ITAT allows appeal after assessee mistakenly selected wrong section code in Form 10AB application under section 80G(5)(iv)

The ITAT Ahmedabad allowed the assessee's appeal regarding denial of approval under section 80G(5)(iv). The assessee had inadvertently selected wrong section code while filing Form 10AB application. The tribunal found the case was covered under clause (ii) of first proviso to section 80G(5), not clause (iv), as the assessee already had prior approval that was expiring. The CIT(E) had incorrectly treated the application under sub-clause (B) of clause (iv) and rejected it for non-compliance. Following precedent, the ITAT remitted the matter back to CIT(E) with directions to consider the application under correct provision and grant approval if otherwise eligible.

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1. ISSUES PRESENTED and CONSIDERED

The core legal questions considered by the Appellate Tribunal (AT) in this appeal are:

• Whether the application for approval under section 80G(5)(iv)(B) of the Income Tax Act, 1961, filed by the assessee, was maintainable given the facts of the case.
• Whether the assessee's selection of sub-clause (iv) instead of sub-clause (ii) of the first proviso to section 80G(5) constituted a bona fide error and whether the application ought to be considered under the correct provision.
• Whether the Commissioner of Income Tax (Exemption) was justified in rejecting the application as non-maintainable based on the incorrect sub-clause selection and the prior exemption claims under sections 11 and 12 of the Act.
• Whether the delay of 109 days in filing the appeal should be condoned.

2. ISSUE-WISE DETAILED ANALYSIS

Delay in Filing the Appeal

Relevant legal framework and precedents: The Income Tax Act and relevant procedural rules allow for condonation of delay in filing appeals if sufficient cause is shown. The Tribunal exercises discretion based on the explanation provided.

Court's interpretation and reasoning: The assessee explained that the delay arose due to lack of familiarity with income tax procedures, inability to access the income tax portal, and late awareness of the rejection of approval. The Tribunal found these reasons to be bona fide and not mala fide.

Key evidence and findings: Affidavit explaining the delay, submission of bona fide reasons, and absence of any intention to delay the proceedings.

Application of law to facts: The Tribunal condoned the delay of 109 days in filing the appeal, considering the explanation satisfactory.

Treatment of competing arguments: The Departmental Representative (DR) submitted that delay condonation should be on merit; the Tribunal agreed and condoned the delay.

Conclusion: Delay in filing the appeal was condoned.

Maintainability of Application under Section 80G(5)(iv)(B)

Relevant legal framework and precedents: The first proviso to subsection (5) of section 80G of the Income Tax Act prescribes the conditions and timelines for filing applications for approval by charitable institutions or funds. Clause (iv) applies where activities have not commenced or commenced after the relevant previous year, while clause (ii) applies where approval is due to expire.

Court's interpretation and reasoning: The Tribunal examined the facts that the assessee's activities commenced on 17.02.1993, well before the application date of 26.02.2024. Therefore, clause (iv), which applies to institutions whose activities have not commenced or commenced recently, was not applicable. Instead, clause (ii), which applies to institutions with prior approval nearing expiry, was the correct provision.

Key evidence and findings: The assessee's admission that it had claimed exemption under sections 11 and 12 in previous years, and that it had prior approval under section 12AA, supported the conclusion that clause (ii) was applicable.

Application of law to facts: Since the application was filed under the wrong sub-clause (iv) instead of the correct sub-clause (ii), the rejection by the CIT(Exemption) on the ground of non-maintainability was based on a procedural error in the application form.

Treatment of competing arguments: The assessee contended that the selection of sub-clause (iv) was a bona fide error and requested reconsideration under sub-clause (ii). The DR agreed that the matter could be remitted for fresh consideration under the correct provision.

Conclusion: The Tribunal held that the assessee's application should be considered under clause (ii) of the first proviso to section 80G(5), and the rejection on the basis of clause (iv) was not justified.

Remand for Reconsideration under Correct Provision

Relevant legal framework and precedents: The Tribunal referred to a recent decision of the Mumbai Bench in Rotary Charity Trust vs CIT(E), which dealt with similar facts and legal questions regarding incorrect selection of sub-clauses under section 80G(5).

Court's interpretation and reasoning: Following the precedent, the Tribunal found merit in the assessee's claim of inadvertent error and directed remand to the CIT(Exemption) for fresh consideration of the application under clause (ii).

Key evidence and findings: The Tribunal relied on the assessee's submissions, the application form, and the prior approval status.

Application of law to facts: The Tribunal applied the legal principles from the proviso and precedent to correct the procedural error and ensure substantive justice.

Treatment of competing arguments: The DR's consent to remand was noted, and the Tribunal exercised its discretion to allow reconsideration.

Conclusion: The matter was remitted for fresh decision on merits under the correct provision.

3. SIGNIFICANT HOLDINGS

The Tribunal crystallized the following core principles and determinations:

"In the present case the assessee had filed its application on 26.02.2024 but its activities had commenced long back on 17.02.1993. Therefore, the clause (iv) of first proviso to sub-section (5) of section 80G of the Act was not applicable in its case. The assessee's case was covered in clause (ii) of first proviso to sub-section (5) of section 80G of the Act, as it was already allowed approval in the past which was going to expire."

"We are of the considered view that there is merit in claim of the ld. AR that the assessee had selected the wrong section code inadvertently while filing the application for approval in Form 10AB."

"We remit the issue back to the file of ld. CIT(E), with a direction to consider the application of the assessee as under Clause (ii) to first proviso to section 80G(5) of the Act, and thereafter grant approval accordingly, if assessee is otherwise found eligible."

In summary:

• The delay of 109 days in filing the appeal was condoned on the basis of bona fide reasons.
• The application for approval under section 80G(5)(iv)(B) was not maintainable as filed because the assessee's activities commenced long ago; thus, clause (iv) was inapplicable.
• The assessee had made a bona fide error in selecting sub-clause (iv) instead of sub-clause (ii) of the first proviso to section 80G(5).
• The Tribunal directed remand to the CIT(Exemption) for fresh consideration under the correct provision (clause (ii)) and grant of approval if otherwise eligible.

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