ST. GEORGE TRUST,CHENNAI vs. CIT (EXEMPTIONS), CHENNAI

For that the Commissioner of Income Tax(Exemptions)erred in stating that the processing of application and granting of registration are carried in ITBA and that the application is processed by system. The discretion vested with the Commissioner of Income Tax(Exemptions) was not used to grant the registration.

The brief facts of the case are that the assessee is a Trust was incorporated on 13/04/2023 and also obtained registration u/s.12A of the Act, for the A.Y. 2024-25 to A.Y. 2026-27 vide Regn.No. ABGTS7296DE20231 dated 21/07/2023. Further, the assessee filed an application in Form 10A dated 09/08/2023 seeking recognition U/s.80G(5)(iv) of the Act and received an order of provisional approval on 16/08/2023 vide Regn.No. ABGTS7296DF2023101. Subsequently, the assessee filed an application in e-filing mode in Form No.10AB for recognition U/s.80G(5)(iii) of the Act on 03/10/2023. The details called for in the proceedings by the Ld.CIT(E), Chennai were submitted by the assessee on 10/04/2024 and 23/04/2024. On perusal of the :- 4 -: documents filed by the assessee the Ld.CIT (E) has rejected the application of the assessee seeking approval U/s.80G for the reason that the assessee has filed its application in Form 10AB as “Religious cum Charitable”, which is not eligible to be approved, by holding as under: “6. The assessee was asked to showcause as to why its application dated 03.10.2023 in Form No. 10AB should not be rejected on account of the above mentioned reasons.

In response to the same the applicant filed its response on 23.04.2024. The applicant in its reply has explained that while filing form 10AB, in Column 3 the nature of activities was wrongly mentioned as "Religious cum Charitable Trust' and in Column 5 objects of the applicants as "Religious.” The applicant has also explained that the objects of the trust apart from the single clause of engaging in construction and maintenance of places of worship also includes lot of nonreligious objects. It also has explained that so far the trust has engaged in providing educational support to needy students. In support of its claim it has cited ITAT Pune ruling in the Santshreshtha Gajajan Maharaj SevabhaviSanstha trust where 80G registration was allowed by the honourable Tribunal when majority of the objects were nonreligious nature. 9 The reply of the assessee has been considered but could not be accepted for the following reasons: i) The applicant in the application filed in Form 10AB mentioned the nature of activity of the trust as 'Religious cum Charitable' and also mentioned in the object column, Religious' as one of the objects. As per the provisions of the I.T.Act, 1961, approval u/s.80G cannot be granted to a Religious Cum Charitable Trust. ii) In the verification column of the application in Form 10AB, Sri Levi Paul Monohar, son of C S Levi, the Trustee of the applicant has declared that the details given in the form are true and correct to the best of my knowledge and belief. The Verification Column of the application in Form 10AB is reproduced here for the sake of clarity.

:- 5 -: Verification I, LEVI PAUL MONOHAR, son of C S LEVI, hereby declare that the details given in the form are true and correct to the best of my knowledge and belief. I undertake to communicate forthwith any alteration in the terms of the Trust, or in the rules governing the Institution, made at any time hereafter. I further declare that I am filling this form in my capacity as TRU(designation) , having Permanent Account Number (PAN) AVCPP2824L and that I am competent to file this form and verify it. Name: LEVI PAÙL MONOHAR Place: Chennai Date: 03-0ct-2023 iii)When the mistake was pointed out to the applicant, it has requested that registration may be granted to the trust as Charitable Trust ignoring the Religious objects mentioned in the application in Form m 10AB. However, the same cannot be accepted for the following reasons, iv) As per the provisions of the Income Tax Act, 1961, a trust or institutions can apply for registration either as Charitable or Religious or Charitable cum Religious but cannot apply for Charitable Trust with Religious objects. v) The CIT (E) can grant registration only based on the application filed by the applicant in Form 10AB. The System also process the application based on the application filed by the applicant. Processing of application and granting of registration are carried in ITBA and there is no functionality available in the system to change the objects mentioned in Form 10AB other than applied in the application filed in Form 10AB and grant registration. vi) Hence, the applicant's request for granting registration as Charitable cannot be accepted. In view of the above, the application in Form No. 10AB filed by the applicant on 03-10-2023 cannot be processed.

As explained in para 2 of this order, as per the provisions of section 80G(5) , if the application is made under clause (ii) or clause (ii) of the said proviso and the Principal Commissioner or Commissioner has not satisfied, he can reject the application as well as cancel the approval of the trust/institution, In this case, the application is filed by the applicant In clause(ii) of section 80G(5) of the I.T.Act 1961 and also has mentioned the nature of activity of the trust as 'Religious Cum Charitable' and also mentioned in the object column, Religious' as one of the objects. its application is not maintainable for the reasons Stated above in para 9 of this order. Hence, the application filed by the applicant on 03-10-2023 in Form No. 10AB u/s 80G(5) (ii) seeking approval u/s. 80G(5) of :- 6 -: the 1.T. Act, 1961 is rejected and its provisional approval if any granted earlier also cancelled.”

On this premise learned counsel for the petitioner further urges that in view of this provision, every year the Commissioner has to consider the ratio between the total income of the trust and the expenditure actually incurred for religious purposes and only if the substantive part of the income, that is to say more than 5 per cent of total income is incurred for religious purposes the registration of trust/fund under section BOG can be refused on that ground.

With this premise, it is further submitted by the learned counsel for the petitioner that the petitioner shall be satisfied if the writ petition is disposed of with the direction to the Commissioner to consider the case of the petitioner-trust for renewal of its registration with effect from the insertion of sub- section (SB) uninfluenced by the impugned order of rejecting the renewal for the assessment years 1995-2000. In other words, the petitioner's application for renewal with effect from 1-4-2000, should be considered keeping in view of subsection (SB) of section BOG.

Accordingly, the writ petition is disposed of with the direction that the petitioner's applications for renewal of registration with effect from 1-4-2000, under section BOG may be considered by the Commissioner independent of the impugned order dated 25- :- 11 -: 9-1998, keeping in view the provision of sub-section (SB) of section 80G.

The identical facts have been dealt in another case Santshrestha Gajanan Maharaj Vs. CIT(E) – ITAT, Pune – dated 06/12/2022 and decided the issue in favour of the assessee and held as below: “5. We have perused case records, heard the rival contentions, analysed the facts and circumstances in this case. The relevant provision of the Act for which the assessee-trust has applied for exemption is sec. 80G(5)(vi) of the Act. Now, for approval as per provision of section 80G(5)(vi) the first and foremost requirement which the institution or fund has to satisfy is "if it is established in India for a charitable purpose". The conditions contemplated by clauses (i) to (iv) to section 80G(5) are the conditions which the institution was formed must additionally fulfil so as to be entitled to the approval by the Commissioner. In this case the assessee- trust is established in India and is for a charitable purpose, greatest evidence is that it has got registration u/s 12AA of the Act. It is settled legal position that once registration has been granted to a charitable trust u/s 12AA of the Act, the question whether the assessee-trust is for charitable purpose or not itself does not arise. This is so since the Id. CIT Exemption gets satisfied regarding the charitable objects of the trust and genuineness of the activities conducted for the charitable purposes and only then registration u/s 12A is accorded to a particular institution or trust. Once this is there, the question should not arise again for ascertaining the charitable purpose of the trust. The objection that has been raised by the Id. CIT (Exemption) as per para 4.2 of his order that one of the main objects of the donations received by the assessee-trust from Shri Ganapati Oevasthan Trust during F.Y. 2015-16 is to construct Gajanan Maharaj Temple. In this regard, the assessee has also submitted to the Id. CIT (Exemption) the details of proposed accumulation or setting apart of amounts regarding construction of temple, gaushala, old age home, school for poor children and upkeep and maintenance of temple, etc. Thereafter at para 4.3 of :- 12 -: his order, the Id. CIT (Exemption) holds that as per the funds received as donation during F.Y. 201516 from the said Ganapati Devasthan Trust a substantial amount of fund the assessee intends to use for the purpose of construction of temple of Gajanan Maharaj and also intends to administrate and maintain the said temple which is the work of a pure religious activity. The Id. CIT (Exemption) opined that the object of the assessee-trust does not have any object regarding the construction and maintenance of the temple. In this regard, we would refer to the submissions made by the Id. Counsel for the assessee that as on date, the assessee has not constructed any temple. The assessee only intends to construct the temple and in such situation they would even approach the Charity Commissioner, Pune, for necessary amendments in the object clauses of the trust deed. Therefore, as on date, the assessee-trust has only performed activities of a charitable nature and the department is satisfied about the charitable nature of the assessee-trust because of which the Id. CIT (Exemption) has already granted registration u/s 12AA of the Act to the assessee. Even before us, Id. D.R did not raise any objection regarding noncharitable activities of the assessee-trust nor he could bring any evidence on record to demonstrate that the assessee trust is not doing any charitable activity. Regarding the objection raised by the Id. CIT (Exemption) that the assessee intends to utilise a substantial amount of funds received as donations during F.Y. 2015-16, for construction of temple of Gajanan Maharaj and for its maintenance, we have perused the entire order of the Jt. Charity Commissioner, Pune and therein at para 3 he has assigned an amount of Rs. 3,50,00,000/- out of total donations received by the assessee and this has to be spent for purchase of land, construction of temple, goshala, old age home and school for the poor students. Therefore, it cannot be said that a substantial amount the assessee proposes to spend on construction of the temple since all the aforestated expenses is to be incurred within the said amount. Furthermore, as on date, there has been no construction of the said temple. Therefore, the objection of the department that the assessee-trust intends to spend substantial amount of the said donation received for religious purpose is unsubstantiated and unfounded. The decision of Hon'ble Delhi High Court (supra) relied on by the Id. D.R is substantially different on facts as compared to the present case since therein the trust had mainly used the funds for construction of religious temple and no charitable activity was carried out. However, in the instant case of the assessee, the department has not disputed the charitable activities conducted by the assessee and as per the :- 13 -: directions of the Jt. Charity Commissioner, Pune, the construction of the temple, if at all it would be constructed, would involve only part of the total expenditure within the designated amount which has been directed by the Jt. Charity Commissioner Pune being the appropriate authority. The Id. D.R had also referred to the provision of section 80G(5)(ii) along with Explanation 3 and in this regard it is worthwhile to refer to the provisions of section 80G (58) which is as follows: "Notwithstanding anything contained in clause (ii) of sub- section (5) and Explanation 3, an institution or fund which incurs expenditure, during any previous year, which is of a religious nature for an amount not exceeding five per cent of its total income in that previous year shall be deemed to be an institution or fund to which the provisions of this section apply."

So therefore, it is a non-obstante clause taking care of section 80G(5)(ii) and the Explanation 3 and stating that the expenditure for a religious nature if it does not exceed five per cent of the total income then the said trust or institution shall be deemed to be an institution to which the provision of section 80G would apply. In this context, the assessee has given an undertaking that whenever the construction of temple would take place and the maintenance fund for the said temple it shall be in accordance with section 80G (58) of the Act. That, the assessee would even take necessary approval from the Charity Commissioner, Pune, before undertaking such activity. However, in the present context given the facts when the assessee is registered u/s 12AA of the Act and when the provision of section 80G{5)(vi) of the Act has been complied with, we do not see any reason for refusing the assessee the grant of exemption u/s 80G of the Act. The Department has also not brought out a case where they can prove through evidences that the assessee-trust has violated the stipulations contained in sec. 80G(58) of the Act. In fact, the revenue authorities have not demonstrated, anything showing substantial expenditures of the fund received in donation by the assessee for religious purposes and whether it is exceeding the permissible limit of 5%. It has also been mentioned by the Id. CIT (Exemption) that the assessee has not provided head-wise details of various expenditure as per para 4.3 of his order but all these details have been submitted before him and as annexed before us in the paper book. The Id. D.R did not refute these facts. In this scenario it will be also worth mentioning that while exercising the power to reject or accord approval u/s 80G(5) the :- 14 -: Commissioner acts as a quasi-judicial authority. Therefore, the conclusion arrived at by him is expected to be supported by valid and cogent reasons. It is also expected that he should apply his mind to the facts of each case and give reasons either to grant or refuse recognition/approval. This requirement is very much imperative on the part of the Commissioner particularly having regard to the statutory provision under which he functions. This proposition has been observed and upheld by the Hon'ble Andhra Pradesh High Court in the case of Tirumala Tirupati Devasthanam Vs. Chief C.I.T. (2001) 251 ITR 849 (AP). In the case of CIT Vs. Christian Medical College (2015) 274 ITR 17, it was observed and held by the Hon'ble Punjab & Haryana High Court that in a case where the assessee has been running and maintaining the Christian Medical college, Christian College of Nursing, where medical care and training the professionals were provided by the assessee society to everyone irrespective of their caste, creed, race, religion etc. the assessee was held to be entitled for grant of exemption/approval u/s 80G(5) of the Act. So therefore, if Trust/Institution incurs expenses for religious purposes which is inclusive and is only a small part of the income, and if the substantial work done by the trust is charitable in nature benefitting the public at large then the institution or trust has to be granted exemption u/s 80G of the Act. In the present case of the assessee, the department has not been able to make out a case through facts that the assessee is substantially a religious trust. That on examination of the facts and circumstances we set aside the order of the Id. CIT (Exemption) and direct him to grant exemption/approval u/s BOG of the Act to the assessee-trust. Grounds of appeal

In the facts and circumstances of the case since the assessee had committed a technical error in filling the form, we deem it appropriate to give one more opportunity to the assessee to rectify the form 10AB. We are of the opinion that :- 15 -: pure technical errors should not come in the way of dispensing of justice.

In light of the above, we do not countenance the impugned action of the Ld.CIT(E) in rejecting the application for approval of 80G(5) of the assessee and thereby set aside the order of the Ld.CIT(E) and to meet the ends of justice remit the issue to the files of Ld.CIT(E) denovo.

In the result the appeal of the assessee is allowed for statistical purpose. Order pronounced on 01st October, 2024.