Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, “E” BENCH, MUMBAI
Before: SHRI PAWAN SINGH & SHRI RAMIT KOCHAR
O R D E R
PER RAMIT KOCHAR, Accountant Member:
This appeal, filed by assessee, being is directed against order bearing no. CIT(E)/u/s.12A/50000/2018-19 dated 30.05.2018, passed by learned Commissioner of Income Tax (Exemptions), Mumbai (hereinafter called “the CIT(E)”) u/s. 12AA(1)(b)(ii) read with Section 12A of the Income-tax Act,1961 (hereinafter called “the Act”). 2. The grounds of appeal raised by assessee in the memo of appeal filed with the Income-Tax Appellate Tribunal, Mumbai (hereinafter called “the tribunal”) read as under:-
“1. On facts and circumstances of the case and in law, the learned Commissioner (Exemptions) erred in passing his order u/s 12AA (1) (b) (ii) of the Income Tax Act, 1961 rejecting the Appellant's application for registration u/s 12AA without considering properly the explanations and evidences submitted by the Appellant in support of its application.
On facts and circumstances of the case and in law, the learned Commissioner (Exemptions) also erred in passing his aforesaid order without granting Your Appellant an adequate opportunity of being heard. The orders passed by him is in contravention of the principles of natural justice and hence, bad in law.
The Appellant reserves the right to add to, alter or delete any of the above grounds with permission of Hon'ble Tribunal.”
3. This appeal is filed by the assessee challenging decision of Ld. CIT(Exemption) rejecting registration of the assessee u/s. 12A of the Act. The assessee filed application in Form No. 10A on 15.11.2017 with learned CIT(E) for grant of registration u/s 12A. The assessee was registered as public trust with office of Assistant Charity Commissioner, Mumbai on 18.10.1972, having registration No. F- 2392, Mumbai. The assessee was asked by Ld. CIT(E) to submit documentary evidences and note on its activities to prove genuineness of its activities and objectives. The assessee submitted details before learned CIT(E) wherein it claimed that the assessee was running its school namely “New Model English School”. This school was being run by Late Mrs. Sushila Khairajani ( who was trustee of the trust) . The books of accounts and income-tax returns were filed in her personal capacity. The assessee was constituted on 27.09.1967 as society under Societies Registration Act and registered with Charity Commissioner on 18.01.1972 as public trust . After the death of founder trustees ( namely Mr C.K.Khairajani, Mrs. Jamuna Khairanjani and Mrs. Sushila Khairajani) , the heirs approached the charity commissioner and were appointed as trustees to take charge of the running and administration of the Trust.
The learned CIT(E) observed that now since assessee wanted to conduct the affairs of the school instead of being earlier run by Mrs. Sushil Khairajani , there appears to be prima facie transfer of school . The assessee was asked to furnish further details as are mentioned in the order of learned CIT(E) in para 4 and 5 . The assessee submitted details before learned CIT(E) . However, the learned CIT(E) not being satisfied by the submissions filed by the assessee, declined to grant registration u/s 12A vide orders date 30.05.2018 passed u/s 12AA(1)(b)(ii) read with Section 12A of the 1961 Act as in the opinion of learned CIT(E) there were various lapses committed by the assessee in the past and hence consequently genuineness of the activities and satisfaction of the objects could not be proved by the assessee , wherein learned CIT(E) held as under:- “5. In response to above, Ms. Shetal Shah, CA, authorized representative, alongwith Shri Rajesh Khairajani Trustee and Mrs. Mamta Khairajani Trustee attended and submitted the details. To the surprise of the undersigned it was found that the permission for running this school was granted to the trust and not to Mrs. Sushila Khairajani, filing return of income as the proprietor of the school, who incidentally was also a trustee. Therefore vide letter dated 25.04.2018, the assessee was asked to furnish some more clarification and chronology of entire events. On examination of assessee's reply and all other documents, following facts/issues raised serious doubts over the genuineness over the activities and objects of the trust; A) Although the trust was formed in 1968 and registered with Charity Commissioner on 18.01.1972, with permission from the Education Department on 22.04.1969 to run the affairs of the school, yet the school was run in the individual capacity that too by one of the trustee. B) There was no compliance with the Charity Commissioner. No regular books of account maintained for the trust, though as per the The Bombay Public Trusts Act, 1950, also following records are to be maintained regularly. (a) As per Section 32 r.w.r.17 of the BPT Act, the trust is expected to maintain regular accounts of i. All receipts of movable and immovable property, ii. All encumbrances created on trust property. iii.All payments made and alienations made on behalf of the public trust. iv.All other particulars that will facilitate preparation of Balance sheet and Income and Expenditure in prescribed form (i.e. Schedule VIII and income liable to contribution in Schedule IX-C). No books of accounts as mentioned were maintained by the applicant trust. (b) As per section 33 and 34 of the BPT, accounts to be audited and audit report to be submitted to the Charity Commissioner. As the books of account were not maintained no audit report was not prepared by the applicant trust.
(c) As per section 36B of the BPT Act, there has to be register of movable and immovable property of the trust, which is never maintained by the trust. No Such register of movable and immovable property was maintained by the applicant trust. (d) As per section 36A(1) of the BPT Act, Powers and duties and restrictions of trustees: A trustee of every public trust shall administer the affairs of the trust and apply the funds and properties thereof for the purpose and objects of the trust in accordance with the terms of the trust, usage of the institution and lawful directions which the Charity Commissioner of Court may issue in respect thereof, and exercise the same care as a man of ordinary prudence does when dealing with such affairs, funds, or property, if they were his own. However, in all these years none of the above records, which are required to be maintained statutorily, were maintained. There is no record to show that the trust was running properly and in accordance with the objects. C) There is no separate bank account in the name of the trust.
D) Income and expenditure related to the school was shown in the individual account of Mrs. Sushila Khairajani and not in the name of the trust. The Trust was not even a holding any PAN all these years and has applied on 09.08.2017, It did not file any IT return or computation of income or form 10B. E) Importantly, not only the rights and permission of the trust to run the school was allowed to be used to the trustee for running the school in personal capacity but she was also deriving profit from the same and the entire profit which has been generated from the school has been shown in the proprietor account of the trustee. The details of year wise profit of school is as under: NET PROFIT/(LOSS) OF NEW MODEL ENGLISH HIGH SCHOOL .. A.YJ006- A.Y.2007-08 A.Y.2008- A.Y.2009- A.Y.2010- A.Y.2011- A.Y.2012- A.Y.20I3- A.Y.2014- A.Y.2015- A.Y.2016- A.Y.2017-18 07 09 10 11 11 13 14 15 16 17 K.G section -39,147 -39,318 9,593 -37,397 8,463 -56,065 75,125 2,78,935 76,533 4,07,281 44,072 -5,64,085 Primary -11,945 21,340 11,965 48,839 1,82,752 4,17,538 3,78,452 3,18,814 8,90,163 8,91,459 -2,70,442 8, 2 2,012 Secondary 83,656 39,408 12,957 -6,016 5,929 3,18,920 3,40,668 2,06,796 -2,39,856 6,31,909 9,26,996 10,89, 603 Total Profit 32,564 21,430 34,515 5,426 1,97,144 6,80,393 7,94,245 8,04,545 7,26,840 19,30,649 7,00,626 13,47,530
As per the provisions of Section 12AA(1)(b), a trust is to be granted registration if the Commissioner is satisfied about the objects of the Trust and the genuineness of its activities. Both these requirements are cumulative and not alternative. There can be no doubt that the onus is on the applicant to produce all relevant documents/information etc so as to enable the registering authority to arrive at the requisite satisfaction about the objects of the trust and the genuineness of its activities. The satisfaction of the registering authority cannot be a subjective satisfaction based on whim or caprice. It has to be a bona fide and objective satisfaction, based on due application of mind to a certain set of facts or materials before him. The satisfaction of the registering authority is not a pretence or an empty formality but is the foundation of grant or refusal of registration, In other words, such satisfaction is the crux or essence of the registration proceedings. Where the applicant fails to furnish the relevant documents and materials before the registering authority so as to facilitate the process of its arriving at a positive satisfaction, the authority has no option but to refuse the grant of registration
In this case, not only the undersigned is not able to satisfy himself with the genuineness of objects and activities of the trust but there are clear cut violations of BPT Act for sustained period. In the absence of records to be maintained statutorily, there is no way to find out anything about activity of trust, the rights and permission of trust to run the school which has been utilised by the trustee to run school in personal capacity and thus derived profit from the same. Therefore, the application of assessee filed u/s. 12AA of the I.T Act, 1961 is hereby rejected.”
Now aggrieved by the order dated 30.05.2018 passed by learned CIT(E) u/s 12AA(1)(b)(ii) read with Section 12A of the 1961 Act rejecting application of the assessee for grant of registration u/s 12A of the 1961 Act, the assessee has come in an appeal before the tribunal and at the outset it is claimed by learned counsel that there are three phases of assessee for which a written chart is filed before the tribunal by learned counsel for the assessee, which is reproduced hereunder:-
Date Chronology of events Phase no. 1 27-09-1967 Registration under Societies Registration Act. 1968 & Copies of recognitions given by Education 1969 Department to New Model English High School of the Appellant 18-01-1972 Registration with the Charity Commissioner under Maharashtra Public Trust Act, 1950 Phase no. 2 (the Error Phase) Up to 2009 The school activities were always educational and charitable, however, its iiuomc was taxed in hands of Smt. Sushila Khairajani as Individual and not of Appellant. Bank account was always in the name of the school i.e. New Model English School which was operated by Smt. Sushila Khairajani in her capacity as a Head Mistress of the School. Smt. Sushila Khairajani died sometime in 2009. No PAN in name of Appellant.
No compliances of Appellant with Charity Commissioner Income Tax Returns were filed by Smt. Sushila Khairajani up to Assessment Year 2009-10. These returns show school income and taxes paid thereon as well as her Salary and Rental Income. Copies of her income tax returns for Assessment Years 2006-07 to 2009-10 given to CIT 2009 to 31st Returns filed by her Estate showing school income March 2017 and taxes paid. Copies of income tax returns for Assessment Years 2010-11 to 2016-17 given to CIT. Income Tax Return for A.Y. 2017-18 could not be uploaded online due to technical difficulty. Copies of computation of income & Audited Accounts submitted to CIT 1-4-2017 Phase no 3 [ The Correction Phase by New onwards Trustees appointed by Charity Commissioner] 12-07-2017 Order passed by before Joint Charity Commissioner, Maharashtra State, Mumbai appointing in proceedings u/s 47 of Maharashtra Public Trusts Act, 1950 appointing new trustees (Rajesh Khairajani & Others} Extract from Charity Commissioner's records - register entries of new trustees appointed. 09-08-2017 Application dated 09-08-2017 by Appellant for PAN 31-08-2017 Copy of PAN of Appellant as received 15-11-2017 Application u/s 12A filed with CIT 28-02-2018 Copy of proceedings of meeting dated 28-03-2018 of Managing Committee of Appellant - Resolution to bring the bank current account of New Model English School in name of the Appellant 03-03-2018 Copy of proceedings of Special General Body held on 03-03-2018 of Appellant to endorse change in registered address Copy of Application made to Charity Commissioner for change in address 15.03.2018 Copy of order dated 15-03-2018 passed by Asst. Charity Commissioner taking on record change in address TAN Applied 25-05-2018 Agreement amongst Trustees for regularizing the process of running the school in to the hands of the Appellant 30-05-2018 CIT passes order u/s 12A refusing registration Note : Charity Commissioner Compliances of filing accounts for year ended 31-03-2018 & compliance of filing income tax return for A.Y. 2018-19 were not due on the date of passing of rejection order u/s 12A by CIT. Thereafter, these compliances have been completed. These compliances incorporate school activity as that of the Appellant. All assets relating the school (both fixed assets and bank accounts) have been restored to the Trust Propositions before ITAT :- • Appellant has supported his application u/s 12A from the compliance events in the Correction Phase (Third Phase in the Chart above). By its submissions, it has discharged the onus of proving the two eligibility conditions for registration u/s 12A i.e. objects are educational and its activities are genuine towards the educational objects, • On the other hand, CIT has selectively considered only the events in the Error Phase (Second Phase in the Chart above) and ignored the compliance events of the Appellant in the Correction Phase (Third Phase in the Chart above). In the process, he has relied on the redundant events and ignored the relevant events. • For determining the application for registration u/s 12A, the CIT has wrongly tested Smt. Sushila Khairajani and not the Appellant, who was the applicant for registration. • The record of submissions made by the Appellant to the CIT bear testimony that the twin eligibility conditions for registration u/s 12A have been complied as under :- Objects are educational - Objects are educational as per the Memorandum & Articles of the Appellant Society- Page 14 of paper book. CIT has not controverted this. The activities are genuinely educational- (i) No dispute that school is in running. (ii) The school is non-aided. School caters to students poor and middle class families. Fees charged (about Rs.1300 per month) are far less that charged by other schools in the vicinity ( Rs. 1,500 to Rs. 1,800 per month), (page 95 of Paper Book). Also details submitted of poor students whose education is imparted under the Right to Education Act for last five years (Page 85 of paper book). It is claimed by the Ld. Counsel for the assessee before the Bench that in first phase which was from 1967 to January 1972 , the registration of the assessee was done under Societies Registration Act , recognition was given by Education Department to new Model English High School and registration of the assessee was also done with Charity Commissioner as public trust. Then it was explained by learned counsel for the assessee that no doubt in phase two which was upto March 2017, the income arising from the activities of the school was shown in the name of the trustee namely Smt. Sushila Khairajani and after death in the name of her estate. It was stated by learned counsel for the assessee before the Bench that no exemption from taxes were claimed till the end of phase two and Mrs. Sushila Khairajani was paying due taxes to government from income arising from school. Now, the heirs have started to correct past errors and mistakes from FY 2017-18. The activity chart for all these three phases is reproduced above. It is claimed by learned counsel for the assessee that the first phase was for getting registrations and clearances while second phase which lasted upto 31.03.2017 , was marked with several errors and mistakes as detailed in aforesaid chart. Now w.e.f. 01.04.2017 onwards the third phase has started wherein errors and mistakes which were committed in the past were being corrected . It was explained that in third phase efforts are being made to set right all past errors and mistakes . It is explained that this third phase started with appointment of new trustees with the approval of Charity Commissioner . An application was made with Income Tax department applying for PAN/TAN in the name of assesssee. The assessee also filed with Income-tax department for seeking registration u/s 12A and other regularization activities were also undertaken to bring activities/ affairs of the school within the fold of trust instead of erroneously being carried in the name of Smt. Sushila Khairajani as was done in 9 past. It was submitted that the Ld. CIT(Exemption) while rejecting an application for registration u/s 12A was overshadowed by the errors/mistakes committed by the assessee in phase two and did not considered the actions of the assessee to correct its error and denied registration u/s. 12A of the Act.Thus, it was claimed that the errors committed by the assessee in phase two outweighed decision making process of learned CIT(E) in rejecting application filed by the assessee for registration u/s 12A of the Act. It is also stated by learned counsel for the assessee that school is offering lower fees structure vis-a-vis other schools in the vicinity as well quota is offered for poor students as provided under Right to Education Act. It was submitted and prayed before the Bench that one more opportunity may be granted to the assessee and the matter may be restored to the file of Ld. CIT(Exemption) to consider all the evidences/explanations including fresh evidences/explanations again and then decide the issue of grant of registration u/s 12A on merits un-influenced solely by the errors and mistakes committed in past. It was explained that now the assessee has also filed return of income for AY 2018-19 in its name wherein income from school is duly offered for tax as per law. The Ld. CIT-DR objected to the contentions raised by the assessee and relied upon the order passed by Ld. CIT(Exemption) but fairly submitted that the matter may be restored back to the file of the Ld.CIT(Exemption) for having a fresh look on the entire material including fresh evidences/explanations now brought on record by the assessee before the Bench .
We have considered rival contentions and perused the material on record. We have observed that the assessee is registered with Assistant Charity Commissioner, Mumbai on 18.01.1972 as public trust having registration number F-2392(Mumbai). The assessee was constituted on 27.09.1967 as society under Societies Registration Act. We have also observed that the school namely New Model English High School was approved by Education Department in 1969. The income from school was not accounted for in the name of the assessee but it is claimed that the said income was accounted for and offered for tax in the individual name of one of the trustee namely Mrs. Sushila Khairajani who was declaring the income from school in her individual return of income filed with Revenue and paying taxes to government. It is also claimed that the assessee was not even holding PAN/TAN in its name and return of income was never filed till AY 2017-18 by the assessee . It is claimed that the said Mrs. Sushila Khairajani died in the year 2009 and thereafter income was shown in the name of her estate. Thus, as contended by assessee there was also no exemption availed from income of the school till AY 2017-18. After death of said Smt. Sushila Khairajani, her family members came forward and initiated steps for regularizing the errors and mistakes committed by said late Smt. Sushila Khairajani . It is claimed that new trustee were inducted in the assessee with the approval of the Charity Commissioner. Income Tax PAN/TAN in the name of the the assessee was obtained and it was also claimed that the assets are being transferred to the assessee for carrying on the activities of the school namely „New Model English High School‟. The evidences to that effect , it is claimed were filed before learned CIT(E) and are placed in paper book containing 99 pages. It was also claimed that for AY 2018-19, the assessee has now filed its return of income wherein income from school was declared in the name of assessee trust. The assessee had also filed an application of registration u/s. 12A the 1961 Act on 15.11.2017 in form no. 10A which got dismissed by Ld. CIT(Exemption) by holding as under;- “5. In response to above, Ms. Shetal Shah, CA, authorized representative, alongwith Shri Rajesh Khairajani Trustee and Mrs. Mamta Khairajani Trustee attended and submitted the details. To the surprise of the undersigned it was found that the permission for running this school was granted to the trust and not to Mrs. Sushila Khairajani, filing return of income as the proprietor of the school, who incidentally was also a trustee. Therefore vide letter dated 25.04.2018, the assessee was asked to furnish some more clarification and chronology of entire events. On examination of assessee's reply and all other documents, following facts/issues raised serious doubts over the genuineness over the activities and objects of the trust; A) Although the trust was formed in 1968 and registered with Charity Commissioner on 18.01.1972, with permission from the Education Department on 22.04.1969 to run the affairs of the school, yet the school was run in the individual capacity that too by one of the trustee. B) There was no compliance with the Charity Commissioner. No regular books of account maintained for the trust, though as per the The Bombay Public Trusts Act, 1950, also following records are to be maintained regularly. (a) As per Section 32 r.w.r.17 of the BPT Act, the trust is expected to maintain regular accounts of i. All receipts of movable and immovable property, ii. All encumbrances created on trust property. iii.All payments made and alienations made on behalf of the public trust. iv.All other particulars that will facilitate preparation of Balance sheet and Income and Expenditure in prescribed form (i.e. Schedule VIII and income liable to contribution in Schedule IX-C). No books of accounts as mentioned were maintained by the applicant trust. (b) As per section 33 and 34 of the BPT, accounts to be audited and audit report to be submitted to the Charity Commissioner. As the books of account were not maintained no audit report was not prepared by the applicant trust.
(c) As per section 36B of the BPT Act, there has to be register of movable and immovable property of the trust, which is never maintained by the trust. No Such register of movable and immovable property was maintained by the applicant trust.
(d) As per section 36A(1) of the BPT Act, Powers and duties and restrictions of trustees: A trustee of every public trust shall administer the affairs of the trust and apply the funds and properties thereof for the purpose and objects of the trust in accordance with the terms of the trust, usage of the institution and lawful directions which the Charity Commissioner of Court may issue in respect thereof, and exercise the same care as a man of ordinary prudence does when dealing with such affairs, funds, or property, if they were his own. However, in all these years none of the above records, which are required to be maintained statutorily, were maintained. There is no record to show that the trust was running properly and in accordance with the objects. C) There is no separate bank account in the name of the trust. D) Income and expenditure related to the school was shown in the individual account of Mrs. Sushila Khairajani and not in the name of the trust. The Trust was not even a holding any PAN all these years and has applied on 09.08.2017, It did not file any IT return or computation of income or form 10B. E) Importantly, not only the rights and permission of the trust to run the school was allowed to be used to the trustee for running the school in personal capacity but she was also deriving profit from the same and the entire profit which has been generated from the school has been shown in the proprietor account of the trustee. The details of year wise profit of school is as under: NET PROFIT/(LOSS) OF NEW MODEL ENGLISH HIGH SCHOOL .. A.YJ006- A.Y.2007-08 A.Y.2008- A.Y.2009- A.Y.2010- A.Y.2011- A.Y.2012- A.Y.20I3- A.Y.2014- A.Y.2015- A.Y.2016- A.Y.2017-18 07 09 10 11 11 13 14 15 16 17 K.G section -39,147 -39,318 9,593 -37,397 8,463 -56,065 75,125 2,78,935 76,533 4,07,281 44,072 -5,64,085 Primary -11,945 21,340 11,965 48,839 1,82,752 4,17,538 3,78,452 3,18,814 8,90,163 8,91,459 -2,70,442 8, 2 2,012 Secondary 83,656 39,408 12,957 -6,016 5,929 3,18,920 3,40,668 2,06,796 -2,39,856 6,31,909 9,26,996 10,89, 603 Total Profit 32,564 21,430 34,515 5,426 1,97,144 6,80,393 7,94,245 8,04,545 7,26,840 19,30,649 7,00,626 13,47,530
6. As per the provisions of Section 12AA(1)(b), a trust is to be granted registration if the Commissioner is satisfied about the objects of the Trust and the genuineness of its activities. Both these requirements are cumulative and not alternative. There can be no doubt that the onus is on the applicant to produce all relevant documents/information etc so as to enable the registering authority to arrive at the requisite satisfaction about the objects of the trust and the genuineness of its activities. The satisfaction of the registering authority cannot be a subjective satisfaction based on whim or caprice. It has to be a bona fide and objective satisfaction, based on due application of mind to a certain set of facts or materials before him. The satisfaction of the registering authority is not a pretence or an empty formality but is the foundation of grant or refusal of registration, In other words, such satisfaction is the crux or essence of the registration proceedings. Where the applicant fails to furnish the relevant documents and materials before the registering authority so as to facilitate the process of its arriving at a positive satisfaction, the authority has no option but to refuse the grant of registration 7. In this case, not only the undersigned is not able to satisfy himself with the genuineness of objects and activities of the trust but there are clear cut violations of BPT Act for sustained period. In the absence of records to be maintained statutorily, there is no way to find out anything about activity of trust, the rights and permission of trust to run the school which has been utilised by the trustee to run school in personal capacity and thus derived profit from the same. Therefore, the application of assessee filed u/s. 12AA of the I.T Act, 1961 is hereby rejected.” The Ld. CIT(Exemption) main line of argument while dismissing assessee‟s application for registration u/s 12A was that irregularities were committed by the assessee in the past which led learned CIT(E) to come to adverse conclusion as to satisfaction of objectives and genuineness of activities of the assessee , which led to the dismissal of assessee‟s application for registration u/s 12A of the 1961 Act . Keeping in view facts and circumstances of the case as detailed by us, we are of the considered view that the assessee deserves one more opportunity wherein we are setting aside the issue of registration of the assessee trust u/s. 12A back to the file of the Ld. CIT(Exemption) for denovo consideration of the assessee aforesaid application for registration u/s 12A after considering the entire material/evidences brought on record by the assessee in the set aside proceeding on 14