not appear to have percolated down to all the other courts in the hierarchy." 16 ITA Nos.583/SRT/2023 Swachh Vapi Mission Trust 22. The following general principles were laid down and it is these principles which guide the Court in approaching the question of condonation of delay: - "And such a liberal approach is adopted on principle as it is realized that: 1. Ordinarily, a litigant does not stand to benefit by lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this, when delay is condoned, the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. "Every day's delay must be explained" does not mean that a pedantic approach should be made. Why not every hour's delay, every second's delay? The doctrine must be applied in a rational, common sense and pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred, for the other side cannot claim to have vested right in injustice being done because of a non-deliberate delay. 5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact, he runs a serious risk. 6. It must be grasped that the judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so." 23. In N. Balakrishnan v. M. Krishnamurthy [1998] 7 SCC 123 the Supreme Court again reiterated 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 17 ITA Nos.583/SRT/2023 Swachh Vapi Mission Trust Ltd. v. CIT [1957] 31 ITR 28. In that judgment, it was noted that only a question of law can be referred for decision of the Court and the decision of the Tribunal on a question of fact can be challenged only if it is not supported by any evidence, or is unreasonable or perverse. The following pithy observations of T.L. Venkatarama Aiyar, J. speaking for the Court are relevant: - " ....................... The point for decision is whether there arises out of the order of the Tribunal any question which can be the subject of reference under section 66 (1) of the Act Under that section, it is only a question of law that can be referred for decision of the Court, and it is impossible to argue that the conclusion of the Tribunal is anything but one of fact. It has been held on the corresponding provisions in the English Income-tax statutes that a finding on a question of fact is open to attack as erroneous in law only if it is not supported by any evidence, or if it is unreasonable and perverse, but that where there is evidence to consider, the decision of the Tribunal is final even though the Court might not, on the materials, have come to the same conclusion if it had the power to substitute its own judgment. In Great Western Railway Co. v. Bater (1), Lord Atkinson observed: "Their (Commissioners') determinations of questions of pure fact are not to be disturbed, any more than are the findings of a jury, unless it should appear that there was no evidence before them upon which they, as reasonable men, could come to the conclusion to which they have come: and this, even though the Court of Review would on the evidence have come to a conclusion entirely different from theirs." There is no need to further elaborate this position, because the law as laid down in these observations is well settled, and has been adopted in the construction of section 66 of the Act." 25. This view was reiterated by the Supreme Court in CIT v. Daulatram Rawatmull [1964] 53 ITR 574 where it was held that "if there is some evidence to support the finding recorded by the Tribunal, even if it appears to the High Court that on re-appreciation of the evidence, it might arrive at a conclusion different from that of the Tribunal" the High Court has no power to interfere with the findings of the Tribunal. These decisions were applied by a Division Bench of this Court in CIT v. Baba Avtar Singh[1972] 83 ITR 738 where it was observed as under: - "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 18 ITA Nos.583/SRT/2023 Swachh Vapi Mission Trust 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 accordingly dismissed with no order as to costs.” 20. Respectfully following the judgement of the Hon’ble Delhi High Court in the case of Vishwa Jagriti Mission (supra), wherein the delay in filing application for registration u/s 12A, was allowable / condoned, hence, we condone the delay in filing Form10AB, u/s 80G(5), and remit the matter back to the file of Ld.CIT(E) with the direction to decide the application of assessee, in accordance with law. The assessee is also directed to file 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 to be allowed.” 13. We note that assessee claimed to start activities on 02.05.2023, and the same was rejected by ld CIT(E ), as per the reasons given in the facts of the assessee`s trust above, which we do not repeat the same for the sake of brevity. We also confirm the findings of ld CIT(E ) on the same. 14. However, Tribunal has power to condone the delay. We note that application was filed by the assessee on 02.12.2022. However, as per CBDT circular No.8/2022 application in Form No.10AB, u/s80G(5)(iii) of the Act, should have been filed by assessee on or before 30.09.2022, hence there is delay in filing the appeal. Respectfully following the order of Co-ordinate Bench in the case of Vananchal Kelavani Trust vs. CIT(E), in ITA No.728/SRT/2023, dated 09.01.2024 (supra), we condone the delay. Therefore, we deem it fit and proper to set aside the order of the ld. CIT(E) and remit the matter back to the file of the ld. CIT(E) to adjudicate the issue, pertaining to filing in Form No.10AB, u/s 80G(5) (ii) of the Act, afresh on merits. The assessee is also directed to file the relevant details and documents, before ld CIT(E), as and 19 ITA Nos.583/SRT/2023 Swachh Vapi Mission Trust when required by ld CIT(E). For statistical purposes, the appeal of the assessee is treated as allowed. 15. In the result, the appeal filed by the assessee is allowed for statistical purposes. Order is pronounced on 11/03/2024 in the open court. Sd/- Sd/- (PAWAN SINGH) (Dr. A.L. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER lwjr /Surat Ǒदनांक/ Date: 11/03/2024 SAMANTA Copy of the Order forwarded to 1. The Assessee 2. The Respondent 3. The CIT(A) 4. CIT 5. DR/AR, ITAT, Surat 6. Guard File By Order // TRUE COPY // Assistant Registrar/Sr. PS/PS ITAT, Surat