Ek Umeed Welfare Society, Fazilka vs Assessee

M/s. Ek Umeed Welfare Society, vs. Commissioner of Income Tax, Fazilka. Bathinda. (Appellant) (Respondent)

Appellant by:Sh.Sudhir Sehgal Respondent by:Sh.Tarsem Lal, DR

Date of hearing:09/03/2015 Date of pronouncement:17/03/2015

ORDER

PER B.P. JAIN, AM:

This appeal of the assessee arises from the order of the Commissioner

of Income Tax (In short, 'CIT'), Bathinda, dated 13.08.2013 against

rejection of registration u/s 12AA of the Income Tax Act, 1961 ( In short,

'the Act') . The assessee has raised the following grounds of appeal:

"1. That the worthy CIT, Bathinda, has erred in not allowing registration u/s 12AA of the Act which is totally unjustified and not according to law.

2. That the worthy CIT, Bathinda, has also erred in giving its finding that the application of Society for grant of registration u/s 12AA of the Act is premature in absence of any adverse 2 ITA No.615(Asr)/2013

finding regarding the aims, objects and genuineness of activities of the Society.

3. That the appeal is within the time and copy of order of CIT, Bathinda in original along with receipt of Rs.500/- deposited as appeal fee are also enclosed."

2. The brief facts of the case as arising from the order of the ld. CIT,

Bathinda, are reproduced for the sake of convenience:

"An application for registration u/s 12AA of the Income Tax Act, 1961 was filed by EK Umeed Welfare Society, Shakti Nagar, College Road, Fazika in Form No.10A u/s 12A (1) (a) of the Income Tax Act, 1961 on 22.03.2013.

2. In order to verify the genuineness of the activities of the applicant society/trust, the application was required to attend on 28.05.2013 and on further dates alongwith complete set of books of accounts and other relevant documents for the last three years. Sh. A.K. Periwal CA attended the proceedings from time to time and requisite information was furnished by him.

3. The Joint Commissioner of Income Tax, Range-II, Bathinda has not recommended the registration of the application u/s 12AA of the Income Tax Act, 1961 in his report submitted vide No. 12AA/13/2013- 14/276 dated 03.05.2013.

4. In this case, the trust was created vide Memorandum of Association dated NIL as date does not appear thereon and was registered with the Registrar of Societies on 09.11.2012. The application for registration u/s 12AA was received in this office on 22.03.2013. It has been noticed that till the date of application no worthwhile charitable activities were carried out by the application society w.r.t. charitable objects shown in the Memorandum of Association as is evident from the Income & Expenditure Account for the year ended on 31.03.2013 which is reproduced as under:

INCOME & EXPENDITURE ACCOUNT FOR THE YEAR ENDED ON 31.03.2013 To Function Expenses 3899.00 By Donations 39225.00 By Bank interest 10.00 To Help Needy Person 3 ITA No.615(Asr)/2013

Aid to needy person 500.00 Aid to Widows & Needy Families 4400.00 Ration distribution to Widows 8388.00 Clothes & Footwear to Ladies 1100.00 14388.00 To Help to Students Stationary & Books to Students 950.00 School Dresses & Suits 6484.00 Footwear to Students 2950.00 1100.00 To Society Expenses Advertisement 4250.00 Misc. Expenses 1600.00 215.00 6065.00 To Excess of Income over Expenditure 4499.00

--------- ------------

39235.00 39235.00

5. From the above Income & Expenditure Account for period ending 31.03.2013, it is noticed that the total donations have been shown at a negligible figure i.e. Rs.39.235/-. In view of the above, it is very much clear that there were negligible activities till the date of application and, therefore, no reasonable satisfaction can be recorded about the genuineness of the activities of the trust which is a pre-requisite u/s 12AA(1)9a) of the Income Tax Act,1961 for grant of registration u/s 12AA.

6. In view of the facts on record, the applicant institution does not qualify to be treated as charitable institution. Moreover, in view of nominal figure of receipts, the application of the society for grant of registration u/s 12AA of the Income Tax Act, 1961 is premature. Hence, its request for grant of registration u/s 12AA is not allowed and the application of EK Umeed Welfare Society, Shakti Nagar, College Road, Fazika filed on 22.03.2013 is hereby REJECTED keeping in view the above facts and relying on the judgment of Hon'ble ITAT, Amritsar in the case of M/s Sidana Educational and Welfare Society, Amritsar Vs. CIT-II, Amritsar in ITA No.431/ASR/2009 dated 18.12.2009."

4 ITA No.615(Asr)/2013 3. The ld. Counsel for the assessee, Mr. Sudhir Sehgal, argued that the

assessee has filed before the ld. CIT, a copy of Memorandum of Association

and Rules & regulation of the Society (Placed at PB 3-5 & 6-10) alongwith

copy of statement of affairs and income & expenditure account from

01.11.2012 to 06.03.2013 for the year on 31.03.2013 (paced at PB 11 & 13-

21). The Ld. CIT, has not pointed out any of the object of the assessee trust

or any activity of the assessee trust as non-charitable. The income &

expenditure account for the year ending 31.03.2013 has been reproduced by

the ld. CIT at page 2 of the order and is a matter of record. The assessee has

also filed necessary vouchers of the activities carried out during the year

ending 31.03.2013. The activities are w.r.t. aid to needy persons, widows

and needed family, ration distribution to widows, clothes, shoes, chapple to

ladies and help to students and other society expenses. Moreover, the

assessee has also filed before the ld. CIT, the 'Brief Notes of the Activities

of the Society' along with newspaper cuttings to substantiate the fact that

the activities of the Society have been widely reported in various

newspapers/media (placed at PB 27-40). The contribution of corpus funds

by Sh. Roshan Lal Khunger and Smt. Rakesh Rani W/o Sh. Roshan Lal

Khunger alongwith their affidavits and the sources were also filed before

the ld. CIT (PB 41-42). The assessee is a registered Society with the 5 ITA No.615(Asr)/2013

Registrar of Society dated 09.11.2013 and the application before the ld. CIT

was filed in Form No.10A and no defect in any of the document filed before

him has been pointed out in the order dated 13.02.2013. The defect pointed

out by the ld. CIT in para 5 is that the donations have been shown at a

negligible figure of Rs.39,235/- and the activities till the date of application

were negligible and therefore, reasonable satisfaction can not be recorded

about the genuineness of the activities of the Society. In this regard, the ld.

CIT himself admitted in his order that the assessee has carried out certain

activities which as a matter of fact are on record but for the year ending

31.03.2013 available at page-2 of ld. CIT's order. All the activities carried

out by the assessee are in consonance with the objects of the Trust which are

charitable in nature. If the activities are negligible according to the view

point of the ld. CIT, then the ld. CIT has no power to refuse registration u/s

12AA of the Act.

3.1. The Ld. Counsel for the assessee, Mr. Sudhir Sehgal, relied upon the

decision of the Hon'ble Gujarat High Court in the case of Commissioner of

Income Tax-1, vs. Kutchi Dasa Oswal Motor Pariwar Ambama Trust,

reported in (2012) 362 ITR 192 (Guj.) and the decision of the Hon'ble

Madras High Court, in the case of Director of Income-Tax (Exemptions) vs.

R.J.B.V. Vasudevan Educational and Charitable Trust, reported in (2015) 6 ITA No.615(Asr)/2013

370 ITR 517 (Mad) and the relevant parts of the decisions were read which

are applicable to the present facts and circumstances of the case.

Accordingly, the ld. Counsel for the assessee prayed to reverse the order of

the ld. CIT(A) and allow the registration so applied.

4. The Ld. DR, Mr. Tarsem Lal, on the other hand, relied upon the order

of the ld. CIT and argued that there are negligible activities and therefore, no

reasonable satisfaction can be recorded about the genuineness of the

activities of the Trust.

5. We have heard the rival contentions and have perused the facts of the

case. The undisputed facts in the present case are that the assessee has filed

the application for registration in Form 10A on 22.03.2013 alongwith

certificate of registration of Societies, dated 09.11.2012, copy of

memorandum of association, copy of Rules and regulation of the Society

and copy of statement of affairs upto 06.03.2013. The assessee also filed the

balance sheet, income & expenditure account for the year ending

31.03.2013, which is a matter of record. The income & expenditure account

has been reproduced by the ld. CIT at page 2 of his order, while granting

registration u/s 12AA (1) of the Act. The ld. CIT has to satisfy about the

objects of the trust and genuineness of its activities. The ld. CIT(A) has not

pointed out any of the object of non-charitable or any non-genuine activity. 7 ITA No.615(Asr)/2013

The assessee has filed 'brief notes of the activities of the Society' along with

newspaper cuttings to substantiate that the activities of the Society have been

widely reported in various news papers/media (PB 27-40), along with

various vouchers for the expenditure incurred. During the year ending

31.03.2013 starting from 01.11.2012 for five months, the assessee has

incurred expenditure of Rs.34,726/- out of donations received. The income

& expenditure has been incurred to help the needy persons, widows & needy

families, students and society expenses etc., which in fact, are in consonance

with the objects of the Society available at PB 3 to 5. On perusal of the same

alongwith 'brief notes of the activities of the Society' and newspapers

cuttings etc., placed on record, we find that none of the expenditure is found

to be of non-charitable nature and therefore, even if the activities of the

assessee Society and the donations are negligible according to the ld. CIT,

the ld. CIT cannot refuse registration u/s 12AA(1) of the Act. The reliance is

placed on the decision of the Hon'ble Madras High Court, in the case of

Director of Income-Tax (Exemptions) vs. R.J.B.V. Vasudevan Educational

and Charitable Trust (supra), where the facts of the case and decision of the

court is reproduced hereinbelow:

" The assessee-trust filed an application in Form 10A for registration under section 12AA of the Income-tax Act, 1961. The Director of Income-tax (Exemptions) found fault with the language in the trust deed holding that the assessee-trust could not act as a trustee 8 ITA No.615(Asr)/2013

in another trust or institution. He also found that for more than four years, there was no activity worth its name undertaken by the assessee-trust except some small amount of donations and the accounts submitted along with Form 10A were not the audited accounts for three years, as prescribed in Form 10B and, therefore, he rejected the application for registration. The Tribunal held that the Director of Income-tax (Exemptions) had not pointed out how the objects of the trust were not charitable or the activities of the trust were not genuine. In so far as the issue relating to filing of audited accounts for three years as required in Form 10B, the Tribunal held that non-filing of the audited accounts did not make any difference and that did not make the trust ineligible for registration. On appeal.

Held, dismissing the appeal, that at the time of application for registration the trust or the institution should produce the certified document evidencing creation of the trust with two copies of the accounts of the trust or the institution relating to the previous year or years. The assessee had submitted the accounts in Form 10A. The invocation of rule 17B would apply, in a case where the charitable institution was registered under section 12AA. The assessee was yet to obtain registration under section 12AA and, hence, rule 17B had no application. If the assessee satisfied the requirement of rule 17A and had submitted Form 10A along with requisite documents, the assessee was entitled to seek registration under section 12AA unless there was some material to decline such registration as is provided in the section. The original authority had not recorded his subjective satisfaction in this case. Also, the reasoning given by him was not in consonance with the provisions of law. He declined registration on the ground that the assessee had spent only small amounts towards charitable activities. The bona fides of the trust should not be doubted on this ground. The authority has to test the nature and the activity of the trust to grant registration. The original authority had not doubted the bona fides of the trust or the activity of the trust but on the ground that the trust had spent low quantum towards charitable activity, the authority had declined registration of the trust. A trust can only do activities within its financial capability. A trust is not measured by its financial clout but by its philanthropic disposition. Therefore, the interpretation given by the original authority declining to register the trust has no legal basis. Hence, the Tribunal was justified in setting aside the order of the original authority."

9 ITA No.615(Asr)/2013 6. Further, reliance is placed on the decision of the Hon'ble Gujarat High

Court in the case of Commissioner of Income Tax-1, vs. Kutchi Dasa Oswal

Motor Pariwar Ambama Trust, (supra) and the relevant decision in para 5 is

reproduced hereinbelow:

"5. It can thus be seen that u/s 12AA of the Act, Commissioner has to satisfy himself about the objectives of the trust and the genuineness of its activities. For such purpose, he has the power to call for such documents or information from the trust as he think are necessary. However, this does not mean that if the activities of the trust have not commenced, the Commissioner has authority to reject its application for registration on the ground that the Trust failed to convince him about the genuineness of the activities. That is what unfortunately the Commissioner did in the present case. In that view of the matter, we see no error in the Tribunal's impugned order reversing the order of the Commissioner. It is of course true that even if the activities of the trust have not commenced, if the Commissioner has sufficient material in his command, he may still come to the conclusion that he is not satisfied about the objectives of the Trust or the genuineness of its activities. We understand the decision of the Tribunal accordingly.

6. In the present case, however, merely on the ground that the activities of the Trust had not commenced, the Commissioner was persuaded to reject its application for registration, which in our opinion, was not appropriate and therefore, rightly interfered by the Tribunal.

7. In the facts and circumstances of the present case and in view of our

findings hereinabove and the decisions relied upon of various courts of law

referred to hereiabove, the ld. CIT(A) is not justified in refusing

registration u/s 12AA(1) of the Act and accordingly the order of the ld.

10 ITA No.615(Asr)/2013 CIT(A) is cancelled and ld. CIT(A) is directed to grant registration to the

Society, as applied u/s 12AA(1) of the Act. Thus, all the grounds of the

assessee are allowed.

8. In the result, the appeal of the assessee in ITA No.615(Asr)/2013 is

allowed.

Order pronounced in the open court on 17th March, 2015.

Sd/- Sd/- (A.D.JAIN) (B.P. JAIN) JUDICIAL MEMBER ACCOUNTANT MEMBER

Dated: 17th March, 2015 /SKR/ Copy of the order forwarded to:

1. The Assessee:Ek Umeed Welfare Society, Fazilka.

2. The CIT, Bathnda.

3. The SR DR, ITAT, Amritsar.

True copy By order

(Assistant Registrar) Income Tax Appellate Tribunal, Amritsar Bench: Amritsar.