Mundra House, 822-A, Shivaju Nagar, Civil Lines, jaipur-302006 9314501680, 9314501791

B.P.Mundra

मानवता से काम करें मन के सारे काम अपने आप हो जायेंगे

इस महीने के इम्पोर्टेंट काम
  • Home
  • GST
  • Cases Income tax
  • MCA
  • Subsidy
  • TDS
  • About Us
  • contact us
  • Login
    • Admin Login
    • Staff Login
    • User Login
  • Loan
  • Apply for job
  • Click Here
  • HOW TO
  • To file ITR for AY 2022-23 kindly give details (and also evidence if yes) of following
  • Categories
    • Articles
    • Authority
    • Benami Transactions (Prohibition)
    • client
    • Constitution of India
    • Finance Act 1994
    • formalities to be completed
    • GST
    • Happiness
    • HOW TO
    • Income Tax
    • Indian Evidence Act 1872
    • Job Application
    • MCA
    • Office system
    • Papers required for filing
    • Principal of mutuality
    • rajasthan public trust
    • Smile
    • Subsidy
    • work report

B.P.MUNDRA

Mundra House, 822-A, Shivaju Nagar, Civil Lines, jaipur-302006 9314501680, 9314501791


Rule 17A shows ‎that the only requirement to seek registration under section 12A is to furnish ‎documents evidencing creation of trust or establishment of institute in original

B.P.Mundra > Income Tax > Cases Income tax > 12A > Rule 17A shows ‎that the only requirement to seek registration under section 12A is to furnish ‎documents evidencing creation of trust or establishment of institute in original

admin November 15, 2019

12A, 12AA, 17A Rule, High Court, Punjab & Hariyana High Court

Loading

PUNJAB & HARYANA HIGH COURT held that a persual of rule 17A shows ‎that the only requirement to seek registration under section 12A is to furnish ‎documents evidencing creation of trust or establishment of institute in original, ‎which assessee had duly furnished in the form of trust deed, therefore, denial of ‎registration on the ground of registration of the society twice with Registrar of ‎Societies, was not correct. Also the CIT had not commented adversely on the ‎objects of the assessee-society. It was further recorded that the non-furnishing of ‎audited finan¬cial statements (Clearly as per the Rules, the requirement is ‎furnishing of only the accounts of the trust or institution seeking registration and ‎nowhere the word ‘audited’ accounts have been used) and being registered twice ‎were not relevant for establish¬ing whether the activities of the assessee were ‎genuine or not and registration of a society was not a precondition for granting ‎registration under section 12AA of the Act.‎
‎(2018) 402 ITR 301 (P&H) IN THE PUNJAB & HARYANA HIGH COURT
AJAY KUMAR MITTAL & AMIT RAWAL, JJ.‎
CIT (Exemptions) v. Mahavir Jain Society (Regd.)‎
Income Tax Appeal No. 231 of 2016‎
‎11 September, 2017‎
Appellant by: Denesh Goyal, Senior Standing Counsel
Respondent by: S.K. Mukhi, Advocate
JUDGMENT
Ajay Kumar Mittal, J.‎
The appellant-Revenue has filed the instant appeal under section 260A of the ‎Income Tax Act, 1961 (in short, “the Act”) against the order dated 30-9-2015 ‎‎(annexure A-2) passed by the Income Tax Appellate Tribunal, Division Bench, ‎Chandigarh (in short, “the Tribunal”) in ITA No. 910/CHD/2013, claiming the ‎following substantial questions of law :–‎
‎“(i) Whether the order passed by the Income Tax Appellate Tribu¬nal is contrary to ‎the facts and law, hence the Income Tax Appellate Tribunal order is perverse ?‎
‎(ii) Whether on the facts and circumstances of the case and in law the Hon’ble ‎Income Tax Appellate Tribunal was justified in holding that the assessee was ‎entitled to registration under section 12A on the ground that the Commissioner has ‎not commented adversely on the objects of the assessee-society whereas ‎documentary evidence asked for, that would have enabled examination of ‎genuine¬ness of activities, were not furnished by the assessee ?‎
‎(iii) Whether on the facts and circumstances of the case and in law the Hon’ble ‎Income Tax Appellate Tribunal was justified in holding that bona fide registration ‎of a society is not a precondition for granting registration under section 12AA ‎even when it had been brought on record that civil as well as criminal proceedings ‎were going on in vari¬ous courts, vis-a-vis disputes amongst the members of the ‎society, which led to conclusion that affairs of the society are not being run in a ‎manner that enures to the benefit of general public ?”‎
‎2. A few facts relevant for decision of the controversy involved as narrated in the ‎appeal may be noticed. The respondent-assessee is a society. It filed an ‎application dated 26-2-2013 for grant of registration under sec¬tion 12AA of the ‎Act. The Commissioner-I, Ludhiana, (in short, “the CIT”) vide the order dated 27-‎‎8-2013 (annexure A-l), refused to grant registration to the trust, inter alia, on the ‎ground that the assessee failed to produce the documentary evidence in support of ‎aims and objects of the society. The assessee did not submit audited financial ‎statements and offered no explanation regarding registration of the society twice ‎with the Registrar of Firms and Societies, Chandigarh on 12-9-1974 and 30-4-‎‎2009. Aggrieved by the order, the assessee filed an appeal before the Tribunal. ‎Vide order dated 30-9-2015 (annexure A-2), the Tribunal allowed the appeal and ‎held the assessee entitled to grant of registration under section 12A of the Act. It ‎was, inter alia, recorded by the Tribunal that the Commissioner had not ‎commented adversely on the objects of the assessee-society. It was also noticed ‎that the refusal of grant of registration to the assessee-society for offering no ‎explanation regarding registration of the society twice was also incorrect. It was ‎further recorded that the non-furnishing of audited finan¬cial statements and being ‎registered twice were not relevant for establish¬ing whether the activities of the ‎assessee were genuine or not and registration of a society was not a precondition ‎for granting registration under section 12AA of the Act. Hence, the instant appeal ‎by the appellant-Revenue.‎
‎3. We have heard learned counsel for the parties.‎
‎4. Section 12AA of the Act reads thus :–‎
‎“12AA.(1) The Principal Commissioner or Commissioner, on receipt of an ‎application for registration of a trust or institution made under clause (a) or clause ‎‎(aa) of sub-section (1) of section 12A, shall–‎
‎(a) call for such documents or information from the trust or insti¬tution as he thinks ‎necessary in order to satisfy himself about the genuineness of activities of the trust ‎or institution and may also make such inquiries as he may deem necessary in this ‎behalf; and
‎(b) after satisfying himself about the objects of the trust or insti¬tution and the ‎genuineness of its activities, he–‎
‎(i) shall pass an order in writing registering the trust or insti¬tution ;‎
‎(ii) shall, if he is not so satisfied, pass an order in writing refus¬ing to register the ‎trust or institution, and a copy of such order shall be sent to the applicant :-‎
Provided that no order under sub-clause (ii) shall be passed unless the applicant ‎has been given a reasonable opportunity of being heard.‎
‎(1A) All applications, pending before the Principal Chief Commis¬sioner or Chief ‎Commissioner on which no order has been passed under clause (b) of sub-section ‎‎(1) before the 1-6-1999, shall stand transferred on that day to the Principal ‎Commissioner or Commissioner and the Principal Commissioner or ‎Commissioner may proceed with such applications under that sub-section from the ‎stage at which they were on that day.‎
‎(2) Every order granting or refusing registration under clause (b) of sub-section ‎‎(1) shall be passed before the expiry of six months from the end of the month in ‎which the application was received under clause (a) or clause (aa) of sub-section ‎‎(1) of section 12A.‎
‎(3) Where a trust or an institution has been granted registration under clause (b) of ‎sub-section (1) or has obtained registration at any time under section 12A as it ‎stood before its amendment by the Finance (No. 2) Act, 1996 (33 of 1996) and ‎subsequently the Principal Commissioner or Commissioner is satisfied that the ‎activities of such trust or institution are not genuine or are not being carried out in ‎accordance with the objects of the trust or institution, as the case may be, he shall ‎pass an order in writing cancelling the registration of such trust or institution :–‎
Provided that no order under this sub-section shall be passed unless such trust or ‎institution has been given a reasonable oppor¬tunity of being heard.‎
‎(4) Without prejudice to the provisions of sub-section (3), where a trust or an ‎institution has been granted registration under clause (b) of sub-section (1) or has ‎obtained registration at any time under sec¬tion 12A as it stood before its ‎amendment by the Finance (No. 2) Act, 1996 (33 of 1996) and subsequently it is ‎noticed that the activities of the trust or the institution are being carried out in a ‎manner that the provisions of sections 11 and 12 do not apply to exclude either ‎whole or any part of the income of such trust or institution due to operation of ‎sub-section (1) of section 13, then, the Principal Commissioner or the ‎Commissioner may by an order in writing cancel the registration of such trust or ‎institution :–‎
Provided that the registration shall not be cancelled under this sub-section, if the ‎trust or institution proves that there was a rea¬sonable cause for the activities to be ‎carried out in the said manner.”‎
‎5. Section 12AA of the Act prescribes the procedure for registration of trust or ‎institution by the Principal Commissioner or the Commissioner after perusing the ‎objects of the trust or institution and the genuineness of its activities. The order is ‎required to be passed in writing.‎
‎6. In the present case, the assessee had filed an application on 26-2-2013 for grant ‎of registration under section 12AA of the Act before the Commissioner. Vide ‎order dated 27-8-2013 (annexure A-l), the Commissioner refused to grant ‎registration to the assessee-society, inter alia, on the ground of non-production of ‎documen¬tary evidence in respect of aims and objects of the society, absence of ‎audited financial statements and non-explanation regarding registration of the ‎society twice with the Registrar of Firms and Societies, Chandigarh. Aggrieved by ‎the order, the assessee filed an appeal before the Tribunal. The matter was ‎considered in detail by the Tribunal. It has been catego¬rically recorded by the ‎Tribunal that one of the objects of the society as mentioned in its bye-laws was to ‎provide free medical aid by opening hos¬pitals, diagnostic centres, maternity home ‎and by organizing special medical camps. These activities had also been ‎demonstrated in the previ¬ous three years by the respondent-assessee in its balance-‎sheet, income and expenditure account, receipts and payment account which were ‎pro¬duced before the Commissioner. Further, the Commissioner had not ‎commented adversely on the documents placed before it. With regard to the ‎reason that the assessee had not furnished audited financial statements, it has been ‎recorded by the Tribunal that the same were not relevant for establishing the fact ‎whether the activities of the trust were genuine or not. Even the provisions of the ‎Act do not require audited financial statements to be furnished while seeking ‎registration under section 12AA of the Act. Rule 17A of the Income Tax Rules, ‎‎1962, provides the documents which should accompany the application under ‎section 12A of the Act for registration of charitable or religious trust or institution. ‎As regards the plea that the assessee had offered no explana¬tion about the ‎registration of the society twice, it was recorded by the Tri¬bunal that registration ‎of a society was not a precondition for granting registration under section 12AA ‎of the Act. Thus, it was rightly concluded by the Tribunal that the Commissioner ‎was not justified in rejecting the application for registration of the assessee-society ‎by insisting on the conditions not contemplated by the statute. The relevant ‎findings recorded by the Tribunal in this regard read thus :–‎
‎“13. We find that one of the objects of the assessee society as stated at point No. 6 ‎in the bye-laws reproduced above was to pro¬vide free medical aid, by opening ‎hospitals, diagnostic centres, mater¬nity homes and by organizing special medical ‎camps. We also find that the assessee-society had clearly demonstrated the ‎carrying on of this activity in the previous three years through its balance-sheet, ‎income and expenditure account, receipts and payment account, filed before the ‎learned Commissioner. The learned Commissioner has not controverted or ‎commented adversely on these documents placed before it. Therefore we find that ‎the genuineness of the activities of the assessee-society is also estab¬lished. Further ‎we find that the learned Commissioner has erred in stating that no documentary ‎evidence were filed to sub¬stantiate the carrying on of the objects of the society, ‎despite the voluminous documents and information placed before him during the ‎proceedings as stated above.‎
‎14. We also find that the learned Commissioner has erred in rejecting the ‎assessee’s application under section 12A, for the reason that the assessee had not ‎furnished audited statement and that the assessee-society was registered twice. We ‎find that the afore-stated reasons are not pertinent for the purpose of establishing ‎whether the activities of the assessee-society were genuine or not. Audited ‎financial statements are not relevant for establishing the fact whether the activities ‎of the trust were genuine or not, which is cor¬roborated by the fact that even the ‎provisions of the Income Tax Act, 1961, do not require audited financial ‎statements to be furnished, while seeking registration under section 12AA. Rule ‎‎17A of the Income Tax Rules, 1962, list the documents which should accompany ‎the application under section 12A for registration of charitable or reli¬gious trust or ‎institution. At point No. (b) of the Rules it is stated that ‘where the trust or ‎institution has been in existence during any year or years prior to the financial ‎year in which the application for regis¬tration is made, two copies of the accounts ‎of the trust or institution relating to such prior year or years (not being more than ‎three years immediately preceding the year in which the said application is made) ‎for which such accounts have been made up7 have to be submitted. Clearly as per ‎the Rules, the requirement is furnishing of only the accounts of the trust or ‎institution seeking registration and nowhere the word ‘audited’ accounts have ‎been used. Therefore the non-fur¬nishing of audited financials cannot by itself be a ‎criteria for holding the activities of a trust or society as not being genuine and ‎therefore refusing grant of registration under section 12AA. Moreover, the learned ‎authorised representative demonstrated before us by referring to its paper book ‎pages 61-65, that reason for non-furnishing of audited results was duly explained ‎to the learned Commissioner. The learned authorised representative stated that the ‎assessee had appointed M/s. Shammi Garg & Co. chartered account¬ant, Ludhiana ‎as its auditors for the year 2009-10, and referred to page 61 of the paper book, ‎which was the appointment letter issued by the assessee-society to the chartered ‎accountant firm. The learned authorised representative, thereafter referred to paper ‎book page 62, which was the communication of the new auditors, with the ‎previous auditors, i.e., M/s. S. S. Periwal & Co., seeking no objection to their ‎appointment as auditors of the society. At paper book page 63, the learned ‎authorised representative reproduced the letter sent by the previous auditors to the ‎new auditors, objecting to their appointment. At paper book page 64, was placed ‎the letter sent by the assessee-society to the previous auditors, strongly objecting ‎to their refusal to grant NOC to the new auditors. The learned authorised ‎representa¬tive further drew our attention to the letter written by the assessee-‎society to the President of the Institute of Chartered Accountants of India to ‎resolve the dispute of appointment of auditors. The learned authorised ‎representative also stated before us that the dispute had not been resolved to date. ‎The learned authorised representative stated that in view of the same the assessee ‎was prevented from get¬ting its books audited. We find that the learned ‎Commissioner has not controverted the explanation of the assessee. In view of the ‎above facts and discussion, we hold that non-furnishing of audited financials ‎cannot be a pertinent consideration for holding the activities of the assessee-‎society as ingenuine. We therefore hold that the same cannot be treated as a ‎consideration for refusing to grant registration to the assessee-society under ‎section 12AA.‎
‎15. We further find that the refusal of grant of registration to the assessee-society ‎for offering no explanation regarding registration of the society twice is also ‎incorrect. The learned authorized representative, during the course of arguments ‎drew our attention to paper book pages 52, 58 and 60 whereby the assessee-‎society had vide its Letter dated 27-5-2013 and 22-8-2013 explained as follows :–‎
‎‘No enclosure of certificates dated 17-9-1974 and 30-4-2009 are there as noted in ‎your letter dated 21-5-2013. The society is working under the certificate issued on ‎‎17-9-1974 and the present working is also undergoing under it. No bad inten¬tions ‎are there. The society in the year 2009 was formed by the Ex-President and ‎Finance Secretary but which has no relevance as on date and the society ‎documents, i.e., governing body list on yearly basis is being submitted to ‎Registrar of Firms and Societies, Chan¬digarh for the society registered on 17-9-‎‎1974.’‎
We therefore find that the contention of the learned Commissioner that the ‎assessee had offered no explanation about the registration of the society twice is ‎not correct. In any case registration of a society is not a precondition for granting ‎registration under sec¬tion 12AA. A perusal of rule 17A of the Income Tax Rules, ‎‎1962, referred to above would show that the only requirement is to furnish the ‎documents evidencing the creation of the trust or establishment of the institute in ‎original, which we find, the assessee-society has furnished in the form of trust ‎deed.‎
‎16. In view of the facts stated above we hold that the learned Commissioner was ‎not right in refusing registration to the assessee-society for non-furnishing of ‎explanation regarding registra¬tion of the assessee-society twice.‎
In the case of CIT v. R.M.S. Trust (2010) 326 ITR 310 (Mad) it was held as under ‎‎:–‎
‎‘At this stage of considering application for registration under section 12A, only ‎inquiry which could possibly be made would be whether the applicant-trust has ‎made application and whether the accounts are maintained in the manner as ‎suggested in the said sec¬tion. The Commissioner was not justified in rejecting ‎application for registration for want of amended trust-deed since it is not a ‎prerequisite condition for registering the applicant as a trust, Tribunal was ‎justified in setting aside the order of the Commissioner and remitting the matter ‎for decision afresh.’‎
We therefore hold that the Commissioner was not justified in rejecting the ‎application for registration of the assessee-society by insisting on conditions not ‎contemplated by the statute.”‎
‎7. The learned counsel for the appellant-Revenue has not been able to show that ‎the view taken by the Tribunal is erroneous. He has also not been able to produce ‎any material on record to show that the approach adopted by the Tribunal is ‎legally unsustainable. Thus, no substantial ques¬tion of law arises. Consequently, ‎the appeal stands dismissed

Total Page Visits: 1595 - Today Page Visits: 5

← Previous post

Next post →

Categories

  • 1860 (1)
  • 1956 (1)
  • 1973 (1)
  • 2002 (1)
  • 2013 (1)
  • Articles (78)
  • Authority (1)
  • Benami Transactions (Prohibition) (1)
  • client (59)
  • Code of Criminal Procedure (0)
  • Companies Act (2)
  • Constitution of India (2)
  • Cr.P.C. (2)
  • Due dates (1)
  • Finance Act 1994 (0)
  • formalities to be completed (6)
  • GST (59)
  • Happiness (4)
  • HOW TO (47)
  • HUF Property (1)
  • Income Tax (310)
  • Indian Evidence Act 1872 (1)
  • Indian Penal Code (1)
  • invalid notice (1)
  • Job Application (0)
  • MCA (3)
  • Notice 148 (0)
  • Office system (9)
  • Papers required for filing (6)
  • PMLA Act (1)
  • Prevention of Money Laundering Act (1)
  • Principal of mutuality (1)
  • rajasthan public trust (2)
  • Smile (7)
  • Subsidy (5)
  • work report (2)
  • Archives

    • February 2025
    • January 2025
    • July 2024
    • October 2023
    • September 2023
    • July 2023
    • April 2023
    • March 2023
    • February 2023
    • January 2023
    • December 2022
    • October 2022
    • September 2022
    • August 2022
    • July 2022
    • June 2022
    • May 2022
    • April 2022
    • March 2022
    • February 2022
    • January 2022
    • December 2021
    • November 2021
    • September 2021
    • August 2021
    • July 2021
    • June 2021
    • May 2021
    • April 2021
    • March 2021
    • February 2021
    • January 2021
    • December 2020
    • November 2020
    • October 2020
    • September 2020
    • August 2020
    • July 2020
    • June 2020
    • May 2020
    • April 2020
    • March 2020
    • February 2020
    • January 2020
    • December 2019
    • November 2019

    Recent Posts

    • GST registration: को-ओनर जिसके नाम से बिजली का बिल है को GST Registration के लिए दूसरे ऑनर से एनओसी लेने की आवश्यकता नहीं है। FCA BPMUNDRA
    • FCA BPMUNDRA 9314501680 [email protected] क्या आयकर नोटिस 148 को इशू का नोटिस धारा 149 के अनुसार उस समय माना जाएगा जब वह नोटिस धारा 282 रूल 127 के प्रावधान के अंतर्गत प्रिसक्राइब्ड मोड ऑफ सर्विस पुरी की जाए। दिल्ली हाई कोर्ट ने 21 फरवरी 2025 मारुति सुजुकी की अपील को स्वीकार करते हुए धारा 148 में इशू नोटिस को इस आधार पर रद्द कर दिया कि नोटिस भले ही 31 मार्च 2016 को डिजिटल साइन हो गया लेकिन इश्यू 1 अप्रैल 2016 time barred होने के बाद को हुआ। Section 148, Section 282, Section 127, Section 149, time barred, notice, Delhi High Court, Quash, Quashed, Annulled
    • टीडीएस अमाउंट ज्यादा भर दिया है तो उसका रिफंड क्लेम करने के लिए जो सीबीडीटी ने 2 साल का लिमिटेशन पीरियड सर्कुलर से तय किया है के आधार पर आईटीओ रिफंड देने का मना नहीं कर सकता। यह सर्कुलर अल्ट्रा वायर्स दिल्ली हाई कोर्ट ने 31 जनवरी 2025 के फैसले में घोषित किया है। FCA BPMUNDRA
    • Rectify the filed GSTR-1 return in order to get ITC benefit
    • Whether claim of exemption under section 54F is allowable for capital gain on sale of shares which was sold in lieu of plot and construction and thereafter assessee made further payment towards remaining construction. The permission of transfer of property was not obtained in the time period as available in section 54F. ITAT KOLKATA allowed the deduction u/s 54F in the case of Basabdutta Dutta v. ITO vide IT APPEAL NO. 868 (KOL.) OF 2023 [AY 2014-15] on dated 11.07.2024. FCA BPMUNDRA 9314501680