TMI Blog2016 (8) TMI 808X X X X Extracts X X X X X X X X Extracts X X X X ..... s order dated 29.9.2015. 2 The grounds raised read as follows: i) The order of the CIT(E) is against the facts and circumstances of the assessee s case and hence opposed to the provisions of the I T Act. ii) The CIT(E) ought to have considered the fact that a charitable or religious institution need not be a trust/society in all cases. iii) The CIT(E) has erred in stating that the assessee did not file the document evidencing creation of the trust. The assessee had filed certified copy of the decree of Bishop by which the institution came into existence. The assessee was seeking registration not as a trust, but only as a religious institution. iv) Any other grounds that may be adduced at the time of hearing. 3 The brief facts of the case are as follows: The assessee is a Roman Catholic Parish, coming under the Diocese of Tellicherry. The assessee had filed an application on 31.3.2015 requesting for registration u/s 12A of the Income Tax Act in the prescribed form No.10A as a Religious Institution. The CIT(E) rejected the assessee s application stating that since the applicant has not produced original/copy of the instrument in support of creatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to accept a certified copy in lieu or the original; b) Where the trust or institution has been in existence during any year or years, prior to the financial year in which the application for registration is made, two copies of the accounts of the trust or institution relating to such prior year or years (not being more than three years immediately preceding the year in which the said application is made) for which such accounts have been made up.) 7. A plain reading of Rule 17A make it clear that a religious or charitable organization can be an institution other than a trust . The usage of the words charitable or religious trust or institution in the first and second limb of the rule 17A connotes that; where the Trust is created or institution is established, under an instrument, the instrument in original together with a copy thereof, has to be filed along with the prescribed form no.10A for registration. However, the second limb of Rule 17A provides that where the Trust is created or the institution is established, otherwise than by an instrument, the document evidencing the creation of the trust or the establishment of the institution, together with one copy of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reation of the Trust or the establishment of the Institution, has to be filed, meaning thereby that the document evidencing the creation of Trust or the establishment of Institution could be of any type. As per the provisions of the Indian Trust Act, the Trust can be created even orally and if the assessee is able to give some evidence of creation of such Trust by a word of mouth, the same shall be eligible for registration u/s 12AA/12A of the Act, provided such evidence is filed and the other conditions under the statute are satisfied. 14. We find that the argument of the learned CIT-DR, that procedurally in order to have a valid trust under Indian Trust Act, 1882 an instrument declaring trust should be made on non-judicial stamp paper with prescribed fee signed by the settlers and all the trustees and should be registered with the Registrar of Properties etc., is devoid of any merit as Rule 17A of the Income-tax Rules, 1962 itself provides that where the institution or the trust is established otherwise than under an instrument, the document evidencing the creation of the trust or the establishment of the institution, together with one copy thereof can be filed along with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xistence of trust but did not evidence the creation of the trust. Hon ble Madhya Pradesh High Court held that the document accorded a logical basis for inferring creation of the trust and matter was remanded back to the Commissioner to reconsider the application of the trust in the light of the observations made by the Hon ble High Court. The Hon ble High Court held :- When the trust is a trust created under an instrument, rule 17 requires filing of 'the instrument in original' and when the trust is created otherwise than under an instrument 'the document evidencing the creation of the trust has to be filed. An analysis of section 12A(a) and rule 17A(a) will show that the fact to be established is the creation of trust and this fact is required to be established by producing constitutive and evidential documents. When the trust is created under an instrument, the rule requires the production of the constitutive document itself, i.e., the instrument which creates the trust. When the trust is not created under an instrument, it is impossible to produce any constitutive document and, hence, the rule requires production of evidential documents, i.e., the documents ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17th Karmapa, who is the supreme spiritual Head of Karma Kagyu lineage, has made a declaration of Trust on stamp paper on 29th day of March, 2011 at Delhi, wherein the entire history of the Trust along with their aims, objects and purposes of the Trust, various provisions with regard to the management of the Trust and its properties and maintenance of accounts etc. have been detailed on solemn affirmation. It has been declared on oath by the present spiritual head of assessee trust that His Holiness the 1st Karmapa, as Head of the Karma Kagyu lineage, has founded and established the Tsurphu Monastery in Tolung Valley in Central Tibet in 1159 AD to be the main seat of the Karma Kagyu lineage, a sect of Buddhism practiced all over the world. It declared that the present 17th Karmapa is the supreme spiritual Head of Karma Kagyu lineage and that he is recognized all over world and the voluntarily customary offerings from devotees all over the world remain untouched by Karmapas, as they do not accept or own any kind of properties personally by continuing tradition of diverting all these offerings at source to charitable purposes of general public utility and for preservation and propag ..... X X X X Extracts X X X X X X X X Extracts X X X X
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