By TIOL News Service

ERNAKULAM, MAR 03, 2014: THE issues before the Bench are - Whether when the assessee-trust that runs a school for children of non-residents, excludes poor children from its ambit, can still claim to be charitable; Whether there is any live link between the nomenclature of the body and its main activities and Whethe the Revenue is right in making inquiries before rejecting the application filed under Sec 12A. And the answers go against the assessee.

Facts of the case

The assessee is a registered Trust under the name and style "Dawn Educational and Charitable Trust". It operates a school named 'Dawn International School'. An application was filed seeking registration u/s 12A so as to get income tax exemption on the ground that they were imparting education and therefore it was a trust meant for charitable purpose. Revenue made an enquiry to satisfy itself whether the activity done was factually in the direction of object of the trust. The CIT, who had the authority to grant registration u/s 12AA, was of the opinion the assessee intended to run a posh international school in the name of charitable activity, therefore, assessee was not entitled for such registration. Reasons for rejection of application were, though the trust says main object of it being to run educational institutions and establish institutions of training and rehabilitation for mentally retarded persons, physically handicapped persons etc., enquiries revealed that activity of the trust was only to bring under its ambit the already existing Dawn International School run by the Managing Trustee. Commencement of the school was in 2006 and the trust was formed in 2007. The school was run in a building where air conditioned class rooms with breakfast and lunch were provided. The school was maintained and meant for benefit of children of non-resident Indians. Fee structure indicated collection of huge amount. Clause 6 of the trust deed further indicated that the trust was at liberty having absolute discretion to accept contributions as donation and contributors had no right or control over the management or in the administration of the trust. All these facts borne on record revealed during the enquiry persuaded the Commissioner to reject the application. This was confirmed by the Appellate Tribunal endorsing the views of the Commissioner.

On appeal, the HC held that,

++ the counsel arguing for the appellant contends, charitable trust does not mean, it imparts education only to the poor. Even if poor children are excluded, it could still be charitable as long as running an educational institution. He tries to convince the Bench with his stand placing reliance on the decision reported in Nedumchalil C.Trust v. Municipal Commissioner (1991 (2) KLT 180). The question that arose was whether the fact of special wards for patients who pay full price are run or that salary is paid inclusive of the expenditure for the trustees will not change the nature of the trust, i.e., charity and charitable purpose. In that context, referring to Section 101(1)(d) of the Municipalities Act, 1961 (Kerala) with reference to general meaning of charitable purpose Judge of HC opined what amounts to charity so far as Municipalities Act;

++ we are not concerned with similar situation and further said judgment can only have a persuasive value and not binding on the Division Bench. We have to consider the controversy before us with reference to Income Tax Act how an application for registration u/s 12A has to be considered. It is well settled that even if nomenclature of the trust may indicate it is meant for charitable purpose, but if activities reveal otherwise, that should weigh with the authorities who grant registration. Similarly, while considering claim of exemption, authorities under the Act would look into the actual activity of the institution, especially main activity of the institution. In the absence of facts indicating that the activities carried on attracts definition of charitable purpose, one cannot find fault with rejection of registration. When the school is running on commercial lines under the clad of charitable purpose, the parties were justified making enquiries and rejecting the application. We find no good ground to interfere with the order of the Appellate Tribunal. Accordingly, the appeal is dismissed.

(See 2014-TIOL-260-HC-KERALA-IT)