One of the
key preconditions for charitable trusts and institutions seeking to claim
exemption under Sections 11 and 12 of the Income Tax Act is registration under
the Act. Section 12A enacts that the provisions of Section 11 and Section 12
which provide for exemption of income to such trusts and institutions, will not
be applicable unless such trust or institution has made an application in the
prescribed form 17 for registration to the Commissioner or
Director, and it has been registered by the Commissioner or Director. Under the
amended provisions of this Section which have come into effect from 01.06.2007,
the earlier requirement of filing such an application within one year of
creation of the trust (or establishment of the institution) has been removed.
Similarly, the power of the Commissioner or Director to condone the delay in
filing such application and to grant the benefit of exemption retrospectively
from the date of creation of trust or establishment of the institution
has also been done away with. Under the
amended provisions, where an
application is filed on or after the 1st day of June, 2007, exemption under
Sections 11 and 12 shall be available only on a prospective basis from the
assessment year which immediately follows the financial year in which the
application is made.
Section 12AA of
the Income Tax Act and Rule 17A of the Income Tax Rules prescribe the procedure
for registration of a trust where an application for registration under Section
12A has been received by the Commissioner or Director. The application for registration has to
be made in Form No. 10A. It should be accompanied by the following documents:-
(i) Copy of
the instrument by way of which the trust or institution etc. is created;
(ii) If it
has been in existence in the years prior to the year in
which
application is made, accounts of the prior years (not exceeding three years).
On
receipt of the application, the CIT/DIT (E) has to pass an order either
registering the trust or institution or rejecting the application. The
registration may be rejected on the ground that the trust or its activities are
not genuine. Under sub-Section (2) of Section 12A such an order registering or
refusing registration has to be passed within a period of six months from
the end of the month in which the application is made.
The
conditions required for registration have been stated briefly and in simple
language. It mandates that the Commissioner or Director should satisfy himself
about:-
(i) the objects
of the trust or institution, and
(ii) the
genuineness of its activities.
It
follows that the Commissioner or Director will enquire whether the object(s) of
the trust or institution constitute religious or charitable purpose(s) within
the meaning of Section 2(15).
Section
12A(b) prescribes another important condition for claiming exemption under
Sections 11 and 12. It requires a trust or an institution whose income for the
previous year before claiming the deduction contemplated under Sections 11 and
12 falls within the tax bracket (i.e., its income exceeds the maximum amount which is not
chargeable to income-tax without giving effect to the provisions of Section 11 and
Section 12), to get its
accounts audited by an Accountant. The Accountant’s report in Form No.10B has to be filed along with the return of
income. A Chartered Accountant or other person mentioned in the Explanation to
Section 288(2) of the Act is authorised to carry out such an audit.
The following points should ordinarily
be kept in mind at the
time of making an application for
registration:-
(i) there should be a legally existent
entity which can be registered;
(ii) it should have a written instrument
of creation or written document evidencing its creation;
(iii) all its objects should be
charitable or religious in nature;
(iv) its
income and assets should be made applicable exclusively towards the objects
Mentioned in the object clauses, and the rules and by-laws;
(v) no part
of its income should be distributable or distributed, directly or indirectly,
to its members, directors or founders, related persons or relatives etc.
claiming through them;
(vi) in case
of dissolution, its net assets after meeting all its liabilities, should not be
revertible or reverted to its founder, members, directors or donors etc., but
used for the objects.
