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2009 (8) TMI 119

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..... . 5th Dec., 1974. It is an admitted position that in (so) granting the registration, it was noted that the Board is concerned with the prevention and control of pollution, and, therefore, could be said to be engaged in the advanced of an object of general public utility , and that having regard to the functions of the Board, as laid down in s. 17 of the Water (Prevention and Control of Pollution) Act, 1974, and the definition of charitable objects as it then stood in s. 2(15) of the IT Act, the objects of the Board were considered to be charitable in nature . 4. On 27th Oct., 2008, however, learned CIT served a notice on the assessee requiring him to show cause as to why, in view of the fact that the assessee was earning income from various kinds of fees and charges and in view of restricting the scope of an object of general public utility by amending s. 2(15), the registration granted to the assessee should not be withdrawn. It was pointed out that, with effect from the asst. yr. 2009-10 and by the virtue of amendment to s. 2(15) vide Finance Act, 2008, advancement of any object of general public utility cannot be treated as a charitable purpose if it involves the carrying out of .....

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..... r s. 12AA not be withdrawn even for years prior to the asst. yr. 2009-10. It was submitted by the assessee that the findings of the learned Chief CIT, while dealing with assessee s application for exemption under s. 10(23C)(iv), should not influence learned CIT s decision regarding registration under s. 12AA of the Act, as these are two independent provisions which should be considered on standalone basis. The assessee also made submissions on merits and submitted that the facts and circumstances of the case did not warrant or justify withdrawal of registration under s. 12AA, as the assessee was always engaged in, and continued to engage in, a charitable activity within meanings assigned to that expression under s. 2(15) of the Act. It was also pointed out the powers of withdrawing registration under s. 12AA(3) could only be exercised when it is found that the activities of the assessee are not genuine or when the same are not being carried out in accordance with the objects of the institution. It was assessee s case that the objects and activities of the assessee were examined at the point of time when the assessee was granted registration and since there was no change in the situ .....

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..... tration, it would imply that the registration once cancelled would be deemed to have never been given. (VI) In view of the above, it is held that that the H.P. Pollution Control Board is not carrying out the activities for which the registration under s. 12AA was granted and that the Board has been functioning only as a regulatory authority and its actual activities carried out are essentially in the nature of monitoring and supervision of pollution control mechanism installed in various industrial units and projects . The Board, therefore, cannot be said to be engaged in the pursuit of charitable purposes . Accordingly, registration granted under s. 12AA(3) is cancelled. (VII) Without prejudice to the above, the Board is actually carrying out activities in a commercial manner with a view to earn profits . By inspecting and monitoring the pollution control systems installed at various units and projects, and by giving proper guidance and directions for modification to such systems, the Board is actually rendering a service to the industrial units and helping them comply with the environmental norms necessary for running such units . The facts on record prove that that the activitie .....

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..... roceed, that regulatory functions are not activities for charitable purposes, for the elementary reason that the expression charitable purposes , under s. 2(15), includes any other objects of general public utility which, as we have noted above, is an expression of wide import. In the scheme of things which operate in the contemporary society, many of these regulatory functions are entrusted to the bodies independent of the Government and the object of the bodies so entrusted with the regulatory functions are, in our humble understanding, clearly pursuing objects of general public utility. We must emphasize once again that the connotations of charitable purposes , in view of specific provisions of the Act, are significantly wider than connotations of this expression in common parlance. 10. Viewed in this perspective, and bearing in mind the fact that assessee is admittedly engaged in the activities for the purposes of prevention, control or abatement of pollution , we are of the considered view that the objects of the assessee trust are of general public utility. We have already noted that the objections taken by the learned CIT that since assessee is performing regulatory function .....

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..... proviso to s. 2(15) does not come into play at all. Therefore, it is wholly immaterial as to whether or not the assessee was rendering a service to the trade commerce or business. Given the present legal position, and on the facts of the present case, even this objection taken by the learned CIT is wholly irrelevant. 13. It is also important to bear in mind that the insertion of proviso to s. 2(15) does not mean that in case an assessee is to receive any payment for anything done for trade, commerce or business, the assessee will be hit by the said proviso. It may be recalled that elaborating the scope of this amendment. CBDT, vide Circular No. 11, dt. 19th Dec., 2008 [(2009) 221 CTR (St) 1], has observed as follows: 3. The newly amended s. 2(15) will apply only to the entities whose purpose is advancement of any other object of general public utility i.e., the fourth limb of definition of charitable purpose contained in s. 2(15). Hence, such entities will not be eligible for exemption under s. 11 or under s. 10(23C) of the Act, if they carry on commercial activities. Whether such an entity is carrying on an activity in the nature of trade, commerce or business is a question of fac .....

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..... ness or commerce, or rendering of any service in relation thereto, the assessee cannot be said to be engaged in a charitable activity within meanings of s. 2(15) of the Act. As a corollary to this approach adopted by tax administration, in our considered view, it cannot be open to learned CIT to contend that where an object of general public utility is not merely a mask to hide true purpose or rendering of any service in relation thereto, and where such services are being rendered as purely incidental to or as subservient to the main objective of general public utility , the carrying on of bona fide activities in furtherance of such objectives of general public utility will also be hit by the proviso to s. 2(15). 15. As CBDT rightly puts it, sweeping generalizations are not possible and each case will have to decided on its facts . The question then arises whether on the present set of facts it can be said that the assessee was engaged in trade, commerce or business or in rendering of a service to trade, commerce or business. As far as assessee being engaged in trade, commerce or business is concerned, it is not even learned CITs case that running an organization, set up under the .....

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..... l Government, and its activities, under s. 17 of the Act. are as follows: (1) Subject to the provisions of this Act, the functions of a State Board shall be- (a) to plan a comprehensive programme for the prevention, control or abatement of pollution of streams and wells in the State and to secure the execution thereof; (b) to advise the State Government on any matter concerning the prevention, control or abatement of water pollution; (c) to collect and disseminate information relating to water pollution and the prevention, control or abatement thereof; (d) to encourage, conduct and participate in investigations and research relating to problems of water pollution and prevention, control or abatement of water pollution; (e) to collaborate with the Central Board in organising the training of persons engaged or to be engaged in programmes relating to prevention, control or abatement of water pollution and to organise mass education programmes relating thereto; (f) to inspect sewage or trade effluence, works and plants for the treatment of sewage and trade effluents and to review plans, specifications or other data relating to plants set up for the treatment of water, works for the pur .....

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..... ctions under this section efficiently, including the analysis of samples of water from any stream or well or of samples of any sewage or trade effluents. 17. On a perusal of these objectives, as sanctioned by the statue, it is obvious that the activities performed by the assessee trust are regulatory functions for the public good, and any collection for fees or charges, in the course of discharging these regulatory functions, cannot be viewed as a consideration of rendering these services of pollution control measures. We are unable to see any substance in learned CIT s stand that the income earned by assessee as licence fees, consent fees and testing charges are receipts in consideration of rendering the services to trade, commerce or business. What is termed as consent fees is in fact fees accompanying the application for obtaining consent (i.e., permission) of the assessee Board to set up a new unit. It cannot be anybody s case that the processing of applications by itself has a commercial motive, or that fees for processing of application is a fees collected for rendering of service of pollution control which is undisputed sole object of the assessee trust. Similarly, fees for .....

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..... accordance with the objects of the trust or the institution. There cannot be any other legally sustainable reasons for canceling or withdrawing the registration granted under s. 12AA. By no stretch of logic, the activities of the assessee can be said to be not genuine and the assessee is admittedly pursing the objects for which it was established. When the assessee is engaged in bona fide activities, within the framework of law, to pursue its objectives. it cannot be said that the activities of the assessee are not genuine. Learned CIT has also not brought on record any material to demonstrate activities of the assessee are not being carried out in accordance with the objects of the trust or the institution. Under these circumstances, the withdrawal of registration granted under s. 12AA cannot be sustained in law. Learned CIT has extensively referred to as to why the assessee is not eligible for exemption under s. 11 as the activities of the assessee cannot be said to be for charitable purposes defined under s. 2(15), but then this aspect of the matter is relevant for the assessment proceedings and not in the context of exercise of CIT s powers under s. 12AA(3). The impugned order .....

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