## **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT:**
**THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE**
**FRIDAY, THE 7TH DAY OF FEBRUARY 2014/18TH MAGHA, 1935**
## **ITA.No. 115 of 2011**
**-------------------------[AGAINST THE ORDER OF THE INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH, DATED 29/04/2011 IN I.T.A. NO.137/COCH/2009]**
**..........**
## **APPELLANT:**
**-------------------**
**TELLICHERRY MINORITY WELFARE TRUST, 19/600, MARIYAMMA ROAD, PILAKOOL, THALASSERY, REPRESENTED BY ITS CHAIRMAN, K.C.SALEEM.**
**BY ADVS.SRI.K.I.MAYANKUTTY MATHER, SMT.RUKHIYABI MOHD. KUNHI.**
**RESPONDENT:**
**---------------------**
**THE COMMISSIONER OF INCOME TAX, SAHANA BUILDING, MELE CHOVVA, KANNUR.**
**BY SRI.P.K.R.MENON, SR.COUNSEL, G.O.I.(TAXES), SRI.JOSE JOSEPH, S.C.**
**THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON 07-02-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:**
**Prv.**
## **I.T.A. NO.115/2011:**
## **APPENDIX**
## **PETITIONER'S ANNEXURES:**
- **ANNEXURE. A: TRUE COPY OF THE TRUST DEED DTD. 30/05/2003.**
- **ANNEXURE. B: TRUE COPY OF THE APPLICATION FOR REGISTRATION FILED BY THE APPELLANT DTD. 21/07/2008.**
- **ANNEXURE. C: TRUE COPY OF THE ORDER OF THE COMMISSIONER OF INCOME TAX, KANNUR DTD. 15/01/2009.**
- **ANNEXURE. D: TRUE COPY OF THE APPEAL MEMORANDUM FILED BEFORE THE INCOME TAX APPELLATE TRIBUNAL DTD. 02/03/2009.**
- **ANNEXURE. E: TRUE COPY OF BALANCE SHEET FOR THE YEAR ENDING WITH 31/03/2004 DTD. NIL.**
- **ANNEXURE E.1: TRUE COPY OF BALANCE SHEET FOR THE YEAR ENDING WITH 31/03/2005 DTD. NIL.**
- **ANNEXURE E.2: TRUE COPY OF BALANCE SHEET FOR THE YEAR ENDING WITH 31/03/2006 DTD. NIL.**
- **ANNEXURE E.3: TRUE COPY OF BALANCE SHEET FOR THE YEAR ENDING WITH 31/03/2007 DTD. NIL.**
- **ANNEXURE E.4: TRUE COPY OF BALANCE SHEET FOR THE YEAR ENDING WITH 31/03/2008 DTD. NIL.**
- **ANNEXURE E.5: TRUE COPY OF BALANCE SHEET FOR THE YEAR ENDING WITH 31/03/2009 DTD. NIL.**
- **ANNEXURE E.6: TRUE COPY OF BALANCE SHEET FOR THE YEAR ENDING WITH 31/03/2010 DTD. NIL.**
- **ANNEXURE E.7: TRUE COPY OF BALANCE SHEET FOR THE YEAR ENDING WITH 31/03/2011 DTD. NIL.**
- **ANNEXURE F: TRUE COPY OF THE EXTRACT OF THE BALANCE SHEET SUMMARY DTD. NIL.**
- **ANNEXURE G: TRUE COPY OF THE ORDER OF THE INCOME TAX APPELLATE TRIBUNAL DTD. 29/04/2011.**
## **RESPONDENT'S ANNEXURES: NIL.**
## **//TRUE COPY//**
**P.A. TO JUDGE.**
**Prv.**
## **MANJULA CHELLUR,C.J. & A.M.SHAFFIQUE, J.**
**= = = = = = = = = = = = = = = = I.T.A. No.115 of 2011 = = = = = = = = = = = = = = = = = = = = = Dated this the 7th day of February, 2014**
## **JUDGMENT**
## **Manjula Chellur,CJ**
Appellant was the unsuccessful trust who failed in getting registration certificate under Section 12A of the Income Tax Act (hereinafter referred to as the Act). An application came to be filed on 21.07.2008 for registration under Section 12A of the Income Tax Act which came to be rejected on 15.01.2009. According to the appellant, the said order was unsustainable; therefore, he preferred an appeal before the Appellate Tribunal. Aggrieved by the order of Tribunal, the appellant is before us.
2. The main contention of the appellant is, the authorities while considering or processing the application for registration under Section 12A of the Act are not entitled to examine the said application with reference to Section 13(1)(b) of the Income Tax Act. Therefore, the reasoning for the orders of Commissioner as
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well as Tribunal is unsustainable. He also relies upon the following three decisions of various High Courts to substantiate his arguments. **Fifth Generation Education Society v. Commissioner of Income-tax** (1990)185 ITR 634 (All); **Commissioner of Income Tax v. Jodhpur Chartered Accountants Society** (2002)258 ITR 548(Raj) and un reported judgment of High Court of Punjab and Haryana at Chandigarh dated 5.10.2011 in ITA Nos.701 of 2010 and 189 of 2011. Placing reliance on these decisions, appellant/assessee contends, Commissioner was not required to examine the application of income while processing the application for registration under Section 12A of the Act. Therefore, the order of Commissioner as well as Tribunal clearly indicates how they analysed the application of assessee for registration under Section 12A which has led to the present erroneous order under challenge.
3. According to them, anticipating expenditure with reference to a particular minority community, by referring to certain clauses in the trust, there was no justification to prejudge the issue. Even before computation of tax was undertaken by the authorities, the intention of the trust in question cannot be
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anticipated. It cannot be held that the intention is to help only one religious minority, therefore, hit under Section 13(1)(b) of the Income-Tax Act.
4. As against this, learned Standing Counsel submitting arguments for the Department contends that the clauses and the words used in the entire document of trust, especially, the name of the trust, restriction of beneficiaries at clause 9 of the trust deed clearly indicates that the intention of the trust is only to extend benefits to a particular religious minority, therefore, there was justification in rejecting the application of the assessee.
5. He further contends, issuance of registration under Section 12A is mandatory, if anyone intends to seek exemption under Section 11 of the Act. Then Section 13 refers to conditions which have to be looked into while granting exemption of tax under Section 11 of the Act. Therefore, unless the activities undertaken by applicant indicate that the activities are meant for general public without reference to any particular religious group, no registration certificate could be issued. As the very rejection of application is with reference to Clauses in
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the document, appeal deserves to be dismissed.
6. We have gone through the order of Tribunal in detail. While referring to application of Section 11 of the Act under what circumstances it extends to, they did refer to Section 13(1) (b) in order to appreciate the justification of the applicant seeking registration under Section 12A. This is only with reference to whom the benefit was proposed to be extended. This is not with reference to computation of tax payable giving such exemption while computing the income. Therefore, there was no examination of income being undertaken by the authorities while analyzing the facts. Therefore, the argument of the learned counsel for the appellant that except considering the application under Section 12A registration, the authorities were not required to examine the income never occurred in the present case, therefore, the said argument falls to ground.
7. Then coming to the next argument, whether there is any indication that the benefits arising out of charitable service rendered by the trust in question were intended only to a particular religious minority, both the authorities have gone through the clauses of trust in detail.
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8. We have also gone through different clauses of trust and also nomenclature. In unmistakable words the heading of the document of the trust says 'Tellicherry Minority Welfare Trust'. Though it is declared as a public charitable and minorities trust, clause 9 indicates, the beneficiaries are financially poor minorities and other backward classes in Tellicherry Municipality and its suburbs.
9. If the object of the trust was to help all backward classes as contended by appellant, we fail to understand why financially poor minority were included. If their intention were to extend the benefit to all poor minorities as indicated in the orders of the Tribunal, the minorities have to be with reference to minorities as declared by the Central Government. Though it refers to minorities, the trust does not further clarify whether it is religious minority, linguistic minority or cultural minority.
10. We are unable to understand what exactly is the object and aim of the trust in mentioning minorities and backward classes of Tellicherry Municipality and its suburbs. In order to understand what exactly is the intention, the entire document on perusal does not indicate that it is with reference to any
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particular minority of religion, language or culture. Even now no material is brought on record which minority groups in Tellicherry Municipality represent religion, language or culture. In the absence of such details by referring to minorities living in Tellicherry Municipality and its suburbs, the real intention of using the word 'minorities' in the trust deed, according to the authorities, with reference to a particular religious minority seems to be justified.
11. If the intention were to be otherwise, at least some of the clauses of the trust had to refer to such details. If it is a charitable and religious trust, especially in the case of charity, having regard to several restrictions under Section 13 (1) of the Act (especially 13(1)(b)) if benefit is restricted to a particular religion or class, exemption benefit will not be attracted. No doubt, once registration under Section 12A is secured, there is no automatic exemption of income and such exemption will be extended only with reference to factual situation. In order to get exemption, they must comply with the conditions enumerated and the authorities must also verify whether the activities undertaken by the applicant is really meant for public at large or
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they are restricted to a particular group with reference to religion or caste. Unless this exercise is done, it would not be proper for the authorities to blindly grant registration under Section 12A to every other applicant. As long as 12A registration is in existence, the assessee can claim the benefit. Without 12A registration, even if the assesee were to spend money on charitable activities, they are not entitled for the benefit. Therefore, registration under Section 12A is like an entry document to secure exemption. Hence, registration is a relevant process which has to be carefully exercised by the authority concerned. It is always Commissioner who process the applications for registration under Section 12A and it is not entrusted to any other officer below the rank of a Commissioner of Income Tax.
12. The observation of the authorities below with reference to the contents of the trust deed in question persuaded them to opine that the meaning and import of the word ‘apply’, having regard to the denominational character of the trust on the holistic approach to conclude that the intention was not to extend the benefit to all minorities, but to a particular religious
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minority.
13. It is always open to the applicant/assessee to approach the authorities concerned after modifying the clauses in the trust clearly indicating that the charitable benefits are meant for all sections across the society and not a particular group. With these observations the appeal is disposed of.
**MANJULA CHELLUR, CHIEF JUSTICE**
## **A.M.SHAFFIQUE, JUDGE.**
sj 10/02
