Section 12AA of Income-Tax Act, 1961 deals with Procedure for Registration of a Charitable Trust or institution
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After examination of the activities of the assessee samiti and after considering CBDT Circular No. 11/2008, dated 19-12-2008, it is found that the admitted facts of the case under consideration are that the assessee-trust is carrying on the activities in respect of medical relief. It is found that Samiti/institution/entities whose object is ‘education’ or ‘medical relief’ would continue to be eligble for exemption as charitable institutions even if they incidentally carry on a commercial activity.
The assessee is a club and all its activities are restricted to among its members and, therefore, ‘principle of mutuality’ applies in the instant case. It has been clarified by the Board vide its Circular No. 11 of 2008, dated 19-12-2008 that in such cases where principle of mutuality are applicable, registration cannot be cancelled simply by relying on the first proviso to section 2(15). No where it has been brought on the record that the activities of the assessee are not governed by ‘principles of mutuality’ or it has been dealing with non-members. Thus, from this aspect also first proviso does not apply to the instant case. In view of the above, the cancellation of registration under section 12AA(3) was not tenable.
The whole case revolves upon the lease deed dated 24.12.2004 executed between the lessor, Smt. Sudha Saraswat and the assessee-society through which the land measuring 5150.48 sq. meter was let out to assessee society for 30 years. Copy of the lease deed is appended with the assessment order. The assessee paid Rs. 10,000/- as premium and agreed to pay Rs. 150/- per month as rent of the demised property, i.e., 1800/- per annum.
Under section 12AA, the Commissioner is empowered to grant or refuse the registration and after granting registration, would be empowered to cancel and that too, only on two conditions laid down under section 12AA(3) of the Act. Whether the income derived from such transaction would be assessed for tax and also whether the trust would be entitled to exemption under section 11 are entirely the matters left to the assessing officer to decide as to whether it should be assessed or exempted.
Registration granted under section 12A, on 12th February 1996, and the benefits flowing therefrom, cannot be extended to the amended objects of the society unless the DIT examines the same and comes to a conclusion that the registration under section 12A, can be extended to the revised objects, memorandum and by-laws. It would be illogical to hold that once an institution is registered under section 12A, no matter whatever may be the changes in the objects, rules and regulations, for any number of times, the institution should be given the benefit of section 11 to 13 of the Act, in view of the original registration granted under section 12A.
If in any year, the gross receipts of the Institution exceeds Rs. 10 lakhs or Rs. 25 lakhs, as the case may be, then in that year, the Assessing Officer is empowered to examine the allowability of exemption u/s 11 but the same has no effect on granting the registration u/s 12AA of the Act.
Assessee has filed writ petition against order passed by the Director General of Income Tax (Exemptions), for denying them exemption under Section 10(23C)(vi) of the Income Tax Act, 196, on the ground that the aforesaid institute was not directly imparting education and had not employed teachers who were teaching or giving lectures to the students.
according to the provisions of sub-section (3) to Section 12AA, even after grant of registration, if the 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, he is empowered to pass an order in writing canceling the registration of such trust or institution after giving the assessee a reasonable opportunity of being heard.
CIT Versus Baba Deep Singh Educational Society (P & H High Court)- Jurisdiction of the Commissioner at the stage of processing application under Section 12AA of the Act is limited regarding whether the activities are genuine and in consonance with the objects of the trust or institution and where education is being imparted as per the rules and the factum of the establishment and running of schools is not disputed the same was a genuine activity and the enquiry regarding genuineness of the activities cannot be stretched beyond this.
Income derived from property held under trust or of an institution (‘trust’) wholly for charitable/religious purpose is exempt, if 85% of the income is spent on the objects of the trust, during the year. If the amount spent is less than 85% of the income, the shortfall is taxable, unless the trust has complied with the conditions mentioned in the table below.
