M/s. Kashyap Charitable & Educational Trust, Jammu V. The Commissioner of Income-tax (J&k), Jammu

ITA 202/ASR/2014

• Counselvise Citation: 20220914 RSA 2014
• Duration Of Justice: 11 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-03-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 19-02-2015
• Assessment Year: misc
• Appeal Filed On: 01-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S V K SINGH
• Assessee Lawyers: P N ARORA
• Keywords: Charitable institution
• Section: 12A; 12AA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. A.D.JAIN, JUDICIAL MEMBER AND SH. B.P.JAIN, ACCOUNTANT MEMBER I.T.A. NO.202(ASR)/2014 PAN :AABTK8767B M/S.KASHYAP CHARITABLE & EDUCATIONAL VS. COMMISSION ER OF INCOME-TAX, TRUST, JAGTI TOWNSHIP, NAGROTA, (J & K) JAMMU. JAMMU. (APPELLANT) (RESPONDENT) APPELLANT BY:SH.P.N.ARORA, ADVOCATE RESPONDENT BY:S.V.K.SINGH, DR DATE OF HEARING:19/02/2015 DATE OF PRONOUNCEMENT:26/02/2015 ORDER PER B.P.JAIN,AM: THIS APPEAL OF THE ASSESSEE ARISES FROM THE ORDER OF THE COMMISSIONER OF INCOME TAX, J & K ( IN SHORT, THE CIT) DATED 0 4.03.2014 AGAINST THE ORDER PASSED U/S 12AA (B)(II) OF THE INCOME TAX ACT , 1961 ( IN SHORT, THE ACT). THE ASSESSEE HAS RAISED THE FOLLOWING GROUND S OF APPEAL: 1. THAT THE ORDER U/S 12AA(B)(II) OF THE INCOME-TA X ACT, 1961, PASSED BY THE LD. CIT, JAMMU, THEREBY REFUSING TO R EGISTER THE SOCIETY IS ILLEGAL, INVALID AND VOID ABINITIO AND T HE SAME IS LIABLE TO BE CANCELLED. 2. THAT THE CIT HAS MISERABLY FAILED TO APPRECIATE THAT THE TRUST/INSTITUTION WAS GENUINE AND REGISTRATION U/S 12AA(B)(II) ITA NO.202(ASR)/2014 2 OF THE ACT, SHOULD HAVE BEEN ALLOWED AS CLAIMED AS THE TRUST/INSTITUTION FULFILLED ALL THE REQUIREMENTS UN DER THE LAW. 3. THAT THE CASE WAS FIXED FOR HEARING BEFORE THE W ORTHY CIT AND NECESSARY INFORMATION WAS DULY FILED BEFORE HIM AN D ON THE SAME DATE THE CASE WAS FINALIZED. THE LD. CIT DID N OT DISCLOSE HIS MIND THAT HE WAS GOING TO REJECT THE APPLICATIO N OF THE TRUST/INSTITUTION FOR GRANT OF REGISTRATION. 4. THAT THE LD. CIT DID NOT APPRECIATE THAT THE TRU ST/INSTITUTION FULFILLED ALL THE CONDITIONS LAID DOWN UNDER THE LA W FOR GRANTING REGISTRATION U/S 12AA OF THE ACT AND THE WORTHY CIT HAS NOT BEEN ABLE TO PLACE ANY MATERIAL ON THE RECORD FOR J USTIFYING THE REFUSAL OF REGISTRATION U/S 12AA(B)(II). THE LD. CI T HAS NOT BEEN ABLE TO PLACE ANY MATERIAL ON THE RECORD BEFOR E COMING TO THE CONCLUSION THAT THE TRUST WAS NOT GENUINE. THUS , THE ORDER OF THE LD. CIT IS PURELY BASED ON CONJECTURES, SURM ISES & SUPPOSITION AND THE SAME DESERVES TO BE CANCELLED. 5. THAT THE LD. CIT, HAS MISERABLY FAILED TO GIVE AN OPPORTUNITY TO THE TRUST/INSTITUTION BEFORE REFUSING TO GRANT REGISTRATION WHICH IS THE POSITIVE REQUIREMENT OF LAW AND NOT AN EMPTY FORMALITY. 6. THAT THE ORDER OF THE LD. CIT IS ILLEGAL, INVALI D AND VOID ABINITIO AND IS LIABLE TO BE CANCELLED AND THE REGISTRATION AS CLAIMED U/S 12AA OF THE ACT, MAY BE ALLOWED FOR WHICH THE APPEL LANT IS CLEARLY ENTITLED. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE APPLICA TION IN FORM NO.10A WAS FILED BY THE ASSESSEE ON 21.05.2012 FOR REGISTR ATION U/S 12AA OF THE ACT, WHICH WAS REJECTED VIDE ORDER DATED 30.11.2012. NOT SATISFIED WITH THE SAID ORDER OF THE LD. CIT, THE ASSESSEE FILED THE APPEAL BEFORE THE ITAT, AMRITSAR BENCH, WHO VIDE ORDER DATED 04.09.2013 IN ITA NO.48 4(ASR)/2012 SET-ASIDE THE ISSUE IN DISPUTE BACK TO THE FILE OF THE LD. CI T, TO DECIDE THE SAME AFRESH ITA NO.202(ASR)/2014 3 AFTER AFFORDING OPPORTUNITY TO THE ASSESSEE. ACCORD INGLY, THE AO HAVING JURISDICTION OVER THE ISSUE WAS ASKED BY THE LD. CI T TO FURNISH FRESH REPORT AFTER EXAMINATION OF THE CASE. THE CASE WAS FIXED FROM TIME TO TIME AND NECESSARY DETAILS WERE FILED BEFORE THE LD. CIT, WH ICH WERE PLACED ON RECORD. THE LD. CIT REJECTED THE APPLICATION FILED FOR GRAN T OF REGISTRATION U/S 12AA OF THE ACT AND THE NECESSARY FINDINGS OF THE LD. CI T GIVEN VIDE PARA 3.1 TO 4.5 ARE REPRODUCED HEREINBELOW FOR THE SAKE OF CONV ENIENCE: 3.1. AFTER GOING THROUGH DIFFERENT CLAUSES OF THE TRUST DEED EXECUTED ON 16 TH DAY OF MARCH, 2011 IT IS OBSERVED THAT IT HAS BEEN ENSHRINED IN CLAUSE (1) OF THE SAID DEED THAT IN ORDER TO EFFE CTUATE THE SAID OBJECT OF CREATING AND ESTABLISHING A PUBLIC CHARITABLE TR UST, THE SETTLER/FOUNDER OF THE TRUST HAVE DELIVERED LO AND MADE OVER TO THE TRUSTEES A SUM OF RS.50,000/- WITH INTENT TO PART W ITH ALL THEIR RIGHTS, TITLE AND INTEREST CLAIM THEREIN AND VEST THE SAME IN THE TRUSTEES TO HAVE AND TO HOLD THE SAME AND THE INVESTMENT OR INV ESTMENT FOR THE TIME BEING REPRESENTING I.E. SAME AND ALL OTHER PR OPERTIES THAT MAY FOR THE TIME BEING REPRESENT THE TRUST ESTATE TOGET HER WITH ALL THE ADDITIONS AND ACCRETIONS THEREIN AND ALL ACCUMULATE D INCOME AND ANY GRANTS OR FUNDS RECEIVED FROM ANY OTHER SOURCE AT L ATER DATE AND ALL OTHER PROPERTY OR PROPERTIES THAT MAY BE ACQUIRED O UT OF THE SAME OR OTHERWISE MAY HEREAFTER BE SUBJECT TO THE TRUST FOR THE CHARITABLE OBJECTS AND THE PURPOSES AND USED HEREINAFTER EXPRE SSED WITH THE POWERS AND ON THE TERMS AND CONDITIONS HEREIN CONTA INED OF AND CONCERNING THE SAME. FROM THIS CLASE, IT IS CLEAR THAT THE SAID AMOUNT OF RS.50,000/- HAS BEEN CONTRIBUTED BY THE TRUSTEES AS CORPUS FUND BUT WHILE GOING THROUGH THE BALANCE SHEET AS ON 31. 3.2012, NO SUCH CORPUS FUND HAS BEEN CREATED. WHEN THE AO DURING THE COURSE OF EXAMINATION OF ACCOUNTS CONFRONTED THE PETITIONER, THE PRESIDENT OF THE TRUST VIDE LETTER DATED 28.10.2003, PARA -5 STATED THAT TRUSTEES VIRJEE MATTOO, AVTAR KRISHAN PANDITA, AJAY THAKUR, DAVINDE R SINGH HAS CONTRIBUTED EACH TOWARDS CORPUS FUND/UNSECURED LOAN S AS PER TRUST DEED. DUE TO CLERICAL MISTAKE THE AMOUNT OF CORPUS FUND HAS BEEN SHOWN CLUBBED WITHIN UNSECURED LOAN. THE MATTER WA S AGAIN VERIFIED ITA NO.202(ASR)/2014 4 WITH REFERENCE TO THE BALANCE SHEET PREPARED AS ON 31.3.2013 AND DULY SIGNED BY CHARTERED ACCOUNTANT ON 9.9.2013. IN THIS BALANCE SHEET ALSO, NO SUCH CORPUS FUND HAS BEEN SHOWN AND TOTA L AMOUNT OF RS.2,17,000/- HAS BEEN REFLECTED ON THE LIABILITY S IDE UNDER THE HEAD UNSECURED LOAN AND DETAILS OF WHICH HAVE BEEN GIV EN IN THE SCHEDULE FORMING PART OF THE BALANCE SHEET AND IN THE SAID SCHEDULE THE PARTICULARS OF THE PERSONS FROM WHOM THE UNSECU RED LOANS HAVE BEEN RAISED HAS BEEN GIVEN. THE PETITIONER HAS ALSO SUBMITTED THE CONFIRMATION LETTERS BEFORE THE UNDERSIGNED ON 30.1 1.2012 WHEREIN IT HAS CLEARLY BEEN MENTIONED THAT THEY HAVE GIVEN UNS ECURED LOAN WITHOUT ANY INTEREST TO M/S. KASHYAP CHARITABLE AND EDUCATIONAL TRUST, THUS THERE IS ALSO NO MENTION ABOUT CORPUS FUND. THIS CLEARLY FLOUTS THE ABOVE CLAUSE OF THE TRUST DEED AND ITSEL F LEADS TO THE CONCLUSION THAT THE TRUSTEES ARE NOT SINCERE IN RUN NING THE TRUST IN ITS PROPER PROSPECTIVE AS ENVISAGED IN THE TRUST DEED. THIS SHOWS THAT AT ITS INCEPTION STAGE, THE TRUSTEES HAVE VIOLATED T HE SAID CLAUSE OF THE TRUST DEED, ITSELF IS AMPLE PROOF TO LEAD TO THE CO NCLUSION THAT TRUSTEES ARE NOT SERIOUSLY DISCHARGING THEIR FUNCTIONS IN AC CORDANCE WITH THE TERMS OF THE TRUST DEED AND HENCE ON THIS ACCOUNT A LONE, THE APPELLANTS REQUEST FOR REGISTRATION IS REJECTED. 3.2. IN CLAUSE (XXI) AND (XXII) OF THE TRUST DEED, IT HAS BEEN PROVIDED THAT: (XXI) THAT IN CASE NEED AMENDMENT IN THE TRUST CAN ALSO B E INCORPORATED; (XXII) THAT THE TRUST SHALL HAVE THE RIGHT TO DEAL WITH T HE PROPERTY OF THE TRUST AND IN CASE OF NEED THE TRUST PROPERTY CA N BE DISPOSED OFF AND ALIENATED, THE TRUST CAN PURCHASE PROPERTY FOR PROPER FUNCTIONING OF THE TRUST, IF NEED SO ARISES. AS PER CLAUSE 15 OF THE TRUST DEED, IT HAS BEEN DEC LARED THAT THE TRUST IS IRREVOCABLE WHEN BOTH THE CLAUSES I.E. (XXI), (XXII) AND (15) ARE READ TOGETHER IT IS CLEAR THAT THERE IS TOTAL CONFL ICT. THE TRUST BY ITS VERY NATURE NEEDS TO BE IRREVOCABLE. A REVOCABLE TRUST IS ONE THAT CAN BE CHANGED AT ANY TIME THROUGH AN AMENDMENT INCLUDING THE TRUSTEES, THE BENEFICIARIES. BEING A REVOCABLE TRUST, THE ENTIRE AGREEMENT CAN BE CHANGED Y A TRUST AMENDMENT AND A RESTATEMENT. THE FUNDS AND ASSETS OF A REVOCABLE TRUST STILL BELONG TO THE SETTLER. S O A TRUST CLAIMING TO BE PUBLIC CHARITABLE TRUST AND SEEKING REGISTRATION U/S 12A OF THE ACT, ITA NO.202(ASR)/2014 5 HAS TO BE AN IRREVOCABLE TRUST. AS PER INCOME TAX O FFICE MANUAL TOO, REGISTRATION IS TO BE GRANTED ONLY TO IRREVOCABLE TRUST. AS PER SCHEME OF INCOME TAX ACT, THE BENEFIT OF TAX EXEMPTION IS TO BE GRANTED TO IRREVOCABLE PUBLIC CHARITABLE TRUST. GRANTING 12A R EGISTRATION AND OTHER CONSEQUENT TAX BENEFIT TO REVOCABLE TRUST WIL L DEFEAT THE VERY PURPOSE OF GRANTING TAX BENEFIT TO SUCH CHARITABLE INSTITUTION AS THE TAX BENEFIT WILL ACTUALLY GO TO THE SETTLER OF THE TRU ST. BUT IN THE CASE UNDER REFERENCE, THOUGH IN CLAUSE-15, IT HAS BEEN MENTION ED IN THE TRUST DEED IRREVOCABLE, BUT THE VARIOUS OTHER CLAUSES O F THE TRUST DEED DOES NOT SUPPORT THIS CLAUSE THAT IS WHY THERE IS C ONFLICT AMONGST VARIOUS CLAUSES OF THE TRUST DEED AND HENCE ON THIS ACCOUNT ALONE, THE APPLICANTS REQUEST FOR REGISTRATION IS REJECTE D. 3.3. AS PER AGREEMENT OF RENT DEED EXECUTED ON 23 RD OF NOV., 2013 BETWEEN MS. URVASHI ANAND W/O LATE SH. DEEPAK ANAND AND VEER JI MATOO GENERAL SECRETARY OF KASHYAP CHARITAB LE AND EDUCATIONAL TRUST, IT HAS BEEN STATED THAT WHEREAS MRS. URVASHI ANAND HAD HELPED THE TRUST IN PROVIDING A SPACE TO ACCOMMODATE THE STUDENTS OF THE KASHYAP PUBLIC SCHOOL FREE OF COST FOR THE PERIOD OF THREE YEARS W.E.F. APRIL, 2012. THERE WAS AGREEMENT BETWEEN MRS. URVASHI ANAND AND GENERAL SECRETARY TO TEACH HER KI DS PRIVATELY AT HER HOME AS HOME TUITION. WHEREAS GENERAL SECRETA RY WILL NOT CHARGE ANY TUITION FEE FROM THEM FOR THE PERIOD OF THREE YEARS AND WILL REMAIN CUSTODIAN FOR THE PROPERTY. . FROM THIS AG REEMENT, IN FACT, THE APPLICANT HAS TRIED TO JUSTIFY ITS CLAIM OF REG ISTRATION BY SHOWING ACTIVITIES UNDER ALL LIMBS OF THE DEFINITION OF CHA RITABLE PURPOSES AS GIVEN IN SECTION 2(15) OF THE ACT, THEREBY TRYING T O JUSTIFY NON PAYMENT OF RENT FOR USE OF ACCOMMODATION BY PROVIDING SERVI CE TO THE LANDLADY. AS ALREADY STATED THESE CLAIMS BEING UNSUBSTANTIATE D ARE REJECTED. THOUGH THERE IS NO STRICT REQUIREMENT OF THE TRUST HAVING CARRIED OUT ANY ACTIVITY BEFORE IT IS GRANTED REGISTRATION, THE UNSUBSTANTIATED CLAIM SHOW THAT APPLICANTS ACTIVITIES ARE NOT GENUINE A ND ALSO ARE NOT AS PER ITS MAIN OBJECTS. 4. A REFERENCE IS MADE TO THE PROVISIONS GOVERNING THE GRANT OF REGISTRATION U/S 12AA OF THE ACT, WHICH READS AS UN DER: 1) THE COMMISSIONER, ON RECEIPT OF AN APPLICATION FOR REGISTRATION OF A TRUST OR INSTITUTION MADE UNDER C LAUSE (A) OR CLAUSE (AA) OF SECTION(1) OF SECTION 12A, SHALL- ITA NO.202(ASR)/2014 6 A) CALL FOR SUCH DOCUMENTS OR INFORMATION FROM THE TRU ST OR INSTITUTION AS HE THINKS NECESSARY IN ORDER TO SATI SFY HIMSELF ABOUT THE GENUINENESS OF ACTIVITIES OF THE TRUST OR INSTITUTION AND MAY ALSO MAKE SUCH INQUIRIES AS HE MAY DEEM NECESSA RY IN THIS BEHALF AND B) AFTER SATISFYING HIMSELF ABOUT THE OBJECTS OF THE T RUST OR INSTITUTION AND THE GENUINENESS OF ITS ACTIVITIES, HE- I) SHALL PASS AN ORDER IN WRITING REGISTERING THE TRUS T OR INSTITUTION; II) SHALL, IF HE IS NOT SO SATISFIED PASS AN ORDER IN W RITING REFUSING TO REGISTER THE TRUST OR INSTITUTION. THUS, IT IS LAID DOWN IN THE ACT THAT THE COMMISSIO NER OF INCOME TAX, BEFORE GRANTING REGISTRATION U/S 12AA IS TO SATISFY HIMSELF ABOUT THE OBJECTS OF THE TRUST OR INSTITUTION AND GENUINENESS OF ITS ACTIVITIES. THEREFORE, IN VIEW OF THE FINDING THAT THE ACTIVITI ES OF THE APPLICANT TRUST ARE NOT GENUINE, REGISTRATION U/S 12A IS NOT PERMISSIBLE. 5. IN VIEW OF THE ABOVE FACS, APPLICATION FILED FOR GRANT OF REGISTRATION U/S 12A OF THE INCOME TAX ACT, 1961 IS HEREBY REJECTED AS DISCUSSED IN ABOVE PARAS, THEREFORE, I REFUSE TO RE GISTER THE TRUST IN TERMS OF THE PROVISIONS OF SECTION 12AA(B)(II) OF T HE INCOME-TAX ACT, 1961 AND THE APPLICATION OF THE APPLICANT IS ACCORD INGLY REJECTED. 3. THE LD. COUNSEL FOR THE ASSESSEE, MR. P.N.ARORA, ADVOCATE, SUBMITTED A CHART WITH REGARD TO THE OBJECTION OF THE LD. CIT AND THE EXPLANATION GIVEN BEFORE THE LD. CIT AND HIS ARGUMENTS WHICH ARE PLAC ED ON RECORD. AS REGARDS THE FIRST OBJECTION OF THE LD. CIT THAT AS PER TRUS T DEED, THE SETTLERS/TRUSTEES HAD CONTRIBUTED A SUM OF RS.50,000/- FOR CORPUS FU ND, WHICH IN FACT IS UNSECURED LOAN AS PER COPY OF BALANCE SHEET AS AT 31.03.2012 AND AS AT 31.03.2013. THE ORDER OF THE LD. CIT WAS PASSED ON 04.03.2014. IT WAS ITA NO.202(ASR)/2014 7 ARGUED BY THE LD. COUNSEL FOR THE ASSESSEE THAT FO UR TRUSTEES, NAMELY, VIRJEE MATTOO, AVTAR KRISHAN PANDITA, AJAY THAKUR AND DAVI NDER SINGH EACH HAVE CONTRIBUTED TOWARDS CORPUS FUND AS PER TRUST DEED BUT DUE TO CLERICAL MISTAKE, THE SAID CORPUS FUND WAS WRONGLY CLUBBED W ITH THE UNSECURED LOAN AND ACCORDINGLY WAS DEPICTED AS UNSECURED LOAN IN THE BALANCE SHEET AS AT 31.03.2012 & AS AT 31.03.2013. THE COMPLETE DETAIL S WERE GIVEN BEFORE THE AO THAT THE SAID TRUSTEES HAVE CONTRIBUTED THE MON EY AS CORPUS FUND AS WELL AS UNSECURED LOAN TO THE SAID TRUST. THE LETTER A ND THE DETAILS PRODUCED BEFORE THE AO AND THE LD. CIT(A) ARE AVAILABLE AT P B 93 TO 95. THE NECESSARY DETAILS OF THE CORPUS FUND CONTRIBUTED B Y THE TRUSTEES AND THE UNSECURED LOANS GIVEN TO THE TRUST IS AS UNDER: NAME CORPUS FUND UNSECURED LOAN TOTAL VEERJI MATTO R/O H.NO.80- 2B/B ROOP NAGAR ENCLAVE JAMMU. 15000 15000 AJAY THAKUR R/O 66/7, VISHWA BHARTI COLONY AKALPUR JAMMU 15000 2000 17000 DAVINDER SINGH R/O GUJRAL ENCLAVE GOL GUJRAL TALAB TILLO JAMMU 15000 2000 17000 AVTAR KRISHAN PANDITA R/O KAILASH VIHAR KOTHIA NATARA BARNAI JAMMU 5000 12000 17000 TOTAL 50000 ITA NO.202(ASR)/2014 8 4. THE NECESSARY CONFIRMATION FORM THE SAID TRUSTEE S ARE AVAILABLE AT PB 142, 145, 148 & 147 CONFIRMING OF CONTRIBUTING TOWA RDS THE CORPUS FUND TO THE TRUST. THEREFORE, IN THE FACTS AND CIRCUMSTANCE S, THE LD. CIT(A) IS NOT JUSTIFIED IN CONCLUDING THAT THE ASSESSEE TRUST HAD VIOLATED CLAUSES OF THE TRUST DEED AND THE APPLICATION FOR REGISTRATION SHOULD HA VE NOT BEEN REJECTED. 5. AS REGARDS THE IRREVOCABLE PROVISIONS IN THE TRUST DEED PLACED AT PAGES 18 TO 39, THE OBJECTION OF THE LD. CIT WAS THAT CL AUSE NO.3(XXI) AND 3(XXII), IF READ WITH CLAUSE 15 ARE CONTRADICTORY AND THEREF ORE, THE TRUST IS IRREVOCABLE TRUST AND THEREFORE, CANNOT BE GRANTED REGISTRATIO N U/S 12AA OF THE ACT. IN THIS REGARD, THE LD. COUNSEL FOR THE ASSESSEE ARGUE D THAT FROM THE READING OF THE SAID CLAUSES, THERE IS NO AMBIGUITY IN THE VARI OUS CLAUSES OF THE TRUST DEED AS MENTIONED BY THE LD. CIT, WHICH CAN PROVE THAT THE TRUST IS IRREVOCABLE TRUST . AS REGARDS THE CLAUSE 3(XXI), THE TRUST HAS THE POWER TO MAKE AMENDMENT IN CASE OF NEED DOES NOT PROVE THE TRUST AS IRREVOCABLE TRUST. AS REGARDS CLAUSE 3(XXII) WHERE THE TRUST HAS RIGHT TO DEAL WITH THE PROPERTY OF THE TRUST AND IN CASE OF NEED THE TRUST PROPERTY CA N BE DISPOSED OF AND ALIENATED AND IT CAN PURCHASE PROPERTY FOR PROPER FUNCTIONING OF THE TRUST, IF NEED SO ARISES. THE SAID CLAUSES DO NOT CONTRADICT IRREVOCABLE CLAUSE 15 OF ITA NO.202(ASR)/2014 9 THE TRUST DEED AT PAGE 38 OF THE PB. THEREFORE, THE LD. CIT IS NOT JUSTIFIED IN REJECTING THE APPLICATION FOR GRANT OF REGISTRAT ION ON THIS POINT. 6. AS REGARDS THE OBJECTION OF THE LD. CIT(A) WITH REGARD TO AGREEMENT OF RENT EXECUTED ON 23.11.2013 BETWEEN MRS. URVASHI AN AND AND VEERJI MATTOO, GENERAL SECRETARY OF THE TRUST, THE LD. CIT IS NOT JUSTIFIED IN CONCLUDING THAT ASSESSEES ACTIVITIES ARE NOT GENUI NE AND ARE NOT AS PER MAIN OBJECTS. IT WAS ARGUED BY THE LD. COUNSEL FOR THE A SSESSEE THAT THE SAID LAND- LADY IS NOT RELATED TO ANY OF THE TRUST MEMBERS AND THE PURPOSE IS TO PROVIDE EDUCATION TO THE STUDENTS WITHOUT CHARGING TUITION FEE AT A SPACE PROVIDED FREE OF RENT TO TEACH STUDENTS OF THE ASSESSEE-TRUS T. IN A WAY SHE PROVIDED THE EDUCATION FREE OF COST WHICH IS STRICTLY ACCORDING TO THE OBJECTS OF THE TRUST AND INTENT AND PURPOSE OF THE CHARITABLE ACTIVITY A ND THERE IS NO VIOLATION OF SECTION 2(15) OF THE ACT. THE LD. CIT(A) HAS MIS-CO NCEIVED SUCH CHARITABLE ACTIVITY AS NON-CHARITABLE ONE, INSPITE OF THE FACT THE BALANCE SHEET AND PROFIT & LOSS ACCOUNT FOR THE YEAR ENDING 31.3.2012 AND 3 1.3.2013 WERE ON RECORD AND NONE OF THE EXPENDITURE HAVE BEEN BROUGHT ON RE CORD AS OF NON- CHARITABLE PURPOSE. ACCORDINGLY, THE LD. COUNSEL FO R THE ASSESSEE PRAYED TO CANCEL THE ORDER OF THE LD. CIT AND DIRECT THE LD. CIT TO GRANT REGISTRATION, AS APPLIED. 7. THE LD. DR, ON THE OTHER HAND, RELIED UPON THE O RDER OF THE LD. CIT. ITA NO.202(ASR)/2014 10 8. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. AS REGARDS THE FIRST OBJECTION OF THE LD. CIT THAT AS PER TRUST DEED, THE TRUSTEES HAVE CONTRIBUTED RS.50,000/- TO FORM A CORPUS FUND AND SAID TRUSTEES HAVE AGREED TO ACT AS TRUSTEES AFTER CONTRIBUTING SUCH S UM AS CORPUS FUND. AT THE OUTSET, IN THE TRUSTEE DEED ITSELF SIGNED BY ALL TH E TRUSTEES, A SUM OF RS.50,000/- HAS BEEN CONTRIBUTED BY FOUR TRUSTEES A S CORPUS FUND, IS NOT UNDER DISPUTE BY THE LD. CIT. IT IS ALSO NOT IN DIS PUTE THAT THE ASSESSEE HAS SHOWN THE SAID SUM OF RS.50,000/- AS PART OF THE UN SECURED LOAN OF RS.2,17,000/- DURING THE YEAR ENDING 31.3.2012 & 31 .03.2013. BUT AT THE SAME, THE EXPLANATION WAS SUBMITTED THAT DUE TO CLE RICAL MISTAKE A SUM OF RS.50,000/- CONTRIBUTED AS CORPUS FUND HAS WRONGL Y BEEN CLUBBED WITH UNSECURED LOAN. THE NECESSARY CONFIRMATIONS IN THE FROM OF CERTIFICATE FROM ALL THE FOUR TRUSTEES HAVE BEEN PLACED ON RECORD BE FORE THE LD. CIT, AS MENTIONED HEREINABOVE, WHICH IS NOT DISPUTED BY TH E LD. CIT. IT IS A FACT THAT OUT OF THE FOUR TRUSTEES, THREE TRUSTEES HAVE CONTR IBUTED TOWARDS CORPUS FUND AS WELL AS UNSECURED LOANS. THIS FACT IS ALSO NOT D ISPUTED BY THE LD. CIT. IN FACT, THE LD. CIT AT PAGE 2 MENTIONS THAT THE SAID TRUSTEES HAVE CONTRIBUTED TOWARDS CORPUS FUND/UNSECURED LOAN. THEREFORE, WHEN THE TRUSTEES HAVE CONTRIBUTED TOWARDS CORPUS FUND, IS NOT UNDER DISPU TE, IT IS NOT FAIR AND NOT JUSTIFIED FOR THE LD. CIT TO CONCLUDE THAT THE TRUS TEES HAVE NOT CONTRIBUTED ITA NO.202(ASR)/2014 11 TOWARDS CORPUS FUND BUT TOWARDS UNSECURED LOAN ONLY AND THERE IS VIOLATION OF THE TRUST DEED. IN THE FACTS AND CIRCUMSTANCES, CLAUSE 2 OF THE TRUST DEED WHERE THE TRUST DEED ITSELF SHOWS CONTRIBUTION OF R S.50,000/- AS CORPUS FUND AND THE CERTIFICATE OF ALL THE FOUR TRUSTEES FOR CO NTRIBUTION TOWARDS CORPUS FUND AND FINDINGS OF THE LD. CIT AT PAGE 2 & 3 OF H IS ORDER THAT TRUSTEES HAVE CONTRIBUTED TOWARDS CORPUS FUND AS PER CLAUSE 2 OF THE TRUST DEED PLACED AT PB 39 AND THEREFORE, ON THIS ACCOUNT, THE LD. CIT I S NOT JUSTIFIED IN REFUSING GRANT OF REGISTRATION U/S 12AA OF THE ACT. 9. AS REGARDS THE IRREVOCABLE CLAUSE , REFERRED TO IN CLAUSE 3(XXI) WHERE THE ASSESSEE IS EMPOWERED IN TRUSTEE DEED (PB 25 TO 28) THAT IN CASE OF NEED AMENDMENT IN THE TRUST CAN BE INCORPORATED AND IN C LAUSE 3(XXII), THE ASSESSEE TRUST HAS RIGHT TO DEAL WITH THE PROPERTY OF THE TRUST AND IN CASE OF NEED THE TRUST PROPERTY CAN BE DISPOSED OF AND ALIE NATED AND THE TRUST CAN PURCHASE PROPERTY FOR PROPER FUNCTIONING OF THE TRU ST, IF NEED SO ARISES, DOES NOT PROVE IRREVOCABILITY OF THE TRUST AND DOE S NOT CONTRADICT CLAUSE 15, THE IRREVOCABLITY CLAUSE OF THE TRUST AT PB 38 AND THEREFORE, ON THIS ACCOUNT AS WELL THE LD. CIT(A) IS NOT JUSTIFIED IN CONCLUD ING AND REFUSING TO GRANT REGISTRATION U/S 12AA OF THE ACT. 10. AS REGARDS THE AGREEMENT OF RENT DEED EXECUTED BETWEEN MRS. URVASHI ANAND AND VEER JI MATTOO GENERAL SECRETARY OF THE TRUST, WHERE ITA NO.202(ASR)/2014 12 MRS. URVASHI ANAND HAS PROVIDED SPACE TO ACCOMMOD ATE TEACHING THE STUDENTS OF THE ASSESSEE TRUST RATHER PROVES A CHAR ITABLE ACT, WHICH DOES NOT CONTRAVENE ANY OF THE PROVISIONS OF SECTION 2(15) OF THE ACT AND ACCORDINGLY, THE LD. CIT IS NOT JUSTIFIED IN CONCLU DING AND REFUSING REGISTRATION U/S 12AA OF THE ACT. MOREOVER, AS PER BALANCE SHEET AND INCOME AND EXPENDITURE ACCOUNT AT PB 15 & 16 FOR TH E YEAR ENDING 31.3.2012 & 31.3.2013, NONE OF THE EXPENDITURE AND ACTIVITIES HAVE BEEN SHOWN TO BE OF NON-CHARITABLE PURPOSE BY THE LD. CI T. IT WAS STATED BY THE LD. COUNSEL FOR THE ASSESSEE THAT RECTIFICATION OF THE SAID AMOUNT HAS BEEN DONE IN THE BALANCE SHEET OF THE YEAR ENDING 31.3 .2014 AFTER THE ORDER OF THE LD. CIT PASSED ON 28.02.2014, THOUGH THE SAME IS NO T ON RECORD. IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT IS NOT J USTIFIED IN REFUSING TO GRANT REGISTRATION U/S 12AA OF THE ACT AND ACCORDIN GLY, WE CANCEL THE ORDER OF THE LD. CIT AND DIRECT THE LD. CIT TO GRANT REGI STRATION AS APPLIED IN FORM NO.10A DATED 21.05.2012. ACCORDINGLY, ALL THE GROUN DS OF THE ASSESSEE ARE ALLOWED. 11. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IN ITA NO.202(ASR)/2014 IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 26TH FEBRUARY, 2015. SD/- SD/- (A.D.JAIN) (B.P. JAIN) ITA NO.202(ASR)/2014 13 JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 26TH FEBRUARY, 2015 /SKR/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:M/S. KASHYAP CHARITABLE & EDUCATIONAL TRUST, NAGROTA, JAMMU. 2. THE CIT, JAMMU. 3. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER