TMI Blog2015 (9) TMI 440X X X X Extracts X X X X X X X X Extracts X X X X ..... condition is concerned, there cannot be any doubt that aims and objects of assessee society are of charitable nature. The only other condition which is required to be satisfied is genuineness of its activities. On perusal of income and expenditure statement of assessee as well as other materials, it is not visible how assessee has created awareness amongst general public whether by holding seminars, workshops etc. or through any other mode, for collecting sperm/egg from donors. Assessee has also to explain how it maintains the sperm/egg bank, since, according to its own admission it does not have infrastructure facility for storage gametes. That being the case, assessee has to bring on record the terms and conditions on which it has utilized the facilities of a third party and the consideration paid for such utilization. Similarly, though, ld. AR submitted before us, the amount collected from childless couples, who undergo treatment for infertility are only voluntary contribution but he has not furnished details as to how many patients have received sperm/egg and what is the contribution made by each patient. This is very much essential to prove the fact that assessee is not und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... offspring. Explaining the details of maintaining a egg and sperm bank by collecting from donors, it was submitted that Indian Council of Medical Research (ICMR) has evolved and framed certain guidelines regulating the procedure of egg and sperm donation towards treatment of infertility of childless couples. It was submitted, though, parliament has not enacted any law in this regard, but, the guidelines provided by ICMR regulates the procedure. It was submitted, to spread awareness amongst prospective donors and public at large so that they will come forward and donate sperm and eggs for utilizing in treatment of infertility of childless couples, assessee is providing yeomen services to the society. It was submitted that assessee in connection with its activities works in close association with Dr. Rama's Institute for fertility for the purpose of utilizing medical infrastructure available there for testing and storing spermatozoa and oocytes. It was submitted, for this purpose assessee also compensate the said institute. It was submitted that sperm and egg stored in the bank by assessee are ultimately used by M/s Diana Medical Services Pvt. Ltd. in the treatment of childless co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m/egg bank belongs to hospital, existence of assessee society is totally irrelevant, therefore, assessee society cannot be granted registration u/s 12AA of the Act. Being aggrieved of the aforesaid order, assessee is before us. 4. Ld. AR inviting our attention to the aims and objects of the society as mentioned in MoA submitted, the objects of the society would clearly show that they are in the nature of medical services, hence, comes within the definition of charitable purpose as per section 2(15) of the Act. It was submitted, considering the sensitive nature of subject, unless an awareness is crated amongst general public, no one will come up voluntarily for donating sperm/egg, which is essential requirement for maintaining a sperm/egg bank. He submitted, considering the infertility problem amongst couples in the present age, maintenance of a sperm/egg bank is very much essential to treat infertility. Thus, it was submitted, unless, the donors are persuaded by making them aware of the noble nature of the activity, nobody will voluntarily come forward for donation of sperm/egg. Thus, the activity undertaken by assessee for maintaining sperm/egg bank for facilitating treatment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion may be issued to ld. DIT(E). 5. Ld. DR, on the other hand, submitted before us, artificial reproduction technology has become a very thriving and lucrative business in the modern age. He submitted, childless couples are spending a fortune for undertaking treatment for removing infertility. It was submitted, assessee is nothing but a name lender for the hospital M/s Diana Medical Services Pvt. Ltd., which is maintaining all facilities/infrastructure including the sperm/egg bank by collecting, testing, and storing of sperm/egg from donors. It utilizes the same in the infertility treatment undertaken in the hospital on childless couples. Thus, it was submitted, though, the entire activity is being carried on by hospital a part of income has been diverted by creating assessee society. Ld. DR submitted, this is only a colorable device adopted by hospital to claim exemption at the hands of society. In this context, he referred to the decision of Hon'ble Supreme Court in case of Mcdowell and Co. Ltd., [1985] 154 ITR 148. Ld. DR submitted, even otherwise also, activities of assessee being of purely commercial nature, cannot be considered to be a charitable activity. In this con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allegation of ld. DIT(E) that entire activity of collection of sperm/egg and storage of the same as well as utilization in infertility treatment is solely undertaken by M/s Diana Medical Services Pvt. Ltd. and assessee is only a name lender, we have to observe that ld. DIT(E)'s conclusion appears to be more on presumption and surmises rather than on evidences brought on record. Only because, the President of the society is related to the managing director of the hospital or some facilities of hospital were used by society for storage and testing of gamete it cannot be said that assessee is a mere name lender or has been created in paper only. Unless corroborative evidences are brought on record to establish that the entire activity of bringing donors, collecting sperm/egg, storage etc., has been solely undertaken by hospital, assessee's role cannot be ignored. Therefore, without making any enquiry to find out the exact nature of activity of assessee and the hospital, it cannot be presumed that the entire activity of collection of sperm/egg and utilization in treatment of infertile couples is the activity of hospital. For the aforesaid reasons, we are unable to approve the d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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