MULTAN JAIN SHWETAMBER SABHA,JAIPUR vs. CIT (EXEMPTION), JAIPUR

PER SHRI KUL BHARAT, JM.

This Appeal by the Assessee is directed against the order of Ld. Commissioner of Income Tax (Exemption) dated 04th October 2016.

The assessee has raised the following grounds of appeal :-

“1. For that the Ld. CIT(A) grossly erred under the facts and circumstances of the case in refusing and rejecting application seeking registration u/s 12AA. Your appellant reserves the right to add, alter or amend any grounds of appeal on or before the date of hearing.”

Form No. 10A seeking registration u/s 12AA of the Income Tax Act, 1961

(hereinafter referred to as the Act). However, the Ld. CIT rejected the application

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on the ground that object and activities of the application trust/ society are for the

benefit of particular religious community.

Ld. Counsel for the assessee reiterated the submissions as made in the written brief,

the submissions made by the Ld. Counsel are reproduced as under:-

“The application made U/s 12AA for registration of 'Religious & Charitable Trust' made by the Assessee Trust to CCIT (Exemptions) on 13.04.2016. In response to said application, a letter dated 21.04.2016 was issued to the assessee requiring to produce certain documents on 12.05.2016, on which date all the documents were submitted and further it was asked to produce books of accounts for two years and copy of Land Purchase Deed was asked to be submitted. On appointed date both the required details were submitted and books were produced and was examined by the AO and no further query was ever made in this regard. In order in para 3, it was mentioned that complete details were not filed, but all the details desired were filed completely. Suddenly one day the assessee received the order U/s 12AA (1) (b) dated 04.10.2016 stating that the Trust is formed for benefit of Jain community and thus is violating provisions of section 13 (1) (b) and therefore the registration of the Trust/Society is refused and application seeking registration is rejected.

No Opportunity of being heard as envisaged under Proviso to section 12AA was given to the assessee. It is well established settled proposition of law that any order giving rejection to the registration can't be passed without giving opportunity of being heard. Opportunity of being heard is given only by mean of written show-cause notice to that regard. No such show cause notice was given by the AO in this case and thus principles of natural justice was violated which renders the proceedings void ab initio.

Section 12AA(1) empowers the AO to call for such documents or information from the Trust and to make such inquiries necessary in order to satisfy himself about the genuineness of activities of the Trust. The only responsibility entrusted is to satisfy about the objects of the Trust and nothing else. In this case, the action of Learned CIT (Exemptions) of rejecting the registration application is not justified and contrary to the settled position of law. At the time of registration, the Ld. CIT is not empowered to look into the issue whether the assessee has violated the provisions of section 13 (1) (b) of the Act.

The Ld. CIT (Exemptions) himself has mentioned in the order in para 5 that Hon'ble courts were taking the view that the applicability of section 13(1) cannot be examined at the time of deciding the application for registration. According to him, the position has changed after insertion of section 12AA(4) with effect from 01.10.2014. He also narrated the

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explanatory notes to the Finance Act 2014 wherein the reasons behind the insertion of the said provision is discussed.

Further in para9, the CIT has mentioned that after introduction of section 12AA(1), it has become imperative to examined the clause of 13(1)(b) at the stage of registration also. But this is only his opinion but not provided anywhere in the law which is very clearly spelled. Section 12AA(4) is only an enabling provision to cancel the Registration where the Registration has been granted. Thus by no stretch of imagination, it may binder in granting of fresh registration.Furthermore provisions of this sub section is only applicable where it is noticed that the activities of the trust of the trust or the institution are being carried out in a manner that the provisions of section 11 and 12 do not apply to exclude either whole or any part of the income of such trust or institution due to operation of sub-section (4) of section 12AA to refuse Registration U/s 12AA(1).

Further, the Ld. CIT is not empowered to look into the issue whether the assessee has violated the provisions of section 13(1)(b) of the Act. As per provisions of section 13(1), it is amply clear that there are three limbs of said section.

Section 13(1)(a) is for Trust formed for Private Religious purposes. Applicant do not fall under this clause as it is not meant for Private purposes.

Section 13(1)(b) is for Trust for Charitable Purposes/Charitable Institution only. Applicant do not fall under this clause too as the Trust is formed as Religious and Charitable Trust and not purely a Charitable Trust.

Section 13(1)(c) is for Trust for Charitable or Religious Purposes. This is the category of the Applicant. The Applicant Trust is working for maintenance of Jain Temple and upliftment of Jain community which makes them religious. The Trust is also working for general public charity as well which is also well defined in the objects of the Trust. This clause is attracted only if any income or property of the Trust is directly or indirectly used or applied for the benefit of the persons referred in sub section 3 of section 13. This is not the case, as the Trust is working solely for the religious and charitable objects as defined in the constitution of the Trust and no payment has been made for the benefit of persons referred u/s 13(3).

Hence section 13(1)(b) is not at all applicable on the assessee Trust in this case, on the basis of which alone the Application u/s 12AA was rejected. This proposition is very clear and settled in view of various judicial precedents. Reliance in this connection is placed on following cases;

CIT v. Bigabass Maheshwari Sewa Samiti (2008) 14 DTR 0029 (Raj.) (HC) A reading of objects of the trust revealing that beneficiaries of the trust were society at large and not confined to any particular caste, community or even religion, the ineligibility provided in ss. 13(1)(a) and 13(1)(b) was not attracted. Providing for some preference, in favour of the persons belonging to a particular community was not sufficient to attract s. 13(1)(b).

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CIT v. Dawoodi Bohara Jamat 364 ITR 32 SC Hon'ble Supreme Court has held that the assessee is a charitable religious trust and the provisions of section 13 (1)(b) of the Acct would not be applicable; It was directed to grant registration to the assessee under section 12A of the Acct as charitable religious trust.

CIT v. Chandra Charitable Trust (2007) 294ITR 86 (Guj.), Hon'ble Gujarat High Court held that where the objects of the trust were not only to propagate Jainism or help and assist maintenance of temples, Sadhus, Sadhvis, Shraviks and Shravaks, and other goals are also set out in the trust deed, the trust was a charitable as well as religious trust and section 13(1)(b) of the Act would not be applicable.

CIT Vs. Barkate Saifiya Society (1995) 213 ITR 492 (Guj) Gujarat High Court held that the exclusion from exemption under section 13(1)(b) of the Act applies only to charitable trust and charitable institution and if the trust was charitable as well as religious in nature, the assessee would be entitled to exemption under section 11 of the Act.

BhagwanMahavirPurusharthPrerna Nidhi Nyas v. CIT (2012) 067 DTR 0185 (Jp) Jaipur Tribunal held that Section 13(1)(b) does not say that condition mentioned shall apply to section 12AA which is applicable for registration. Section 13(1) refers to the previous year and registration is not for a particular previous year. If conditions of section 13(1)(b) are violated then exemption under section 11 shall not be given. The basic purpose is not to allow exemption of income if the trustees make some violation in some particular year but such violation will not affect the registration. Even religious trusts were entitled for registration. Therefore, CIT was directed to grant registration under section 12AA.

Learned CIT (E) also tried to give colour of Jainism religion to the Trust by relating it with membership clause in para 7 at page 6 of the order. The membership clause is meant for management of the Trust only and it has nothing to do with beneficiaries who are the general public. So the trust is not created merely for the benefit of Jain samaj but is meant for public at large.

'Jainism' is the philosophy and preservation of symbol of such philosophy would definitely come into the embrace of the word 'Charitable'. Jainism is not a Religion but principle of living. It is submitted that in the object clauses wherever Jain is referred, it is with reference to following the fundamental principles laid down by the Lord Mahaveer which shows the path in which a person should lead his life. Further, all the objects are not for preaching/spreading the Jain philosophy in as much as object clauses 8 & 9 are objects of general public utility.

As stated earlier, Section 13(1)(b) is applicable when the trust is created or established for the benefit of any particular religious community only. The object clause nowhere states that the beneficiaries of the trust would be restricted only to the Jain community. The Trust

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is maintaining Jain temple and working for upliftment of society in general and Jain community in particular. Any one from the mankind can come and offer prayers in the temple, can take the benefit of facilities available at Dharamshala, Bhojanshala, Assembly Hall. Library etc. and their use is not restricted at any manner whatsoever on the basis of sex, cast or creed. Thus the objects of the Trust is religious as well as charitable in nature. The objects of the trust were not meant for benefit for any particular and specified group of individuals and hence, it could not be denied the benefit of registration under section 12AA of the Act.

Therefore, the observation of Ld. CIT (E) that the trust is constituted for the benefit of a particular religion is erroneous. Keeping these objects in view the Registration u/s 12AA should be granted to the assessee Trust.

CASE LAWS RELIED BY CIT (E) NOT RELEVANT The Revenue has relied on two case laws sated in his order, which are not relevant in this case. The points of distinction of these cases are as follows:

Agrawal Sabha-[2014] 223 Taxman 353 (Allahabad)- In this case the dominant object underlying constitution of trust was though charitable in nature but for benefit of only Agarwal community i.e. specified group of individuals. Further, no religious objects were there.

In the present case, the Trust is having both religious and charitable objects and they are not meant specifically for any specific community or group of individuals but for the benefit of general public. Section 13(1) (b) does not apply on religious and charitable Trusts.

Gowri Ashram - [2013] 356 ITR 328 (Madras)- In this case, assessee society was formed with an object to provide accommodation and facilities for performance of marriages and other auspicious functions to members of a particular community i.e. specified individuals, it could not be regarded as society formed with a charitable purpose within meaning of section 2(15). In present case Trust is formed for both Religious as well as Charitable Purposes And all the Charitable Purposes are for General Public not for specific group of people or specified individuals.

CASE LAWS RELIED UPON BY US Besides the case laws mentioned above, we also placed reliance on following recent judgments of Jaipur Tribunal by which the present case is covered:

Shri Digambar Jain Mandir Godhaji, Nagariyon Ka Chowk walon ka Rasta, Johari Bazar, Jaipur Vs. CIT (Exemption), Jaipur ITA No. 742/JP/2015, Hon'ble Jaipur Bench of Tribunal in almost the similar facts had held that keeping the objects of the trust in view and respectfully following the judgment of the Hon'ble Supreme Court in the case of CIT v. Dawoodi Bohara Jamat, 364 ITR 31 (SC), the order of CIT (Exemption) is set aside and directed to grant registration to the assessee Trust.

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KundKundShikshan Kendra Trust v. CIT (Exemptions), Jaipur in ITA No. 905/JP/2016) order pronounced on 11 January, 2017 The facts are identical in the present case. Therefore, taking a consistent view, the Ld. CIT (Exemption) is hereby directed to grant registration under section 12AA of the IT Act, 1961 to the appellant.

In a nutshell, the facts of our case is already a settled law and are similar to plethora of cases already decided by various courts in favour of the assessee including Hon'ble Supreme Court, Jurisdiction Rajasthan High Court and Jaipur Bench of Tribunal. In view of above, the Ld. CIT (Exemption) be directed to grant registration U/s 12AA of the IT Act to the assessee trust.”

rendered in the case of Kund Kund Shikshan Kendra Trust vs. the Commissioner of

Income Tax (Exemptions) in ITA No. 905/JP/2016 and also the decision in the case

of Shri Digamber Jain Mandir Godhaji vs. CIT(E) in ITA No. 742/JP/2015.

Ld. Departmental representatives opposed the submissions and submitted that the

case laws as relied by the Ld. Counsel for the assessee, are not applicable on the

facts of the present case. He submitted that the Ld. CIT has given a finding on fact

that the objects of the assessee trust are for the benefit of particular religious

community, which is not permissible.

record. We have also gone through the objects of the trust, a bare reading of the

objectives makes it clear that objectives of the trust are essentially for the purpose

of benefit of a particular religious community as per Clause 5 of the objects states

oppose the laws which effect the Jain Community and Religion.

rightly rejected the application. We also find that the dominant objectives of the

assessee in the form of the other clauses of the objectives is for the purpose of

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safeguarding and benefiting the interest of the Jain Community. Therefore, we do

not see, any reason to interfere into the decision of the Ld. CIT(E) same is hereby

affirmed, this application is dismissed.

Order is pronounced in the open court on Tuesday, the 30th day of May 2017.

Sd/- Sd/- ( HkkxpUn ½ ( dqy Hkkjr) ( BHAGCHAND) ( KUL BHARAT ) ys[kk lnL;@Accountant Member U;kf;d lnL;@Judicial Member Jaipur Dated:- 30/05/2017. Pooja/

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vkns'kkuqlkj@ By order,

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