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Registration of Charitable trust U/S 12A


Registration of Charitable trust U/S 12A

 

 

01.  An application seeking registration U/S 12A of Income Tax Act, 1961 was filed before commissioner of Income Tax on 30-05-2007.

02.  On receipt of application The Commissioner of Income Tax forwarded entire documents to the Assessing officer (Income Tax Officer) under which jurisdiction the applicant falls with a direction to submit report as per Performa vide Memo no. 101/2007-08 dt.11.06.2007.A copy of above forwarding was also given to:

 

 

      i) Concerned Range Additional Commissioner of Income Tax 

 

  ii) The applicant for information with following words – “He is required to furnish

 

- Books of Accounts

- Original M.O.A.

- Activities Report

 

Never date and time was fixed for hearing and the applicant on his own appeared before concerned jurisdiction assessing officer (Income Tax Officer)(not Commissioner’s office) and produced

 

– Books of Accounts

  - Original M.O.A.

- Activities Report

 

The concerned Assessing Officer (Income Tax officer)also deputed a team of Inspector’s to verify the status, activity etc. of applicant at applicant’s place.

Thus proceedings before Income Tax officer continued till 25.12.2007.

 

Meanwhile on 26.12.2007,the applicant received an order U/S 12AA of Income tax Act, 1961 made by Commissioner of Income tax rejecting the application for registration U/S 12A mainly on the ground that the applicant was asked to produce the books of accounts, original M.O.A.and activity report vide Memo no. 101/2007-08 dt.11-06-2007 but there was no compliance from the applicant.                     

 Section 12AA of of Income Tax Act, 1961 which deals specifically with Procedure for Registration lays down that: -

 

“Provided that no order under sub-clause (ii) shall the passed unless the applicant has been given a reasonable opportunity of being heard.”

 

i) Can it be concluded from above that no reasonable opportunity of being heard has been given to applicant and thereby violating Section 12AA because never notice fixing date and time of hearing was served on assesee and referred memo without specifying time and date and before whom to appear is not notice ?

ii)  What is the remedy available to the applicant other than moving Income Tax Appellate Tribunal ?

iii) Can the applicant file a rectification petition U/S 154 before commissioner of Income Tax on the ground that it is a glaring and obvious mistake of law for not providing a reasonable opportunity of being heard ?

iv) Can the commissioner pass rectification order U/S 154 giving registration to applicant U/S 12A subject to other condition being fulfilled ?

                

 
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(Guest)

0122222221

 
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Chartered Accountant


CIT can always rectify its order if it is mistake apparent from record. The real issue is this wheter it is a mistake and wether it forms part of the record. Mistake’ - Connotation of u Fresh determination of facts should not be involved - Oil India Ltd. v. CIT [1990] 183 ITR 412 (Cal.). u Misreading a clear provision is a mistake - CIT v. Mcleod & Co. Ltd. [1982] 134 ITR 674 (Cal.). u Application of wrong provision of Act or erroneous application of same will amount to mistake apparent on the face of record - CIT v. Peirce Leslie & Co. Ltd. [1997] 227 ITR 759 (Mad.). u Mistake in firm’s records is no basis for rectifying partners’ assessments - Swaran Yash v. CIT [1982] 138 ITR 734 (Delhi). u Applying an inapplicable provision is a mistake - T. Manickavasagam Chettiar v. CIT [1983] 143 ITR 269 (Mad.). u Relief granted contrary to statutory provisions is a mistake - CIT v. Sundaram Textiles Ltd. [1984] 149 ITR 525 (Mad.). u Proceedings cannot be initiated for adopting correct rate of rebate - I.T.C. Ltd. v. IAC [2001] 119 Taxman 1000 (Cal.). u Mistake should not involve statutory interpretation - CIT v. Satyanaray­an Bhalotia [1994] 74 Taxman 34 (Cal.). u Overlooking a non-discretionary but mandatory provision is a mistake - Addl. CIT v. India Tin Industries (P.) Ltd. [1987] 166 ITR 454 (Kar.); Addl. CIT v. Distt. Co-op. Bank Ltd. [1979] 119 ITR 142 (All.). u Explanation added to rule 1 of Order 47 of the Code of Civil Procedure in order to define an error or mistake apparent on the face of the record is equally applicable to section 154 - Geo Miller & Co. Ltd. v. Dy. CIT [2003] 262 ITR 237 (Cal.). Record - Meaning of ‘Record’ includes the entire proceedings - The ‘record’ referred to in section 154 does not mean only the order of assessment but it comprises all proceedings on which the assessment order is based and the ITO is entitled for the purpose of exercising his juris­diction under section 154 to look into the whole evidence and the law applicable to ascertain whether there was an error - Maharana Mills (P.) Ltd. v. ITO [1959] 36 ITR 350 (SC). ‘Record’ for purpose of section 154 does not merely mean assess­ment order; things which accompany return are also part of record - Annamallais Agencies v. CIT [2003] 260 ITR 478 (Mad.). ‘Record’ under section 154 means record of the case comprising the entire proceedings including documents and materials produced by the parties and taken on record by the authorities which were available at the time of passing of the order which is the sub­ject-matter of the proceedings for rectification. They cannot go beyond the records and look into fresh evidence or materials which were not on record at the time the order sought to be rectified was passed - Gammon India Ltd. v. CIT [1995] 214 ITR 50 (Bom.). Documents outside the record cannot be referred to - Under sec­tion 154, there has to be a mistake apparent from the record. In other words, a look at the record must show that there has been an error and that error may be rectified. Reference to documents outside the record and the law is impermissible when applying the provisions of section 154 - CIT v. Keshri Metal (P.) Ltd. [1999] 237 ITR 165 (SC). Records of any period can also be looked into - Section 154 does not either expressly or implicitly require that the authorities exercising power under this provision should limit their atten­tion only to the order sought to be rectified. The requirement that the mistake in the record be ‘apparent’ does not imply that no other relevant document should be looked into. If in the light of the other legally valid orders it is found that the original order contains mistakes which are apparent, the rectification of such mistakes is not barred under section 154. The object of the provision is the rectification of mistakes in the record and that object is ill-served if the authorities are compelled to preserve such mistakes in the order by asking them to wear blinkers and not look into relevant unimpeachable material such as the recti­fied order of assessment for the period preceding the assess­ment year in the light of which mistakes in the order should be rectified. It is neither necessary nor possible to set out exhaustively all the material that can possibly be re­garded as forming part of the “record” for the purpose of exami­nation under section 154(1). The ‘record’ for purpose of section 154(1) is the record available to the authorities at the time of initiation of the proceedings for rectification and not merely the record of the original proceeding sought to be rectified - CIT v. M.R.M. Plantations (P.) Ltd. [1999] 240 ITR 660 (Mad.). Entire record of the assessee can be looked into - The power of rectification under section 154 is to be exercised with reference to the records of the assessee available with the Assessing Officer and not with particular reference to the assessment alone. The error apparent on the face of the record cannot be said to be the record of one particular assessment but the entire record of the assessee relating to all the assessment years - Upasana Hospital and Nursing Home v. CIT [2002] 253 ITR 507 (Ker.). ANOTHER ISSUE IS THIS THAT IN THE LETTER ISSUED BY CIT , WHAT DOES IT APPEAR .........WETHER BOOKS WERE CALLED BY CIT OR AO NOW, ON THE FACTS OF YOUR CASE IF IT CAN BE ESTABLISED THAT PROCEEDINGS BEFORE AO IS PART OF RECORDS OF CIT , WHICH HE IGNNORED BEFORE PASSING ORDER U/S 12AA ,IT IS DEFINATELY A MISTAKE OF FACT , WHICH NEED TO BE RECTIFIED. CAUATION:TAKE CARE ITAT FILING HAS ALSO TIME LIMIT ........WHICH I FEEL IS A BETTER OPTION.......DUE TO LACK OF PROPER OPPORTUNITY ITAT SHOULD RESTORE THE MATER AND YOU WILL HAVE A 2ND INNING

 
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(Guest)

1. What is the requirement for forming a trust?
2. Can an individual NRI form it on his own?
2a. Will there be any tax implications for an NRI to
form such a Trust?
2b. Upon forming such a Trust I want to open a Bank
account in the name of the trust for transfer of
funds, which will be left intact until the trust finds
a proper use for it by way of purchase of land or
building or any other requirements for the old age
home to be under the trust.
3. Is a property pre-requisite to form a trust or
charitable organization?
4. What are the statutory requirements for the Trust?
5. Does it have to file Income/Expenditure statement
with government even if it does not have any activity
in the initial years? What will be the cost of filing
such report?
6. What will be the approximate cost of forming such a
Trust organization?
7. Please explain to the CA that my requirement is to
build a old age home for the elderly and from my side,
I may either donate a property, land or put some money
as my share of donation.
 

 
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(Guest)

PLEASE SEND ALL THE PROSSEGER OF REGISTRATION OF NGO UNDER 12 A SECTION OF INCOME TAX

 
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(Guest)

please tell me the details of registration of trusts and societies under income tax ,1961. also tell me the details of draft of memorandum of association of the exservice man

 
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(Guest)

Originally posted by :Guest
" 1. What is the requirement for forming a trust?
2. Can an individual NRI form it on his own?
2a. Will there be any tax implications for an NRI to
form such a Trust?
2b. Upon forming such a Trust I want to open a Bank
account in the name of the trust for transfer of
funds, which will be left intact until the trust finds
a proper use for it by way of purchase of land or
building or any other requirements for the old age
home to be under the trust.
3. Is a property pre-requisite to form a trust or
charitable organization?
4. What are the statutory requirements for the Trust?
5. Does it have to file Income/Expenditure statement
with government even if it does not have any activity
in the initial years? What will be the cost of filing
such report?
6. What will be the approximate cost of forming such a
Trust organization?
7. Please explain to the CA that my requirement is to
build a old age home for the elderly and from my side,
I may either donate a property, land or put some money
as my share of donation.
 
"

 
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(Guest)

ddd

 
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(Guest)

dddd

 

 
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(Guest)

What are the main requirement for registertion u/s 12A and approval yu/s 80G of the I.T.Act.

 
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