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Income Tax Appellate Tribunal, “C” BENCH : KOLKATA
Before: Hon’ble Sri N.V.Vasudevan, JM & Shri Waseem Ahmed, AM]
Date of Hearing : 15.11.2017. Date of Pronouncement : 17.11.2017. ORDER Per N.V.Vasudevan, JM is an appeal filed by the Assessee against the order dated.25.05.2017 of. C.I.T (Exemption), Kolkata rejecting the application for grant of registration made by the assessee u/s 12AA of the Income Tax Act, 1961. ITA No.1341/Kol/2017 is an appeal filed by the Assessee against the order dated.25.05.2017 of. C.I.T (Exemption), Kolkata rejecting the application for grant of approval of the assessee u/s 80G of the Income Tax Act, 1961.
2. The Assessee is a Society registered under the West Bengal Society Registration Act, 1961. A certificate of Registration of Societies granted by the Registrar of Societies, WB, is at page – 29 of the paper book and is dated 29.09.2016. The objects for which the assessee was established as per the Memorandum of Association of the Society are as follows :- a)To acquire, establish, start, aid, run, maintain or manage educational institutes, libraries for the benefit of the public.
b) To arrange and organise lectures, debates, discussions, seminars & excursions for the diffusion of knowledge. c) To publish or cause to be published useful literatures, magazines, etc. without profit motive. d) To study, cultivate and demonstrate the art of music and dancing. e) To promote and encourage advancement of literary, cultural, political, religious & scientific education. f) To help the needy students of all communities for the prosecution of studies. g) To help the aged, sick, helpless and indigent persons. h) To work for the happiness of the down trodden needy people for their primary needs such as food, cloth, education and shelter etc. i) To import and develop social awareness among the illiterate women and men by organising awareness camps from time to time'. j) To organise an ambulance for free rendering service to the needy patients. k) To establish and maintain basic and adult education centre to remove the illiteracy.
1) To arrange and organise dead body carrier for free rendering service to help the needy people of the society. m) To open charitable dispensaries, first aid centre, blood donation camp from time to time and to generate awareness amongst people suffering from Thalasimia, Cancer and HIV Aids disease etc. n) To arrange and organise education on computer both in theoretical and practical classes among the needy students of the society without profit motive. o) To render relief to the suffering in times of famine, flood, drought, earthquake and other natural calamities. p) To educate the people about pollution and to arrange plantation of trees in the locality to make the world green. q) To arrange and organise old age-home to help the needy people of the society without profit motive. r) To arrange for medical treatment to the Deaf & Dumb and handicapped persons by rendering qualified doctors, medicines and other allied articles free of cost. s) To help the people in marriage, funeral and cremation of the dead. t) To help to organise self-help group based programme for augmentation of the livelihood opportunities of the people at the grass root level as being beneficial to the public or to a section of public. “
The assessee made an application for grant of registration u/s 12AA of the Act and also for grant of registration u/s 12AA of the Act and also for grant of approval u/s 80G of the Act on 04.01.2017. As far as registration u/s 12AA of the Act is concerned the requirements for grant of registration u/s 12AA of the Act are that the Commissioner granting registration should be satisfied about the charitable nature of the objects of the trust or institution and the genuineness of the activities of the trust or other charitable institution applying for grant of registration. As far as grant of approval u/s 80G of the Act is concerned one of the requirements of Rule 11AA of the Rules is that it should have been granted registration u/s 12AA of the Act.
The CIT(Exemption), Kolkata on going through the application for grant of registration u/s 12AA of the Act noticed that after getting the registration under the Societies Registration Act on 29.09.2016, the assessee started its charitable activities and had incurred expenses by providing medical facilities and paying fees to the doctors, giving medicines and providing spectacles. The AO noticed that payment to the doctors and staff, incurring of medical expenses as also purchase of spectacles had been made paid for by another charitable trust M/s Bimla Devi Bhutoria Charitable Trust. The said trust made payments directly to the doctors and staff and for purchase of spectacles. This trust however confirmed that those payments were in the form of donation by them to the Assessee trust. According to the assessee also the payments made by M/S.Bimla Devi Bhutoria Charitable Trust were accounted by it as donations. The Assessee did not open a Bank Account till 26.12.2016 and therefore the Assessee requested donations be made by payments directly for meeting expenses of the Assessee trust. It was the case of the assessee that it had opened a bank account only on 26.12.2016 and prior to this period they were making a request to the donors to meet the expenses of the assessee in lieu of donations directly to the assessee. M/s.
Bimla Devi Bhutoria Charitable Trust had also confirmed the aforesaid facts. The CIT(Exemption), Kolkata was of the view that on the payments by M/s Bimla Devi Bhutoria Charitable Trust they would claim such payments as donations and application of income for charitable purpose. The Assessee on the same payments would claim the same also as application of income for charitable purpose. This way there would be double benefit for the same expenditure. According to the CIT(Exemption) no expenditure was booked in the profit and loss account but the purchase of spectacles was claimed as application of income for charitable purpose. Another aspect noticed by CIT(E) was that there were no employees who are working for the assesee but salary and bonus have been claimed as expenses and application of income by the assessee.
Though the CIT(E) has made the observations set out in para-4 above, the main reason why he rejected the claim of the Assessee for grant of registration u/s.12AA of the Act was his view that for grant of registration u/s 12AA of the Act, the trust or other institution apart from showing genuineness of its activities should also prove that they had carried out charitable activities. The CIT(Exemption) in this regard referred to the decision of Hon’ble Kerala High Court in the case of Self Employers Service Society vs CIT 247 ITR 18 wherein there was an observation by the Hon’ble High Court that society claiming registration u/s 12AA of the Act should have done some charitable work. The CIT(E) after referring to the aforesaid decision held as follows :- “Therefore, it is abundantly clear that a trust or institution which is yet to start any activities or fails to furnish substantial proof cannot be granted registration u/s 12AA(1). In course of proceeding I was driven to the conclusion that in absence of proof of activity, registration u/s 12AA cannot be granted. Therefore the application for grant of registration u/s 12AA is hereby REJECTED on merit.”
As far as application of grant of approval u/s 80G of the Act is concerned the CIT(E) refused to grant approval and registration u/s 12AA have been rejected.
Aggrieved by the aforesaid orders of CIT(A) the assessee has preferred the present appeals before the Tribunal.
We have heard the rival submissions. As far as grant of registration u/s 12AA of the Act is concerned, it is clear from the order of CIT(E) that the only reason given by him for rejecting the assessee’s application for grant of registration u/s 12AA of the Act is that the trust or institution which is yet to start any charitable activity cannot be granted registration u/s 12AA of the Act on the basis of its objects which are charitable in nature. It is thus clear that the CIT(E) was satisfied with the objects of the assessee which were charitable in nature. Though the CIT(E) has made reference to the assessee’s action of having met its expenses for doing charitable activities by directing the donors to meet all these expenses directly, yet the CIT(E) has not drawn any adverse inference against the assessee in this regard.
The ld. Counsel for the assessee filed before us several decisions of the High Courts in which a view has been taken that at the time of grant of registration it is not proper to insist on charitable activity having been already carried out by the society or charitable institution seeking registration. This view has been taken by the Hon’ble Delhi High Court in the case of D.I.T. vs Foundation of Opthalmic & Optometry Research Foundation Centre in IT Appeal No.1687 of 2010 dated 16.08.2012 and the decision of Hon’ble Allahabad High Court in the case of CIT(E) vs M/s. S.M.Charitable Trust in IT Appeal No.63 of 2016 dated 01.08.2017. In this case the Hon’ble Allahabad High Court after making a reference to the decision of Kerala High Court in the case of Self Employers Services Society (supra) which was referred to by the CIT(E) in the impugned order refusing the registration u/s 12AA of the Act took the following view:
“4. Learned counsel for the parties at the outset could not dispute that issues raised in this appeal are squarely covered by Division Bench judgment of this Court in Commissioner of Income Tax-II Vs. R.S. Bajaj Society, (2014) 222 TAXMAN 111. The judgment reads as under:
"1. The appeal by the revenue under Section 260A of the Income-tax Act, 1961 arises from a judgment of the Income Tax Appellate Tribunal, Lucknow Bench dated 7 August 2013. The assessee had challenged before the Tribunal an order of the Commissioner of Income-tax-ll. Lucknow dated 6 September 2012 declining to grant registration under Section 12AA of the Income-tax Act, 1961. The only ground on which the CIT rejected the application for registration was that though the society was established in August 2011 with a dominant object of imparting higher medical education by establishing Medical Colleges, Hospitals and Research Centres, such charitable activities had not still been commenced. The provisions of Section 12M have been construed in the judgments of several High Courts which have been relied upon in a judgment of a Division Bench in Hardayal Charitable & Educational Trust v . CIT: [2013] 355 ITR 534/214 Taxman 655/32 taxmann.com 341 (All.) While following the view which was taken by the High Courts of Karnataka, Delhi and Punjab and Haryana, the Division Bench has held as follows:
The preponderance of the judicial opinion of all the High Courts including this court is that at the time of registration under section 12AA of the Income-tax Act, which is necessary for claiming exemption under sections 11 and 12 of the Act, the Commissioner of Income-tax is not required to look into the activities, where such activities have not or are in the process of its initiation. Where a trust set up to achieve its objects of establishing educational institution, is in the process of establishing such institutions, and receives donations, the registration under section 12AA cannot be refused on the ground that the trust has not yet commenced the charitable or religious activity. Any enquiry of the nature would amount to putting the cart before the horse. At this stage, only the genuineness of the objects has to be tested and not the activities, which have not commenced. The enquiry of the Commissioner of Income-tax at such preliminary stage should be restricted to the genuineness of the objects and not the activities unless such activities have commenced. The trust or society cannot claim exemption, unless it is registered under section 12AA of the Act and thus at that such initial stage the test of the genuineness of the activity cannot be a ground on which the registration may be refused.
The ITAT has held that in view of the judgment of the Division Bench of this Court in Hardayal Charitable & Educational Trust case (supra), the order of rejection by the Commissioner was contrary to the law as laid down. Moreover, the Commissioner did not raise any issue about the objects of the trust which the Tribunal found are clearly charitable in nature. Thus, the only ground which weighed with the Commissioner in declining to grant registration has been found to be contrary to law. The Tribunal has in the circumstance while allowing the appeal directed the Commissioner to grant registration under Section 12AA. The view of the Tribunal is based on the judgment of a Division Bench of this Court which follows the consistent body of law.”
The Hon’ble Allahabad High Court has also distinguished the decision of the Hon’ble Kerala High Court in the case of Self Employers Service Society (supra) as follows :-
“3. The learned counsel appearing on behalf of the revenue has also relied upon a judgment of the Kerala High Court in the case of Self Employers Service Society v. CIT: [2001] 247 ITR 18/[2000] 113 Taxman 703. The facts in that case are clearly distinguishable. The proposal to start a technical educational institution was made only after the rejection of the application by the Commissioner. Moreover, it was held by the Kerala High. Court that the society had not done any charitable work and its activities on the contrary had been carried out only for the purpose of generating incomes. “
The Hon’ble Allahabad High Court following the aforesaid decision dismissed the appeal of the revenue.
In the light of the aforesaid judicial pronouncements, we are of the view that in the order of CIT(E) the denial of registration u/s 12 AA of the Act to the assessee cannot be sustained. The registration u/s 12AA of the Act is therefore directed to be allowed to the assessee. Since the registration u/s 12 AA of the Act is allowed to the assessee and since the only reason for the CIT(E) to deny grant of approval to the Assessee u/s 80G of the Act was that there is no registration u/s 12AA granted to the assessee, the approval u/s.80G of the Act is also directed to be granted to the assessee. In the result both the appeals of the assessee are allowed.
Order pronounced in the Court on 17.11.2017. Sd/- Sd/- [Waseem Ahmed] [ N.V.Vasudevan ] Accountant Member Judicial Member Dated : 17.11.2017.
[RG Sr.PS] Copy of the order forwarded to:
1.Alipore Vivekananda Senior Citizens Society, 8B, Diamond Toer, 37, Diamond Harbour Road, Alipore, Kolkata-700027. 2. C.I.T.(Exemption), Kolkata. 3. CIT(DR), Kolkata Benches, Kolkata.