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Income Tax Appellate Tribunal, MUMBAI BENCH “A”, MUMBAI
Before: Shri Sandeep Gosain & Shri G Manjunatha
O R D E R Per G Manjunatha, AM : This appeal filed by the assessee is directed against the order of the Commissioner of Income-tax (Exemptions), Mumbai dated 30-09-2015 passed u/s 12AA(1)(b)(ii) r.w.s. 12A of the Income-tax Act, 1961 rejecting recognition of the trust u/s 12AA of the Income-tax Act, 1961. The assessee has raised the following grounds of appeal:-
2 ITA 5480/Mum/2015
“The Learned Commissioner of Income Tax (Exemptions) has erred in: 1) Considering that appellant is into activity of locating the land and getting the construction work done which are in principle commercial in nature. Though the main object of the appellant is to create a common platform to assist, guide and provide information to the members and the general public to have a affordable housing . The Commissioner has misconceived that the appellant is into activity of locating the land and doing construction work itself. The object of the appellant is to provide an affordable housing to its members by acting as an mentor and guide between the developer and its members. Once the association is able to locate members who are in a need of affordable housing in a particular area the appellant then derives the strength for collective bargaining with the developer of that area and negotiate with the builder for cheaper rates on the ground that he will be able to sell all his units once without incurring any advertisement or any other business promotion expenses. The appellant will only act as an intermediate between its members and the builder thus being able to provide its members their own living at cheaper rates by creating a common platform. The charter documents of the appellant also mention only such educational & information providing activities and nothing more. Also nowhere in the objects of the appellant it is mentioned that the appellant will locate the land and will undertake construction work like builder and developer. 2) Considering that the appellant would provide loan facilities to its members and general public. The Appellant only intends to provide the required information for providing loan facilities to its members. The appellant is well aware that it is not a Non Banking Finance Company and therefore does not and does not intend to provide any loan facility to its members. The Appellant keeps information about the Housing Finance Institutions, Banks and credit Societies who grant the loans for housing purpose at concessional rate or subsidized rate. The appellant just guide their members how they can avail the services of the Housing finance Institutions, Banks and credit Societies who grant loans for housing purpose at concessional or subsidized rate. Also for these types of services appellant does not charges any fees. 3) Relying what is mentioned in Hindustan Times dated 27.07.2010 where it was mentioned that the appellant will purchase the plot and will arrange loan for the buyers. The Respondent has relied on the article published in Hindustan Times dated 27.07.2010 but not on what appellant has mentioned in the reply given against the show cause letter dated 22.09.2015 and in the show cause notice reference of such article is not given and it is the reporter who has misreported about the activity of the organization and even if the members. 4) Stating that the trust has not explained as to how it will conduct its activity on a charitable basis. Each of the objects of the appellant is to help its members and the general public, The appellant will educate the general public by holding number of seminars, workshops about the various government schemes o (affordable housing and then guide them and facilitate them to avail such benefits and also guide on various affordable housing projects available in the market. If any person of general public is being duped by the builders or any financial
3 ITA 5480/Mum/2015 institutions to represent on behalf of such individual to get the justices. The appellant has no single objects which are for making profit or is in the nature of trade, commerce or services for certain fees. This platform will be used to promote & educate about Government of India & State Government housing policy under mission housing for all by 2022. The appellant is in Operation for last four years and its main activities are Holding the public awareness seminars across India, Education to poor and Economically weaker Section of the Society, Personal Guidance to the general Public freely through empanelled Consultants etc. Holding the public Awareness Seminars across India : Appellant have only done educational seminars at different places making general public aware of the various precautions to be taken while buying a flat/ apartment and also availing the loans. Appellant is planning to hold seminars to educate the persons about the importance of owing the house, renting the house and then how such assets can be protected. Different seminars on different topics like Housing For all by 2022 announced by the Government of India, Housing schemes announced by state Governments through Municipal Corporations, Statutory Authorities like CIDCO, MHADA, MMRDA etc. Appellant has conducted few programs of this nature for the last 4 years and necessary broacher and handbills to this effect is submitted to the Respondent. Education to poor and Economically weaker Section of the Society: Appellant conducts more programs of education at Slums of Mumbai who need education about the eligibility of their housing, documents to be preserved to avail the Government schemes. Volunteers of the appellant educate them on various government policies, Rules and regulations. Personal Guidance to the general Public freely through empanelled Consultants: Similar to free medical camp arranged by the Charitable Trust by taking the help of specialized doctors to hold the free camp, appellant take the help of experts in the legal and housing fields to offer free consultancy to the general public either at different camps organized at different locations or at the office of the consultants on the designated dates. The consultants give them free of cost advice on the various precautions to be taken while buying a house or Property and the legal issues that may arise in the course of purchasing the property. Funding activities of the Appellant: seminars are organized with the help of sponsorship of another trust or association or local NGO or some commercial organization who are looking for advertisements. These are not commercial activities of the appellant. Appellant also accepts the, donations from the persons or industrialist who have seen the good work and also looking for a platform to help the poor or need through the organization like us. Presently, appellant have done the program with the help of other NGO and sponsorship or arranging the program by such NGOs without involving any amount from our side. Activities of the Appellant is to empower the economically weaker and low income group persons to own their house by their own contribution and by availing loans from different institutions by creating necessary awareness of the various projects of the government, how to fill the forms, free guidance on 4 ITA 5480/Mum/2015 legal documentation required to buy the houses through seminars, workshops, conferences, free advisory camps etc at different locations. Appellant neither locates the land and develops any property nor is engaged in providing loan facilities to its members.”
The brief facts of the case are that the assessee trust was constituted by a memorandum of association dated 16-05-2010 with the object to create common platform to assist, guide and facilitate the members and the general public to have a residence, as may be decided from time to time by the organization all over India on self financing basis. The trust also has objects to represent before the Government and other authorities for the relaxation of various provisions to facilitate housing especially for weaker sections, middle income and higher income group people in India. The assessee has filed an application for registration u/s 12AA of the I.T. Act, 1961. During the course of proceedings, the Commissioner of Income-tax (Exemptions) issued a show cause notice and called upon the assessee to file necessary details in order to process its application for registration u/s 12AA of the I.T. Act. In response, the assessee has filed various details, as called for by the Commissioner of Income- tax (Exemptions). The Commissioner of Income-tax (Exemptions), after considering submissions of the assessee, and also on taking note of some newspaper reporting, came to the conclusion that the objects of the assessee are not charitable in nature, which comes under the definition of ‘charitable
5 ITA 5480/Mum/2015 purpose’, as defined u/s 2(15) of the Income-tax Act, 1961. The Commissioner of Income-tax (Exemptions) further held that on perusal of the objects and other details filed by the assessee it was very clear that the assessee is mainly into promote housing among its members under self financing scheme and which cannot be considered as charitable objects so as to grant registration u/s 12A of the Act. Accordingly, he rejected application filed by the assessee.
Aggrieved by the order of Commissioner of Income-tax (Exemptions), assessee preferred appeal before us. The Ld.AR for the assessee submitted that the Ld. Commissioner of 4.
Income-tax (Exemptions) was erred in not considering application filed by the assessee for registration u/s 12A of the Income-tax Act, 1961 without appreciating the fact that the objects set out in memorandum of association of the trust are in the nature of charitable objects which comes under the third limb of the definition of ‘charitable purpose’, i.e. ‘any other objects of general public utility’. Therefore, merely for the reason that the assessee is creating awareness about the affordable housing by giving newspaper publicity, the Commissioner of Income-tax (Exemptions) could not have reached to a conclusion that the assessee is into the business of development of housing.
The Ld.AR further submitted that when we go through the objects of the assessee, it is abundantly clear that the trust is established for the main
6 ITA 5480/Mum/2015 purpose of holding public awareness seminars across India to take the poor and economically weaker sections of the society to have a house which is in consonance with the idea of State and Central Government to provide housing for all by 2022. The Ld.AR further submitted that at the time of registration what is required to be seen is whether the objects of the trust are charitable in nature and its activities are carried out in accordance with the objects. If at all the trust carries out certain activities which is not in the nature of charitable purpose, then the department is free to invoke provisions of section 11 to deny the benefit of exemption, therefore, rejection of application of the assessee on the ground that the assessee is proposed to have certain activities which are not in the nature of charitable purpose is not a ground to deny registration u/s 12A of the Act. In this regard, he relied upon the decision of Hon’ble Allahabad High Court in the case of CIT vs Red Rose School (2007) 217 C TR 304 (All).
The Ld.DR, on the other hand, strongly supporting the order of the Commissioner of Income-tax (Exemptions), submitted that newly inserted Proviso to section 2(15) is squarely applicable to the facts of assessee’s case, where the definition of ‘charitable purpose’ has been amended so as to deny benefit of exemption u/s 11(2) to industry and trade associations, who claim exemption from tax u/s 11 on the ground that their objects are for charitable
7 ITA 5480/Mum/2015 purpose as these are covered under ‘any other objects of general public utility’. The Ld.DR further submitted that on consideration of the arguments of the assessee, at the best, the activity of the assessee could be characterised under the principles of ‘mutuality’, but, cannot be considered as ‘charitable objects’, which comes under the definition of ‘charitable purpose’ as defined u/s 2(15) of the Income-tax Act, 1961. The Ld.Commissioner of Income-tax (Exemptions), after considering relevant facts, has rightly denied the benefit of registration and his order should be upheld.
We have heard both the parties, perused the materials available on record and gone through the orders of authorities below. It is an undisputed fact that the assessee trust was constituted by memorandum of association dated 16-05-2010, as per which, the objects of the trust was to create a common platform to assist, guide and facilitate the members and the general public to have a residence, as may be decided from time to time by the organisation all over India on self financing basis. We further note that the trust has initiated activities which were reported in newspapers, as per which, it was proposing to a housing scheme to build houses for its members in line of commercial organizations. Although the assessee stated to have incorporated with the objects of serving the general public by creating awareness about the affordable houses, but failed to file any evidence to prove that it has 8 ITA 5480/Mum/2015 conducted any programmes to create awareness amongst the general public about its activities. Further, on perusal of details brought out by the Ld. Commissioner of Income-tax (Exemptions) in his order in light of various details filed by the assessee, we are of the firm view that the assessee is into the activity of development of housing for its members on mutuality principles by pooling land and constructing houses thereon. Although the assessee may not have the object of earning a profit, but, that itself, would not give rise to a case to hold that the activities carried out by the assessee are in the nature of charitable objects which comes under the third limb of the definition of ‘charitable purpose’ as defined u/s 2(15) of the Act, i.e. ‘any other objects of general public utility’. Therefore, we are of the considered view that there is no error in the findings recorded by the Commissioner of Income-tax (Exemptions) while rejecting application filed by the assessee for registration of trust u/s 12A of the Act. Insofar as case laws relied upon by the assessee, we find that those are rendered under different set of facts and hence, the case laws are not considered. Accordingly, we confirm the order of Commissioner of Income-tax (Exemptions) and dismiss appeal filed by the assessee.
In the result, appeal filed by the assessee is dismissed.
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Order pronounced in the open court on 29-03-2019.