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TMI Blog2015 (1) TMI 1102X X X X Extracts X X X X X X X X Extracts X X X X ..... e that even though it is a fact that date of creation of trust is not specifically mentioned in the trust deed, however, the date of registration of the trust deed before the SRO i.e. 13/03/13 can be considered as the date of creation of trust. In so far as the absence of certain clauses, as mentioned in para 2 of ld. DIT(E)’s order is concerned, we are of the view that before refusing registration on the ground of absence of these clauses, ld. DIT(E) could have called upon assessee to explain on the issue and if necessary, asked assessee to make necessary amendments to the trust deed considering the fact that these clauses form part of a standard trust deed. However, without giving any opportunity to assessee to explain on the issue or make necessary amendment to trust deed, ld. DIT(E) was not justified in rejecting assessee’s application for grant of registration u/s 12AA. We consider it appropriate to set aside the impugned order of ld. DIT(E) and remit the matter back to his file to consider the issue afresh. - Decided in favour of assessee for statistical purposes. - ITA No. 551/Hyd/2014 - - - Dated:- 14-1-2015 - Shri B. Ramakotaiah And Shri Saktijit Dey,JJ. For the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eligion, caste and creed. Following the teachings of Lord Dattatreya, which is universal brotherhood-love all, serve all, help ever and hurt never . Ld. AR submitted that even reading of the objects would make it clear that they are of charitable nature and not for the benefit of any particular religious community, hence, the objections of the ld. DIT(E) is not tenable. Ld. AR submitted that even a trust having mixed objects of both religious and charitable nature cannot be denied registration u/s 12AA as there is no such bar u/s 11 of the Act. In support of such contention, he relied upon the following decisions: 1. M/s Shanthi Sadan Charitable Society Vs. DIT(E), ITA No. 1600/Hyd/12, dated 07/11/2013. 2. DIT (E) Vs. Seervi Samaj Tambaram Trust (Mad) [2014] 362 ITR 199 (Mad.) 3. Shree Swami Samarth Pariwar Vs. CIT, ITA No. 2506/Mum/11 dt. 22/08/12 4. CIT Vs. Dawoodi Bohara Jamat [2014] 364 ITR 31 (SC) 4. As far as the other allegations of ld. DIT(E) with regard to absence of certain clauses in trust deed and absence of date of creation of trust is concerned, ld. AR though admitted the fact that date of creation of trust is not mentioned in the trust deed, but, he s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cular section of people would be a charitable activity for or towards other members of the community or also public at large. Feeding animals or cow may be a religious activity for a particular community but may be charitable for others. Similarly, feeding poor people or giving water to thirsty may be religious for some but charitable for others. Analysing the objects of the trust by keeping the aforesaid principles in view, hon ble Apex Court finally held as under: 41.Therefore, the objects of the trust exhibit the dual tenor of religious and charitable purposes and activities. Section 11 of the Act shelters such trust with composite objects to claim exemption from tax as a religious and charitable trust subject to provisions of Section 13. The activities of the trust under such objects would therefore be entitled to exemption accordingly. 42. We would now proceed to examine the objects under the provisions of Section 13(1)(b) of the Act. It becomes amply clear from the language employed in the provisions that Section 13 is in the nature of an exemption from applicability of Sections 11 or 12 and the examination of its applicability would only arise at the stage of claim un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticular religious community or class or serves across the communities and for society at large. (Sole Trustee, Loka Shikshana Trust v. CIT, (1975) 101 ITR 234 (SC)). The section of community sought to be benefited must be either sufficiently defined or identifiable by a common quality of a public or impersonal nature. (CIT v. Andhra Chamber of Commerce, 55 ITR 722). 47.This Court in CIT v. Palghat Shadi Mahal Trust, (2002) 9 SCC 685 the muslim residents of Kerala constituted a trust for the purpose of constructing and establishing at Palghat-a-Shadi Mahal and other institutions for the educational, social and economic advancement of the Muslims and for religious and charitable objects recognised by Muslim law and later clarified that the proceeds would be utilized for the benefit for public at large and upon this basis, the trust made a claim for exemption from tax under Section 11. This Court held that the resolution clarifying the object would not validly amend the object of the trust-deed and since the object confined the benefit to only muslim community, it would be covered by the restriction under Section 13(1)(b) of the Act even though it functioned for public benefit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 11 of the Act. 6.2. In case of The Society of Presentation Sisters and others Vs. ITO, 318 ITR(AT)287, the Hon ble Third Member while concurring with the view expressed by Hon ble Accountant Member, held as under: It is clear from plethora of authorities where after considering the provisions of section 11(1)(a) that so far as the aforesaid provision is concerned, no distinction is made between charitable and religious purposes. A charitable institution can have religious purposes; whereas a religious institution may be partly charitable. Most of the decisions were given under the 1961 Act. Even where the decision was on consideration of 1922 Act, there is no material difference as is demonstrated in the above discussion. Their Lordships of the Supreme Court have held, as noted earlier, that charitable and religious purposes overlaps in India. Even otherwise relief and help to the poor, medical help to the needy, looking after of deity and temples (mosque, church included) are no doubt religious purposes but these are also considered as charitable in India. Therefore, the view taken in the two cases before me that exemption under section 11(1)(a) cannot be allowed to a ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of registration of the trust deed before the SRO i.e. 13/03/13 can be considered as the date of creation of trust. In so far as the absence of certain clauses, as mentioned in para 2 of ld. DIT(E) s order is concerned, we are of the view that before refusing registration on the ground of absence of these clauses, ld. DIT(E) could have called upon assessee to explain on the issue and if necessary, asked assessee to make necessary amendments to the trust deed considering the fact that these clauses form part of a standard trust deed. However, without giving any opportunity to assessee to explain on the issue or make necessary amendment to trust deed, ld. DIT(E) was not justified in rejecting assessee s application for grant of registration u/s 12AA of the Act. In the aforesaid facts and circumstances, we consider it appropriate to set aside the impugned order of ld. DIT(E) and remit the matter back to his file to consider the issue afresh. Ld. DIT(E) if thinks it appropriate may suggest the assessee to make necessary amendment to trust deed incorporating the clauses as mentioned in para 2 of his order. Once, such amendment to the trust deed is carried out by assessee, ld. DIT(E) may ..... X X X X Extracts X X X X X X X X Extracts X X X X
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