Itat/77/2024 Ia No: Ga/2/2024 Commissioner Of Income Tax (Exemptions), Kolkata v. West Bengal Welfare Society, Kolkata

OD–24 IN THE HIGH COURT AT CALCUTTA SPECIAL JURISDICTION (INCOME TAX)ORIGINAL SIDE ITAT/77/2024IA No: GA/2/2024COMMISSIONER OF INCOME TAX (EXEMPTIONS), KOLKATAVS.WEST BENGAL WELFARE SOCIETY, KOLKATA BEFORE : THE HON’BLE THE CHIEF JUSTICE T.S. SIVAGNANAMAndTHE HON’BLE JUSTICE HIRANMAY BHATTACHARYYADate : 26[th] April, 2024 Appearance :Ms. Smita Das De, Adv.…for appellant Mr. Abhratosh Majumder, Sr. Adv.Mr. Avra Mazumder, Adv.Mr. Arvind Agarwal, Adv.Mr. Giridhare Dhelia, Adv.Mr. Kausheyo Roy, Adv.Ms. Alisha Das, Adv.Mr. Suman Bhowmick, Adv.Mr. Samrat Das, Adv.Ms. Elina Dey, Adv.…for respondent The Court : This appeal filed by the revenue under Section 260A of the Income Tax Act, 1961 (the Act) is directed against the order dated 13[th]September, 2023 passed by the Income Tax Appellate Tribunal, `A’ Bench,Kolkata in I.T.A No. 730 & 731/Kol/2023 for the assessment year 2023-24. The revenue has raised the following substantial questions of law forconsideration : i) Whether on the facts and in the circumstances of the case the Tribunalwas justified in law to observe that the application for approval underSection 80G(5)(iii) of the said Act in Form 10AB was within the time limitdespite the fact the said application is required to be filed within sixmonths from the commencement of activities or six months prior to theexpiry of the period of provisional approval whichever is earlier ? ii) Whether on the facts and in the circumstances of the case the Tribunalwas justified in law to observe that the application was filed within thelimit despite the fact that the application was filed after expiry of sixmonths from the commencement of the activities i.e., the same was filedon 03.12.2022 wherein the activities commenced in the assessment year2020-21 ? iii) Whether on the facts and in the circumstances of the case the Tribunalwas justified in law in not appreciating the fact that there is strict timeline for filing application under Section 80G(5)(iii) and the CIT(E) has nopower to condone the delay in filing Form 10AB for making applicationunder Section 80G(5)(iii) of the said Act ? We have heard Ms. Smita Das De, learned standing Counsel appearing forthe appellant and Mr. Abhratosh Majumder, learned senior Counsel for therespondent/assessee. The short question which falls for consideration is whether the Tribunalwas justified in allowing the assessee’s appeal and directing registration to begranted under Section 80G(5) of the Act and thereby setting aside the orderpassed by the Commissioner of Income tax (Customs), Kolkata, [C.I.T (Customs)]dated 27[th] June, 2023. Before we examine the other issues, it needs to be pointed out that in theimpugned order the Tribunal has restored the matter to the C.I.T (Customs) for adecision afresh on merits of the application filed for filing registration underSection 12A of the Act. On such remand being made to the authority, now therespondent assessee has been granted 12-year registration. Therefore, in ourview, the present issue has virtually become academic. That apart, we also takenote of the recent Circular issued by the Central Board of Direct Tax beingCircular No.7 of 2024, dated 25.4.2024, extending the due date for filing Form10A and 10AB of the Act. In Clause 4.1 of the said Circular, it has been stated,in case where any trust, institution or fund has already made an application inForm No. 10AB, and where the Principal Commissioner or Commissioner haspassed an order rejecting such application, on or before issuance of thisCircular, solely on account of the fact that the application was furnished afterthe due date or that the application has been furnished under the wrong sectioncode, it may furnish a fresh application in Form No. 10AB within the extendedtime provided in paragraph 3(ii) i.e. 30.06.2024. That apart, on facts the learned Tribunal has found that assessee wasgranted provisional approval on 30[th] November, 2022; the assessee applied for That apart, on facts the learned Tribunal has found that assessee wasgranted provisional approval on 30[th] November, 2022; the assessee applied for final registration under clause (iii) of first proviso to Section 80G(5) of the Act.Therefore, the Tribunal held that the proviso is to be read that after the grant ofprovisional registration, if the assessee has not commenced its activities, he mayapply for registration within six months of the commencement of this activity orwithin six months prior to the expiry of the period of provisional approval,whichever is earlier. The learned Tribunal rightly noted that in any case theassessee is eligible to apply for final registration only after grant of provisionalapproval. Thus, considering the factual position, the learned Tribunal rightlygranted the relief in favour of the respondent/assessee. Thus, we find noquestions of law, much less substantial questions of law, arising forconsideration. The appeal is thus dismissed. The stay application IA No: GA/2/2024 also stands dismissed. (T.S. SIVAGNANAM)CHIEF JUSTICE (HIRANMAY BHATTACHARYYA, J.)