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Judgment
PER MANISH AGARWAL, AM:
The captioned appeal is filed by the assessee against the order of the Learned Commissioner of Income Tax (Exemption), Lucknow [CIT(E), in short] dated 26.09.2025 rejecting the approval/registration sought u/s 80G(5) of the Income Tax Act, 1961 (hereinafter referred as ‘the Act’).
From the perusal of the order, it is observed that the assessee has filed Form 10AB for granting registration u/s 80G(5) which stood rejected, for the reason that the application was not filed under applicable section of the Act thus was treated as non-maintainable.
None appeared on behalf of the assessee however; ld. CIT DR supports the order of ld. CIT(E).
We have heard ld. CIT DR and perused the material available on record. It is observed that due an inadvertent error, the application for registration u/s 80G(5) was filed in form 10AB under sub-clause (B) of (iv) of first proviso to sub-section (5) of section 80G instead of under clause (iii) of first provision to sub-section (5) of section 80G of the Act. The ld. CIT(E) dismissed the application of the appellant as non-maintainable without giving any adverse findings on activities of the appellant society and further without providing an opportunity to rectify the mistake. Under similar circumstances, co-ordinate Bench of ITAT, Kolkatta in the case of Nitdaa Foundation vs. CIT reported in 167 taxmann.com 111 while allowing the appeal of the assessee observed as under :-
"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. The assessee shall file all necessary evidence before him."
Further, CBDT vide Circular No.7/2024 on 25.04.2024 vide para 4.1 provided that if the application was furnished under the wrong section or in wrong Form than it may furnish a fresh application in correct form within the extended time provided in the circular. Thus by respectfully following the decision of co-ordinate bench in the case of Nitdaa Foundation (supra) and considering the CBDT circular No. 7/2024 (supra) wherein the issue of mentioning wrong section is considered as a common & frequent error and further considering the fact that Ld. CIT, Exemption, Lucknow has not examined the details filed by the appellant on merits of the case, we deem it fit to set-aside the order passed by Ld. CIT, Exemption, Lucknow and remand the matter back to the file of ld. CIT(E), Lucknow with the directions to treat the application of the assessee as filed under clause (iii) of first proviso to sub-section (5) of section 80G and examine/verify the genuineness and activities of the appellant society from the details filed by the assessee for grant of approval u/s 80G(5) of the Act in accordance with law. Needless to say, assessee be provided reasonable opportunity of hearing. The assessee is also directed to produce the requisite information/documents in support of registration u/s 80G of the IT Act, otherwise Ld. CIT, Exemption, Delhi shall be at liberty to pass appropriate order as per law. Thus, the grounds of appeal raised by the assessee in this appeal are allowed for statistical purposes.
In the result, appeal of the assessee is allowed for statistical purposes.