2012 (11) TMI 460 - AT - Income Tax

Cancellation of Registration granted u/s 12A - Held that - The fact that the Assessee was paying commission to persons who solicit students for studying in the Assessee s institution cannot lead to the conclusion that the Assessee is not imparting education. Similarly purchase of a BMW car, borrowing of loans from Sindhi Financiers, non-maintenance of regular books of accounts, violations of provisions of Sec.13(1)( c) of the Act in as much as the trustees were paid enormous salary are all by way of passing reference having no relevance to whether or not the Assessee was pursuing education as its main object. There are no facts brought out in the impugned order regarding the genuineness of the activities of the trust or as to whether the object of education was not pursued by the Assessee as its main and predominant activity. In fact, the order of the DIT(E) does not anywhere show that the assessee is not imparting education. The definition of Charitable Purpose as given u/s 2(15) of the Act refers to relief to poor, medical relief, education and the advancement of any other object of general public utility . - eleemosynary element is not essential element of charity. It is also not a necessary element in a charitable purpose that it should provide something for nothing or for less than it costs or for less than the ordinary price. The surplus generated, if it is held for charitable purpose and applied for charitable purpose of the assessee, and then the Assessee has to be considered as existing for a charitable purpose. There are enough safeguards provided in Sec.12 and 13 of the Act to ensure that personal benefits of the persons in control of the trusts are not treated as having applied for charitable purpose and for being brought to tax like provisions of Sec.13(1)(c) of the Act which restricts unreasonable and excessive payments to certain category of persons connected with a trust or other institution - In such circumstances, order u/s 12AA(3) of the Act, cannot be sustained - In the result,appeal of the assessee is allowed.

Issues Involved:
1. Cancellation of registration under Section 12AA(3) of the Income Tax Act, 1961.
2. Allegations of commercial activities and violation of Section 13(1)(c).
3. Amendment of the Trust Deed without prior approval.
4. Generation of surplus funds and purchase of luxury items.
5. Maintenance of accounts and availing loans in cash.
6. Payment of commission to solicit students.

Detailed Analysis:

1. Cancellation of Registration under Section 12AA(3):
The appeal challenges the cancellation of the assessee's registration under Section 12AA(3) by the DIT(E). The Tribunal examined the conditions under which such cancellation can occur, specifically if the activities are not genuine or not in accordance with the trust's objects. The Tribunal found no such findings in the DIT(E)'s order and noted that the charitable nature of the trust remained intact even after the amendment of the trust deed. The Tribunal emphasized that a mere alteration without affecting the charitable nature does not justify cancellation.

2. Allegations of Commercial Activities and Violation of Section 13(1)(c):
The DIT(E) alleged that the assessee was running the educational institution on a commercial basis and violating Section 13(1)(c) by paying excessive salaries to trustees. The Tribunal clarified that the definition of "charitable purpose" under Section 2(15) includes education and is not negated by generating surplus funds if those funds are used for charitable purposes. The Tribunal also noted that issues related to Section 13(1)(c) should be addressed during the assessment proceedings, not in the context of registration cancellation.

3. Amendment of the Trust Deed without Prior Approval:
The DIT(E) argued that the trust deed was amended without informing the department, which could alter the trust's objectives. The Tribunal reviewed the amendments and concluded that they did not change the charitable nature of the trust. The Tribunal distinguished this case from the Allahabad High Court decision cited by the DIT(E), where there was a drastic change in objectives. Here, the amendments reinforced the charitable purpose.

4. Generation of Surplus Funds and Purchase of Luxury Items:
The DIT(E) criticized the generation of surplus funds and the purchase of a BMW car, suggesting these actions were inconsistent with charitable purposes. The Tribunal countered that generating surplus funds does not disqualify a trust from being charitable if the surplus is used for charitable activities. The purchase of the car was justified as necessary for the trust's operations and did not affect its charitable status.

5. Maintenance of Accounts and Availing Loans in Cash:
The DIT(E) raised concerns about the maintenance of accounts and availing loans in cash. The Tribunal found that the migration to new accounting software explained the temporary irregularities in account maintenance. The Tribunal also dismissed the allegations about cash loans, noting that proper documentation was provided, and such issues should be examined during assessment proceedings.

6. Payment of Commission to Solicit Students:
The DIT(E) alleged that paying commissions to solicit students indicated commercial exploitation of education. The Tribunal disagreed, stating that such payments were for reimbursing expenses incurred in promoting the institution and did not detract from its charitable purpose of imparting education.

Conclusion:
The Tribunal found that none of the reasons provided by the DIT(E) justified the cancellation of the assessee's registration under Section 12AA(3). The Tribunal emphasized that the trust's activities remained genuine and aligned with its charitable objectives. Consequently, the Tribunal quashed the DIT(E)'s order and allowed the appeal.

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