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Income Tax Appellate Tribunal, “D”
Before: HON’BLE SH. SHAMIM YAHYA, AM & HON’BLE SH. SANDEEP GOSAIN, JM
आदेश / O R D E R Per Sandeep Gosain, Judicial Member: The present Appeal filed by the assessee is challenging against the order dated 29.12.17 passed by Ld. CIT (Exmp.), Mumbai u/s 12AA(1)(b)(ii) r.w.s. 12A of the Act 1961 on the grounds mentioned herein below:- 1) The Hon'ble CIT-(E) erred in rejecting the Application for Registration of Trust u/s 12A(l)(a) of the Income Tax Act, 1961 on the ground that activities of the Trust are not genuine when the Trust has not even incepted any activity. It is just in the process of acquiring the premises through which it intends to carry out its activity.
As per the facts of the case are that the assessee filed application u/s 12A(1) of the I.T. Act, before the Ld. CIT (E) for registration. As per the assessee, the Trust was set up for ‘Charitable activities’ as mentioned in the Trust Deed. However, the said application was rejected vide order dated 29.12.17.
3 I.T.A. No. 1008/Mum/2018 Shree Mewad Jain Swetamber Murtipujak Charitable Trust 3. Aggrieved by the said order, assessee preferred appeal before us on the ground mentioned herein above. 4. Ld. AR appearing on behalf of the assessee reiterated the same arguments as were raised by him before Ld. CIT(E). It was submitted that while taking decision on the registration application of the assessee, the Ld. CIT(E) had issued a letter to the Trust for producing evidence regarding expenses incurred towards the object of the organization and on activities carried out since its inception. It was also submitted that in reply to the query asked by Ld. CIT(E), the appellant submitted that the Trust in question was incorporated on 16.04.2013, but it had not initiated its activities as it intends to operate from a premises and therefore, is in the process of acquisition of the said premises. Apart from the above, it was also submitted that the Appellant Trust had not yet incepted and the same will be incepted only after acquisition of the property through which it intends to operate. Hence, in order to acquire the said property, the Appellant had received huge amount of corpus donations Spread over various years.
4 I.T.A. No. 1008/Mum/2018 Shree Mewad Jain Swetamber Murtipujak Charitable Trust 5. It was also submitted that the Property through which the Trust intends to operate was for a consideration of Rs. 7,00,00,000/- (Seven Crores Only). (A Copy of Memorandum in respect of the same is enclosed on Page No. 209-213 of the paper book). Thus in this way, all the advances collected by the Appellant Trust were in respect of the same property and the said details have already been shared with the donars and thus the donations were received by the Appellant Trust was in corpus with an intention to acquire the property. Apart from the above, the Appellant Trust also incurred expenses for discharging TDS Dues, Return Filing Fees, etc. 6. It was further submitted that since the Appellant Trust had not commenced any of the activities as specified in the objects of the Trust. So, the genuineness of the activities cannot be determined till the time activities are actually carried out by the Appellant Trust. But the Ld. CIT(E) rejected the application by observing as under :- ‘The applicant Trust has not been able to establish the genuineness of expenditure incurred towards the object of the Trust as well as the genuineness of its
5 I.T.A. No. 1008/Mum/2018 Shree Mewad Jain Swetamber Murtipujak Charitable Trust activities, on the basis of its submissions. The applicant Trust has also not furnished any proof of activities actually carried out by it. Thus, there is no material on record to enable me to stratify myself about the objects of the Trust & the genuineness of its activities which are conditions precedent for grant of registration. On the contrary, there is enough material before me to have doubts on the genuineness of the Trust and its activities and also towards its real objectives. As the applicant Trust has failed to fulfil the mandatory requirements prescribed u/s. 12AA read with Rule 17A to satisfy about the genuineness of its activities and objectives, its application for grant of registration is rejected.
In order to support its contentions, Ld. AR relied upon the paper book filed on 03/12/2018 and drew attention on following: 1) The Appellant Trust is form with the intention to do Charitable Activities as listed in its Trust deed.
2) The Trust has not yet commenced its Activities as on date and in the process of acquiring the Assets
6 I.T.A. No. 1008/Mum/2018 Shree Mewad Jain Swetamber Murtipujak Charitable Trust through which activities would be carried out by the Trust.
3) The Assessee has only Collected Corpus Donation to acquire such property from various donor with proper direction letter.
4) As stated above Trust has not commenced its activities so genuineness of the activities can not be determined till the time activities are actually carried out by trust , relying on the following decisions, he submitted that registration U/s 12AA cannot be refused for the not Commencing the Activities of Trust :
» Commissioner of income Tax Vs. Kutchi Dassa Oswal Moto parivar Ambama Trust -High Court of Gujrat (2014)
» Director of Income Tax (Exemption ) Vs. Seervi Samaj Tambaram Trust -High Court of Madras (2014)
> Maha Avtar Trust V. Income Tax Officer -Chennai
5) The Ld. CIT (E) refused to grant registration with one more reason that the assessee has not produced books of Account however failed to considered that
7 I.T.A. No. 1008/Mum/2018 Shree Mewad Jain Swetamber Murtipujak Charitable Trust the assessee has time to time produced all the details along with requisite supporting document and only the details which were asked on last hours when the application was about to time barred and hence no reasonable time was available with the assesse to produce further details asked by the Id. CIT (E) , Moreover at the registration stage the objects mentioned in the deed of trust is to be verified as stated in case of Hon'ble ITAT delhi in Case of Vidyadyani Shiksha Samiti vs. CIT (E) where in it has been clearly laid down that CIT (E) has to verify objects and genuiness of the activities for the grant of registration and non production of books of accounts should not be ground for rejection of registration under Act.
6) Further the Ld. CIT (E) has to verify and grant the registration as per the procedure laid down in the Act and shall not invoke the points which are relevant from the angle of assessment proceeding as laid down in chapter XIV of Act.
On the other hand Ld. DR strongly supported the order of Ld. CIT (E) and submitted that Ld. CIT(E) had ample powers u/s 12AA of the Act to examine the books of accounts
8 I.T.A. No. 1008/Mum/2018 Shree Mewad Jain Swetamber Murtipujak Charitable Trust of the assessee and by not allowing him to examine the books of accounts amounts to restricting the powers of Ld. CIT(E), which is contrary to the provisions of law. Hence in such circumstances, Ld. CIT(E) had rightly rejected the grant of registration.
We have heard the counsels for both the parties and we have also perused the material placed on record, judgment cited by the parties and the order passed by the Ld. CIT(E). From the records, we notice that the only basis for rejection of assessee's application for registration by Ld. CIT(E) is on account of the fact that the assessee had not started its activities and non- production of books of accounts to verify the genuineness of the Activities. Apart from this, there were no other reasons for rejection of the application.
Now, after considering the material, we are of the view that so far as the activities of the trust are concerned, Section 12A specifically lays down certain conditions for applicability of Sections 11 & 12. Section 12A(1)(a) prescribes that the person in respect of whom the application for registration is made, the
9 I.T.A. No. 1008/Mum/2018 Shree Mewad Jain Swetamber Murtipujak Charitable Trust same should be made in prescribed form and in the prescribed manner to the Commissioner before the prescribed period. Section 12AA provides the procedure for registration and also provides that that Commissioner on receipt of an application for registration of trust shall call for such documents or information from the trust or institution as he thinks necessary in order to satisfy himself about the genuineness of the activities of the trust and may also make such enquiries as he may deem necessary in this behalf and after satisfying himself about the object of the trust and the genuineness of the activities, he may pass such order in writing registering the trust or refusing the registration of the trust.
In this way, on the plain reading of section 12AA, we find that at the time of granting registration, the Commissioner has limited powers only to the extent of examining the object of the trust and genuineness of the activities of the trust and for that purpose he may call for such document or information from the trust. In the case under consideration, the Commissioner did not
10 I.T.A. No. 1008/Mum/2018 Shree Mewad Jain Swetamber Murtipujak Charitable Trust dispute about the charitable activities as indicated in the object clause of the assessee.
On the perusal of order of the Ld. CIT(E), we find that Ld. CIT(E) was of the view that since there were no activities, therefore the assessee did not satisfy the condition about the genuineness of the activities, which in our view, is not correct. More particularly, we are of the considered view that when admittedly, there were no activities at all, therefore, the question of holding that the activities were non genuine does not arise. In our view, the genuineness of the activities can only be verified, when there are some activities. In case where the assessee trust did not started charitable activity at the time of granting registration, then in that eventuality, the same could not verified from the object clause.
So far as whether the Activities as per Deed per se is charitable or not, we find that the Coordinate Bench of the Tribunal in the case of Shavak Shiksha Samiti (supra) at para 3 had observed as under :-
11 I.T.A. No. 1008/Mum/2018 Shree Mewad Jain Swetamber Murtipujak Charitable Trust "3. We have considered the facts of the case and rival submissions. Section 2(15) defines the term 'charitable purpose' in an inclusive manner and includes within its ambit relief of poor, education, medical relief and advancement of any other object of general public utility. While, there could be some dispute in interpretation of the words "any other object of general public utility", there is no dispute that education per se is a charitable purpose just like relief of poor or medical relief. The society also does not exist for profit as there is no clause for distribution of profits or net assets in case of dissolution to members. The precondition for grant of registration under Section 12AA is that objects are charitable in nature and activities are genuine. We have seen that objects are charitable. The society is trying to set up a school in pursuance of its main object, which is a genuine activity. The learned CIT has also not referred to any material to show that the activities are not genuine. It is no doubt true that income of the society can also be exempted under Section 10(23C), but when two recourses are available to a person under the law, it is for him to choose one, the other or both the recourses. The assessee applied for its registration, to which it was
12 I.T.A. No. 1008/Mum/2018 Shree Mewad Jain Swetamber Murtipujak Charitable Trust entitled. We are of the view that under the circumstances, it has to be registered. The learned CIT is directed to grant registration to the society."
Now, coming to the powers of the Commissioner as to whether while granting registration u/s 12A of the Act, he is required to examine the books of account etc. or he is only to satisfy himself regarding the objects of the trust and genuineness of the activities of the trust. In this respect, we find different courts have held that while granting registration u/s 12A of the Act, the Ld. CIT(E) is required to see only the objects of the assessee trust/society and not to examine the application of income. While granting registration, Ld. CIT(E) is not required to examine whether the income derived by the trust is being spent for charitable purposes or the trust is earning profit. He is only required to examine the objects of the trust. 15. We find that identical issue had come up before the Coordinate Bench of the Tribunal in the case of Bhartiya Kisan Sangh Sewa Niketan (supra). In the said case also the assessee trust did not produce the books of account, bills and vouchers etc. for verification of the Ld. CIT for which the Ld. CIT held that
13 I.T.A. No. 1008/Mum/2018 Shree Mewad Jain Swetamber Murtipujak Charitable Trust the assessee society is not carrying out any charitable activities. Due to non-compliance of assessee society, the genuineness of the activities could not be verified. The Ld. CIT(E), therefore, relying on various decisions including the decisions which have been relied on by the Ld. CIT in the present case, rejected the claim of registration u/s 12A(1) of the I.T. Act. When the matter travelled to the Tribunal, the Tribunal allowed the claim of registration by holding that at this stage of granting registration u/s 12A the Ld. CIT(E) is required to see the objects of the society and not required to examine the application of income which will have to be undertaken by the Assessing Officer on a year to year basis after the assessee files the return of income claiming exemption u/s 11 of the I.T. Act. 16. In view of the above discussion and keeping in view of the principles as laid down in the above orders of the Coordinate Benches of ITAT, we hold that Ld. CIT(E) was not justified in rejecting the claim of registration u/s 12A of the Act. 14. We, therefore, set-a-side the order of the Ld. CIT(E) and direct him to allow registration certificate u/s 12AA of the I.T. Act.
14 I.T.A. No. 1008/Mum/2018 Shree Mewad Jain Swetamber Murtipujak Charitable Trust 17. In the net result, the appeal filed by the assessee is allowed with no order as to cost. Order pronounced in the open court on 29th Jan 2019.
Sd/- Sd/- (Shamim Yahya) (Sandeep Gosain) लेखासदस्य / Accountant Member न्याययकसदस्य / Judicial Member मुंबई Mumbai;यदनांकDated : 29.01.2019 Sr.PS. Dhananjay
आदेशकीप्रनिनिनिअग्रेनर्ि/Copy of the Order forwarded to : 1. अपीलाथी/ The Appellant 2. प्रत्यथी/ The Respondent आयकरआयुक्त(अपील) / The CIT(A) 3. 4. आयकरआयुक्त/ CIT- concerned 5. यवभागीयप्रयतयनयध, आयकरअपीलीयअयधकरण, मुंबई/ DR, ITAT, Mumbai गार्डफाईल / Guard File 6. आदेशधिुसधर/ BY ORDER,
.उि/सहधयकिंजीकधर (Dy./Asstt.Registrar) आयकरअिीिीयअनर्करण, मुंबई/ ITAT, Mumbai