Discover the challenges faced by early birds in complying with the 80G registration procedures under the new scheme of exemption for charitable institutions. Get insights into the transition from provisional to regular registration, timelines for Form 10A and Form 10AB, and the doctrine of impossibility. Stay informed about the extended due dates by the Central Board of Direct Taxes and the impact on charitable trusts or institutions seeking 80G exemption. Learn how the intention of the government aims to enhance tax compliance for charitable entities.

Early Bird missed the Flight while complying 80G Registration procedures under New Scheme of Exemption framework of Charitable Institutions.

Provisional Registration to Regular Registration

Finance Act 2020 has rationalized the provisions relating to charitable trusts or institutions wherein the concept of one-time registration was replaced with renewal registration. Further, the new trusts or institutions shall be provisionally approved or registered for period of 3 years from date of application. Subsequently, the new trusts or institutions should apply for regular registration.

The said procedure of provisional registration to regular registration are inter alia applicable for new trusts or institutions seeking registration under Section 10(23C),12AB and 80G(5) of the Income tax Act.

In this article we wish to explain the same in brief with relevant provisions of the 80G(5) of Income Tax Act.

S.no Particulars Remarks
1 Form 10A As per Rule 11AA, the new trusts or institutions applying for provisional registration are required to file application in Form 10A to the Principal Commissioner or Commissioner for registration of trust or institution.
2 Form 10AC On receipt of an application in Form 10A, the Principal Commissioner or Commissioner shall pass an order in writing granting provisional registration inter alia under clause (iii) of the second proviso read with third proviso of sub-section (5) of section 80G in Form 10AC and issue a sixteen-digit alphanumeric unique registration number (URN) to the applicants.

The provisional registration shall be valid for period of 3 years from the assessment year from which registration is sought.

3 Form 10AB As per Rule 11AA read with Section 80G(5), the new trusts or institutions after obtaining provisional registration shall make an application in Form 10AB, within 6 months before the expiry of the period of the provisional registration or within six months of the commencement of its activities whichever is earlier for regular registration.
4 Form 10AD On receipt of application in Form 10AB for registration under section 80G(5), the Principal Commissioner or Commissioner shall pass an Order in Form 10AD, either Granting or Cancelling the registration.

Timelines for extension of due dates – Form 10A & Form 10AB:

The Central Board of Direct Taxes has extended the due dates for filing Form 10A and Form 10AB which are tabulated as under:

Particulars

Circulars extending due dates
Form 10A
Particulars Remarks
Circular No.12/2021 dated 25.06.2021 Due date for filing Form 10A extended to 31.08.2021
Circular No.16/2021 dated 29.08.2021 Due date for filing Form 10A extended to 31.03.2022
Circular No.22/2022 dated 01.11.2022 Due date for filing Form 10A extended to 25.11.2022

 

Form 10AB
Particulars Remarks
Circular No.08/2022 dated 31.03.2022 Due date for filing Form 10AB extended to 30.09.2022

The new trusts or institutions seeking registration under Section 80G(5) are liable to file Form 10A for provisional registration followed by Form 10AB for regular registration. Without filing Form 10A, the new trusts or institutions cannot apply for regular registration directly by filing Form 10AB. In other words, Form 10AB is co-terminus with Form 10A and the same cannot be filed on standalone basis.

In the above-mentioned timelines, the Central Board of Direct Taxes has initially extended the due dates for filing Form 10A and Form 10AB as per the provisions of Income tax act i.e. minimum time gap of 6 months between Form 10A and Form 10AB.

Form 10A Form 10AB
Circular No.16/2021 dated 29.08.2021 extended due date for filing Form 10A to 31.03.2022 Circular No.08/2022 dated 31.03.2022 extended due date for filing Form 10AB to 30.09.2022 (within 6 months from filing of Form 10A)

As mentioned earlier, the Central Board of Direct taxes vide Department Circular No.22/2022 dated 01.11.2022 has extended the due date for filing Form 10A to 25.11.2022 on standalone basis without correspondingly extending the due dates for filing Form 10AB. Due to this mismatch, the new trusts or institutions were constrained to file Form 10AB within the extended due dates. The administrative procedures laid down by the department cannot compel the assessee to do impossibilities.

Doctrine of Impossibility- The law does not compel doing of impossibilities.

The maxim “Lex non Cogit Ad impossibilia” is of the Latin origin. It means the law does not compel a man to do anything vain or impossible or to do something which he cannot possibly perform.

This maxim is one of the important pillars of doctrine of necessity which along with another maxim “Impotentia excusat legam” propagates that when law creates a duty or charge and the party is disabled to perform it, without any default in him, and has no remedy over it, then the law in general will excuse him.

In the case of State of Rajasthan v. Shamsher Singh (AIR 1985 SC 1082) it was argued before the Hon’ble Apex Court that however mandatory the provision may be, where it is impossible of compliance that would be a sufficient excuse for non-compliance, particularly when it is question of time factor.

Further, the Supreme Court in the case of State of MP v. Narmada Bachao Andolan [2011] 7 SCC 639, applied this maxim and held that thus, where the law creates a duty or a charge and the party is disabled to perform it without any fault on his part and has no control over it, the law will in general excuse him.

Thus, it is well-settled law that an obligation gets discharged due to impossibility of performance. The law of impossibility of performance does not necessarily require absolute impossibility, but also encompass the concept of severe impracticability.

In the present case due to non-extension of Form 10AB time limit by the department corresponding to Form 10A time limit, few Assesses were unable to file Form 10AB within the extended due date.

The benefit of extended due date of 25th November 2022 shall mutatis mutandis applicable to partial compliant also:

The department has extended due date to 25th November 20222 for totally noncompliant trusts or institutions who did not file 10A till 31st March 2022 . In some cases partial compliants (who already filed 10A before 31st March 2022)did not file form 10AB for reasons beyond their control and therefore Department sought to deny 80G Exemption purely on technical grounds .It is harsh and cause avoidable damage to the interests of institution. It is also against the principles of equity and justice.

From the series of notifications and extension of timelines we understand that the intention of the Government is to encourage more tax compliance in new scheme of exemption framework and accordingly we opine that CBDT may come out with beneficial circular to grant relief and therefore to be more charitable to the charitable institutions.

(the views expressed in this article are strictly personal and author of this article can be reached at caprudhvigst@gmail.com )

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3 Comments

  1. Vinay says:

    Thank you sir for the timely alert article which resulted in extension of 10 A from 25-11-2022 to 30-09-2023 10 AB from 30-09-2022 to 30-09-2023.

  2. Vinay says:

    Thank you prudhvi sir for your timely alert article which has resulted in extension of due date for filling Form 10 A from 25 nov 2022 to 30 sep 2023 Form 10 AB from 30 th sep 2022 to 30 sep 2023. Your logic of doctrine of impossibility of performance hopefully convinced honourable CBDT to come out with a beneficial circular as contemplated in the conclusive part of your celebrated article. We wish many such contributions from noble CA professionals like you.

  3. S Mahalinga Swamy says:

    Regarding refund of booking amt of Rs.4 lakhs paid to Arvind Great Lands, for a plot at Devanahally during March 2023. Due to heavy price ((87 Lakhs for 1650 sft) of plot, I asked for refund. But, company says amt can’t be refunded & forfeit fully

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