Furnishing of Original copy of documents not mandatory for Section 12AA Registration from 19.02.2018
Case Law Details
Shrimad Dayanand Shiksha Samiti Bhilwada Vs CIT (ITAT Jaipur)
From the facts of the present case, we noticed that the assessee had filed an application before the ld. CIT (Exemption) for seeking registration u/s 12AA of the Act. The assessee had also furnished the copy of MOA notorized by the Notary Officer, Bhilwara. However, the ld. CIT (Exemption) rejected the application filed by the assessee on the ground that as per Rule 17A read with section 12AA(1)(b) of the Act , the certified copy of the instrument establishing the trust needs to be verified with originals. The ld. CIT (Exemption) also held that he is empowered to call for such documents/ information from the trust to satisfy himself about the genuineness of the activities of the trust or to make necessary enquiries as he may deem fit in this behalf. The ld. CIT (Exemption) further observed the since under rule 17A of Income Tax Rules, 1962, the assessee society/trust is required to produce original/ certified instrument regarding establishing the trust/society for verification but the assessee society/ trust has failed to comply with the said mandatory requirements under Rule 17A of Income Tax Rules. Therefore, the assessee society was not entitled for registration u/s 12AA of the Act.
We have analyzed the preamended rules as well as amended rules 17A of the Income Tax Rules which came into effect from 19-02-2018. In the present case, the application for seeking registration u/s 12AA of the Act was filed by the assessee society/ trust on 12-01-2019. Therefore, in such circumstances, the amended rule 17A was applicable and on bare perusal of the amended rule it is nowhere required by the assessee to furnish the original documents. On the contrary self-attested as well as self certified copy of each and every documents/instruments were sufficient for seeking registration. Therefore, under these circumstances, the insistence by the ld. CIT(Exemption) for asking original documents of the instruments is beyond understanding and contrary to the specific provisions of law and rules.
As per amended rule 17A of the Income Tax Rules, which are applicable in the case of the assessee, the assessee was not required to furnish the original copy of the documents rather self attested or self certified copy of each and every documents/ instruments was sufficient for the purpose of verification by the ld. CIT (E).
FULL TEXT OF THE ITAT JUDGEMENT
Both these appeals have been filed by the assessee against two different orders of the ld. CIT(Exemptions) both dated 31-07-2019 passed in the matter of u/s 12AA(1)(b) and u/s 80G(5)(vi) of the I.T. Act, 1961 respectively. The assessee has raised following grounds of appeal in the above mentioned respective appeals.
ITA No.1062/JP/2019
‘’1. That on the facts and in the circumstances of the case, the order u/s 12AA passed by the CIT (Exemptons) is bad in law and bad in facts.
2. That on the facts and in the circumstances of the case, the CIT (Exemptions) erred in rejecting grant of registration u/s 12AA of the Act.
3. That on the facts and in the circumstances of the case, the CIT (Exemptions) ought to have grant the registration u/s 12AA of the Act as the applicant samiti had fulfilled all the conditions laid down in the Act.
4. That on the facts and in the circumstances of the case, the CIT (Exemptions) erred in rejecting explanation furnished by the assessee in arbitrary manner.
ITA No. 1063/JP/2019
1. That on the facts and in the circumstances of the case, the order u/s 80G passed by ld. CIT (Exemption) is bad in law and bad in facts.
2. That on the facts and in the circumstances of the case, the ld. CIT (Exemption) erred in rejecting grant of registration u/s 80G of the Act.
3. That on the facts and in the circumstances of the case, the ld. CIT (Exemption) ought to have grant the registration u/s 80G of the Act as the applicant samiti had fulfilled all the conditions laid down in the Act.
4. That on the facts and in the circumstances of the case, the ld. CIT (Exemption) erred in rejecting explanation furnished by the assessee in arbitrary manner.
2.1 Since both the appeals of the assessee are interrelated and interconnected , therefore, first of all, we deal with the grounds of assessee raised by the ITA No. 1062/JP/2019. Brief facts of the case are that the assessee society had filed an application for seeking registration u/s 12AA of the Act. However, said application of the assessee was rejected by the ld. CIT (Exemption) vide order dated 31-07-2019 on the ground that the assessee had not submitted original documents regarding the establishment of trust/society as well as evidences in support of its claim.
2.2 Aggrieved by the order of the ld. CIT (Exemption), the assessee preferred the present appeal before us on the grounds mentioned hereinabove. All the grounds raised by the assessee are interrelated and interconnected and relates to challenging the order of ld. CIT (Exemption) in rejecting the application of the assessee trust/ society for seeking registration u/s 12AA of the Act. Therefore, we thought it fit to dispose off all the grounds through a consolidated order.
2.3 The ld.AR appearing on behalf of the assessee reiterated the same arguments as were raised by him before the ld. CIT (Exemption) and also relied on the written submission submitted before us which are reproduced below.
‘’Brief Facts: The appellant (hereinafter also referred to as “Samiti/Society”) is a charitable society, established long back and engaged in promoting nationality, education, personality development of the students without any discrimination of caste, creed and sex. Kindly refer amended objects (PB 6).
The facts as noted by the ld. CIT (E) the appellant filed an online application on 12- 01-2019 in Form No. 10A for seeking registration u/s 12AA of the Income Tax Act, 1961. The appellant was issued a letter/notice No. ITBA/EXM/F/41/2019-20/1015639105(1) dated 01.04.2019 requesting to submit certain documents/ explanations and also to produce original RC/MOA for verification. In compliance thereto, Shri G.P. Singhal, CA/AR attended and furnished details on various dates. The appellant society through its A/R was requested vide order sheet entry dated 27/05/2019 and letter/ notice dated 01/02-07-2019 to produce certified copy of MOA by the competent authority (i.e. the Registrar of Societies) for verification. He alleged and further observed that:
“The appellant through its A/R i.e. Shri G.P. Singhal furnished only a copy of MOA notarized by Notary Officer, Bhilwara. It is pertinent to mention that Rule 17A of the Income-tax Rules prescribe certain conditions which comprises furnishing of Original Deed/ Certified copy of Deed for verification.
04. In the light of the above section of the Act and Rules, the Commissioner of Incometax has been empowered to call for such documents or information from the trust or institution 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. Under such powers vested in CIT (E), the appellant was asked to file details vide letter dated 01/02-07-2019 as mentioned above.
05. As discussed above, the appellant did not submit original documents regarding establishment of the trust/society as well as evidences in support of his claim. Under 2 Rule 17A of Income Tax Rules, 1962 the appellant is required, to produce original/ certified instrument regarding establishing of the trust/society for verification but the same has not be done by the appellant.
06. Sufficient opportunities have been provided to the appellant to produce details and documents in support of his claim for registration u/s 12AA of the Income Tax Act, 1961 but appellant have failed to do so. In the light of the above facts, the application seeking registration u/s 12AA is hereby rejected and filed.”
Thus, the crux of the order of ld. CIT(E) is that as per Rule 17 A r/w S.12AA(1)(b) of the Act certified copy of instrument establishing the trust filed needs to be verified with original. The CIT is empowered to call for such document/ information to satisfy himself of the genuineness of the activities or to make necessary enquires. U/r 17A appellant is required to produce original/ certified instrument establishing the institution for verification and alleging failure to comply this part, he denied the registration. Hence this appeal.
1. Misreading of the Provisions/ Rules: – No Valid basis:
At the outset, it is evidently clear that the Ld. CIT (E) has referred to the pre-amended Rules 17A which stood prior to the newly substituted Rule 17A by the Income Tax (First Amendment) Rules, 2018 made effective from 19.02.2018. The preamended Rule read as under
Rule 17A substituted by the Income-tax (First Amendment) Rules, 2018, w.e.f. 19-2- 2018. Prior to its substitution, said Rule, as inserted by the Income-tax (Second Amendment) Rules, 1973, w.e.f. 1-4-1973 and as amended by the Income-tax (Fifth Amendment) Rules, 1989, w.e.f. 1-4-1988 and the Income-tax (Seventh Amendment) Rules, 2007, w.e.f. 1-6-2007, read as under:
“17A. Application for registration of charitable or religious trusts, etc.— An application under clause (aa) of sub-section (1) of section 12A for registration of a charitable or religious trust or institution shall be made in duplicate in Form No.10A and shall be accompanied by the following documents, namely: —
(a) where the trust is created, or the institution is established, under an instrument, the instrument in original, together with one copy thereof; and where the trust is created, or the institution is established, otherwise than under in instrument, the document evidencing the creation of the trust or the establishment of the institution, together with one copy thereof:
Provided that if the instrument or document in original cannot conveniently be produced, it shall be open to the Commissioner to accept a certified copy in lieu of the original.
(b) xxxxxxxxxxx”
However, the amended Rules, which are relevant for the present purpose, reads as under:
“[Application for registration of charitable or religious trusts, etc.
17A (1). An application under clause (aa) or clause (ab) of sub-section (1) of section 12A for registration of a charitable or religious trust or institution shall be made in Form No. 10A and accompanied by the following documents, namely:—
(a) where the trust is created, or the institution is established, under an instrument, self-certified copy of the instrument creating the trust or establishing the institution;
(b) where the trust is created, or the institution is established, otherwise than under an instrument, self-certified copy of the document evidencing the creation of the trust, or establishment of the institution;
(c) self-certified copy of registration with Registrar of Companies or Registrar of Firms and Societies or Registrar of Public Trusts, as the case may be;
(d) self-certified copy of the documents evidencing adoption or modification of the objects, if any;
X X X X”
In the present case, since the application seeking registration was filed on 12.01.2019, the amended Rule 17A was applicable. A bare perusal of the amended rule nowhere requires the appellant to furnish an original copy. On the Contrary, self-attested/ self-certified copy of each and every document/ instrument will be sufficient for seeking registration. Therefore, insistence of the ld. CIT is beyond understanding, contrary to the specific provisions of rules and law, hence, without jurisdiction. The impugned order deserves to the dismissed at this stage itself.
2. The facts are not denied that a copy of the Amended Memorandum of Association/ Deed (PB 6-10) duly attested by the notary public was already filed and is available on record as admitted by the Ld. CIT (E) also in para 2 Pg 1of impugned order. Please see Pr. 5 of Letter 2.05.2019 (PB 14). Moreover, the original Amended Deed was also produced/ vide Pr. 6 of letter dt. 25.05.2019 (PB 19-20).
3. All other conditions fulfilled: Pertinently, the ld. CIT(E) raised voluminous queries vide letter dated 01.04.19 (PB 11-13) raising as many as 26 queries/ issues and all of them were duly replied time to time, filing explanation and the required details were submitted by vide various letters dated 25.05.19 (PB 19-20), dated 10.06.19 (PB 21), dated 11.07.19 (PB 22). Thereapart, the appellant also submitted a statement of activity during FY 2018-19) in accordance with the object which are undoubtedly charitable in nature, the audited financial statements of accounts signed by independent Statutory Auditor already submitted vide reply dated 02.05.2019 as admitted by the Ld. CIT (E) also in the impugned order by observing that, in compliance thereto, Shri GP Singhal, CA (AR) attended and furnished details. The objects are undisputed charitable as per S. 2(15). T
The ld. CIT(E) could not raise any other adverse issue and felt satisfied on all other aspects i.e. the genuineness of the activities and objects of the institution being in accordance with law but the only basis of the rejection remained non-filing of the initial document establishing the institution, in original, which was a misconception on his part as submitted above.
4. Certified copy of original now available – Existence of Samiti proved: Further, the appellant having been created long back in the year 1985 with registration no. 230/85-86, the appellant expressed its inability to the ld. CIT vide its letter dated 25.05.19 (PB 19-20). At the same time the appellant also made a request to Registrar Society Bhilwara under Right to Information Act, 2005 vide letter dated 15.07.19 (PB 23-25), In response, the Registrar vide their letter no. 1484 dated 13.08.19 (PB 26) supplied the certificate copy of the original Constitution Deed, registration certificate and of various other papers placed (PB 31-38).
Firstly, thus when the certified copies of original papers itself has been made available by the Registrar of Society Bhilwara, there can’t be any doubt or dispute about the existence of the appellant Samiti. Secondly, even otherwise the appellant had already submitted a self- attested/ self- certified photocopy of the amended trust deed/ constitution (PB 6-10) and also produced the same in original vide Pr. 6 of letter dated 25.05.19 (PB 19-20). There apart, the appellant also submitted a statement of activity during FY 2018-19, the audited financial statements of accounts signed by independent Statutory Auditor and the PAN Number being AACAS1839C vide reply dated 02.05.2019 (PB 14-17). All these evidences fully proved the existence of the appellant Samiti.
Hence, the case of the appellant is covered by the amended Rule 17 A which requires only self-certified/ self-attested copies and also fully covered by the pre-amended Rule 17A(1)(b). Yet, however, the Ld. CIT (E) assumed the purported misconception and mis-reading.
5. Even otherwise non production of the originals of the initial trust deed, was a mere Technical breach of rules and being mere procedural, registration cannot be denied when admittedly substantive compliance has already been made, more particularly, when there is no adverse finding recorded by the Ld. CIT (E) on the other merits of the case.
6. Supporting case laws: The following case laws directly support the contention of the Assessee:
6.1 CIT (E ) Vs. M/s Arihanth Charitable Trust, Pali DBIT A No. 279/ 2017 vide order dated 14.11.2017 (DPB 1-3), by the Hon’ble Rajasthan High Court following the decision of Hon’ble Delhi High Court in the case of CIT(E) vs. Tsurphu Labrang in ITA 484/2016 vide order dated 01.08.2016, affirming the decision of ITAT holding as under:
“5. It was sought to be urged before the ITAT by the Revenue that there is a specific requirement of filing documents for creation of a Trust along with an application for grant of exemption. In the impugned order, the ITAT referred to Rule 17A (a) of the Income Tax Rules, 1962 which itself envisages the possibility of the Trust being created “otherwise than under an instrument” in which event it is sufficient if “the document evidencing the creation of the trust or the establishment of the institution, together with one copy thereof’ is provided. The proviso to Rule 17A(a) permits the Commissioner to accept even a certified copy in lieu of the original if the 5 instrument or document in original cannot conveniently be produced. It was rightly pointed out by the ITAT that it is therefore not essential that there must be an instrument evidencing the creation of a Trust.
6. The fact of the matter was that the Assessee claimed that it is an institution/trust created in the year 1159AD and no formal deed of trust was executed at that time. The 17th Karmapa, who is the supreme spiritual Head of Karma Kagyu Lineage, made a declaration of Trust on stamp paper on 29th day of March, 2011 at Delhi setting out the entire history of the Trust along with aims, objects and purposes. Various provisions with regard to the management of the Trust and its properties and the maintenance of accounts etc. were also set out. It was stated that the objects of the trust were wholly charitable and religious in nature. The ITAT has in its impugned order set out in some detail the contents of the said affidavit regarding the creation of the Trust in Central Tibet in 1159 AD and its objectives and activities over the years. The Court concurs with the ITAT that a formal deed of trust was not necessary for the grant of registration under Section 12A/12AA of the Act.
7. On the question whether the objects and purposes of the Trust were charitable thereby qualifying for registration, the ITAT has set out in its impugned order in detail, the objects of the Trust as declared in the affidavit filed by the 17th Karmapa. It concluded from reading of the various aims and objects that they were charitable in nature. It has been rightly pointed out by the ITAT that it is not necessary that present aims and objects of the Trust should be the same at the time of its establishment. As further rightly pointed out, the stage for examining if the income of the Trust was being applied for its objects would arise only when a return of income is filed by the Trust. The said issue would not affect the grant of registration.
8. The ITAT also examined whether the fact that the Trust was for the benefit of a particular community would debar it from exemption and registration under Section 12AA/12A of the Act. The said question was, and in the view of this Court rightly, answered in the negative. In particular, the Court concurs with the conclusion of the ITAT that “It is now well-settled that an objects beneficial to a section of the public is an objects of general utility. The intention of the institution/trust should be impersonal in nature and for a sufficiently defined and identifiable section of the public.”
6.2 B.S. Public Education Society Vs. CIT (2014) 19 NYPTTJ 3708 (Del) (DPB 510) wherein it was held: “The income and expenditure account and the balance sheet of the financial year 2010-11 were also furnished. The learned Commissioner in order to verify the claim of the assessee and also the activities of the assessee entertained the submissions of the assessee. The learned Commissioner denied registration to the assessee on the ground that as per r.17A(a) of the Income-tax Rules, 1962 the assessee was to submit the original instrument of its establishment together with the copy thereof and since the assessee has submitted only the photo copy/ certified copy of the instrument therefore the application was not complete and thus the application itself is not worth consideration for registration under s. 12AA of the Act. We find that the learned Commissioner has gone into too much technicalities more specifically when certified copy of the original instrument was duly filed by the assessee. If this was the sole criteria then nothing prevented the learned Commissioner to direct the assessee to file the original instrument. The second ground on which the assessee was denied registration, was that the assessee is not doing charitable activity. On perusal of record and after hearing the rival submissions we are 6 satisfied that the assessee is running a senior Secondary school, duly registered with CBSE and Board of School Education, Haryana. We have specifically perused the objects of the society, wherein the predominant object is imparting education. Therefore, we are not satisfied with the observation of the learned Commissioner that the assessee society is not doing any charitable activity.”
6.3 PR CIT (E) Vs. Dawoodi Bohra Masjid (2018 402 ITR 29/ 301 CTR 268 (Guj) (DPB 11-14) wherein it was held that “From the materials on record, it can be seen that the Tribunal had gone through the registration details of the assessee trust contained in the order of Wakf Board and was satisfied that full details of the functions of the trust were available which would establish the existence of the trust, its registration by the Gujarat State Wakf Board which also contained details of objects of the trust, manner of appointment of Mutawalli, etc. Clause (a) of r. 17A requires that the application of registration under s. 12A of a charitable or religious trust or institution would be accompanied by the following documents namely, where the trust is created or the institution is established, under an instrument, the instrument in original and where the trust is created or the institution is established, otherwise than under an instrument, the document evidencing the creation of the trust or the establishment of the institution. Thus, r. 17A nowhere envisages the existence of a trust deed or its registration. The factum of existence of trust can also be established by producing documents evidencing the creation of the trust. This is precisely what has been done in the present case. The order passed by Wakf Board dt. 20th Nov., 1999 recognises various Daudi Vora trusts and in case of present assessee also enlisted the objects of the trust, who would be the managers of the trust and how such managers would be appointed or removed. Tribunal was therefore justified in directing registration of trust under s. 12A.—Laxminarayan Maharaj & Anr. vs. CIT (1983) 37 CTR (MP) 240 : (1984) 150 ITR 465 (MP) relied on.” (Paras 6 & 7)
6.4 CIT (E) vs. Shri Mahavir Jain Society (Regd.) (2018 402 ITR 301/ 302 CTR 497) (PH) (DPB 15-21) wherein it was held that “The CIT refused to grant registration to the assessee-society, inter alia, on the ground of non-production of documentary 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. It has been categorically 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 hospitals, diagnostic centers, maternity home and by organizing special medical camps. These activities had also been demonstrated in the previous three years by the assessee in its balance sheet, income and expenditure account, receipt and payment account which were produced before the CIT. Further, the CIT 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 s. 12AA. As regards the plea that the assessee had offered no explanation about the registration of the society twice, it was recorded by the Tribunal that registration of a society was not a precondition for granting registration under s. 12AA. Thus, it was rightly concluded by the Tribunal that the CIT was not justified in rejecting the application for registration of the assessee-society by insisting on the conditions not contemplated by the statute. Counsel for the 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 question of law arises.” (Paras 6 & 7)
7 7. The denial to approval u/s 80 G by the CIT (E) is consequential to his denial to registration u/s 12 AA. Our submissions therein are relied upon. Thus, there remaining no valid ground behind denying the registration, the Ld. CIT (E) be directed to grant registration u/s 12 AA as also u/s 80 G of the Act. ‘’
2.4 On the other hand, the ld. DR relied on the order passed by the ld. CIT (Exemption).
2.5 We have heard the ld. counsel for both the parties and we have also perused the materials placed on record, judgements cited by the parties as well as the order passed by the Revenue authority. From the facts of the present case, we noticed that the assessee had filed an application before the ld. CIT (Exemption) for seeking registration u/s 12AA of the Act. The assessee had also furnished the copy of MOA notorized by the Notary Officer, Bhilwara. However, the ld. CIT (Exemption) rejected the application filed by the assessee on the ground that as per Rule 17A read with section 12AA(1)(b) of the Act , the certified copy of the instrument establishing the trust needs to be verified with originals. The ld. CIT (Exemption) also held that he is empowered to call for such documents/ information from the trust to satisfy himself about the genuineness of the activities of the trust or to make necessary enquiries as he may deem fit in this behalf. The ld. CIT (Exemption) further observed the since under rule 17A of Income Tax Rules, 1962, the assessee society/trust is required to produce original/ certified instrument regarding establishing the trust/society for verification but the assessee society/ trust has failed to comply with the said mandatory requirements under Rule 17A of Income Tax Rules. Therefore, the assessee society was not entitled for registration u/s 12AA of the Act.
2.6 For meticulously going through the provisions of pre-amended rule 17A as well as amended rules 17A, it is pertinent to take into consideration both the rules as under:-
‘’The preamended Rule 17A substituted by the Income-tax (First Amendment) Rules, 2018, w.e.f. 19-2- 2018. Prior to its substitution, said Rule, as inserted by the Income-tax (Second Amendment) Rules, 1973, w.e.f. 1-4-1973 and as amended by the Income-tax (Fifth Amendment) Rules, 1989, w.e.f. 1-4-1988 and the Income-tax (Seventh Amendment) Rules, 2007, w.e.f. 1-6-2007, read as under:
“17A. Application for registration of charitable or religious trusts, etc.— An application under clause (aa) of sub-section (1) of section 12A for registration of a charitable or religious trust or institution shall be made in duplicate in Form No.10A and shall be accompanied by the following documents, namely: —
(a) where the trust is created, or the institution is established, under an instrument, the instrument in original, together with one copy thereof; and where the trust is created, or the institution is established, otherwise than under in instrument, the document evidencing the creation of the trust or the establishment of the institution, together with one copy thereof:
Provided that if the instrument or document in original cannot conveniently be produced, it shall be open to the Commissioner to accept a certified copy in lieu of the original.
(b) xxxxxxxxxxxxxxx.”
However, the amended Rules, which are relevant for the present purpose, reads as under:
“[Application for registration of charitable or religious trusts, etc.
17A (1). An application under clause (aa) or clause (ab) of sub-section (1) of section 12A for registration of a charitable or religious trust or institution shall be made in Form No. 10A and accompanied by the following documents, namely:—
(a) where the trust is created, or the institution is established, under an instrument, self-certified copy of the instrument creating the trust or establishing the institution;
(b) where the trust is created, or the institution is established, otherwise than under an instrument, self-certified copy of the document evidencing the creation of the trust, or establishment of the institution;
(c) self-certified copy of registration with Registrar of Companies or Registrar of Firms and Societies or Registrar of Public Trusts, as the case may be;
(d) self-certified copy of the documents evidencing adoption or modification of the objects, if any;
X X X X”
2.7 We have analyzed the preamended rules as well as amended rules 17A of the Income Tax Rules which came into effect from 19-02-2018. In the present case, the application for seeking registration u/s 12AA of the Act was filed by the assessee society/ trust on 12-01-2019. Therefore, in such circumstances, the amended rule 17A was applicable and on bare perusal of the amended rule it is nowhere required by the assessee to furnish the original documents. On the contrary self-attested as well as self certified copy of each and every documents/instruments were sufficient for seeking registration. Therefore, under these circumstances, the insistence by the ld. CIT(Exemption) for asking original documents of the instruments is beyond understanding and contrary to the specific provisions of law and rules.
2.8 It is an undisputed fact that the copy of the amended memorandum of Association (MOA) deed duly attested by Notary Public was already filed by the assessee society/ trust before the ld. CIT (Exemptions) and copy of the said notorized documents has also been placed before us in the paper book . The assessee has also placed on record a letter dated 250-5-2019 wherein the original amended deed was also produced. The copy of the said letter is also filed at pages 19 to 20 of the paper book. We also rely on the decision of Hon’ble Rajasthn High Court in the case of CIT(E) vs Arihant Charitable Trust, Pali , DBIT Appeal No.279/2017 order dated 14-11-2017 wherein the Hon’ble Rajasthan High Court following the decision of Hon’ble Delhi High Court held as under:-
“5. It was sought to be urged before the ITAT by the Revenue that there is a specific requirement of filing documents for creation of a Trust along with an application for grant of exemption. In the impugned order, the ITAT referred to Rule 17A (a) of the Income Tax Rules, 1962 which itself envisages the possibility of the Trust being created “otherwise than under an instrument” in which event it is sufficient if “the document evidencing the creation of the trust or the establishment of the institution, together with one copy thereof’ is provided. The proviso to Rule 17A(a) permits the Commissioner to accept even a certified copy in lieu of the original if the 5 instrument or document in original cannot conveniently be produced. It was rightly pointed out by the ITAT that it is therefore not essential that there must be an instrument evidencing the creation of a Trust.
6. The fact of the matter was that the Assessee claimed that it is an institution/trust created in the year 1159AD and no formal deed of trust was executed at that time. The 17th Karmapa, who is the supreme spiritual Head of Karma Kagyu Lineage, made a declaration of Trust on stamp paper on 29th day of March, 2011 at Delhi setting out the entire history of the Trust along with aims, objects and purposes. Various provisions with regard to the management of the Trust and its properties and the maintenance of accounts etc. were also set out. It was stated that the objects of the trust were wholly charitable and religious in nature. The ITAT has in its impugned order set out in some detail the contents of the said affidavit regarding the creation of the Trust in Central Tibet in 1159 AD and its objectives and activities over the years. The Court concurs with the ITAT that a formal deed of trust was not necessary for the grant of registration under Section 12A/12AA of the Act.
7. On the question whether the objects and purposes of the Trust were charitable thereby qualifying for registration, the ITAT has set out in its impugned order in detail, the objects of the Trust as declared in the affidavit filed by the 17th Karmapa. It concluded from reading of the various aims and objects that they were charitable in nature. It has been rightly pointed out by the ITAT that it is not necessary that present aims and objects of the Trust should be the same at the time of its establishment. As further rightly pointed out, the stage for examining if the income of the Trust was being applied for its objects would arise only when a return of income is filed by the Trust. The said issue would not affect the grant of registration.
8. The ITAT also examined whether the fact that the Trust was for the benefit of a particular community would debar it from exemption and registration under Section 12AA/12A of the Act. The said question was, and in the view of this Court rightly, answered in the negative. In particular, the Court concurs with the conclusion of the ITAT that “It is now well-settled that an objects beneficial to a section of the public is an objects of general utility. The intention of the institution/trust should be impersonal in nature and for a sufficiently defined and identifiable section of the public.”
In view of the above discussions, we are of the considered view that as per amended rule 17A of the Income Tax Rules, which are applicable in the case of the assessee, the assessee was not required to furnish the original copy of the documents rather self attested or self certified copy of each and every documents/ instruments was sufficient for the purpose of verification by the ld. CIT (E). Therefore, taking into consideration all these facts and circumstances of the case, this appeal of the assessee society is restored to the file of the ld. CIT(E) for afresh examination of the issue in question and act accordingly. Thus the appeal of the assessee in ITA No. 1062/JP/2019 is allowed for Statistical purposes.
3.1 As regards the appeal of the assessee u/s 80G(5)(vi) of the Income Tax Act against the order 31-07-2019 of the ld. CIT(E), the Bench finds that the appeal of the assessee as to grant of approval u/s 80G is interconnected with the appeal of the assessee relating to registration u/s 12AA of the Act. Therefore, this appeal of the assessee is also restored to the file of the ld. CIT(E) for afresh consideration and act accordingly. Thus the appeal of the assessee in ITA No. 1063/JP/2019 is allowed for Statistical purposes
4.0. In the result, both the appeals of the assessee are allowed for Statistical purposes with no order as to cost.
Order pronounced in the open court on 03 /09/2020.
