- What is section 12-A of Income Tax Act??
Ans. -Income of an organization is exempted if NGO has 12-A registration. All income shall not be taxable after 12-A registration. This is one time registration.
- What Is section 80-G of Income Tax Act. ?
Ans. -If an organization has obtained certification under section 80-G of Income Tax Act then donors of that NGO can claim exemption from Income Tax. This is not one time registration. This needs to get renewed after validity period.
- When an organization can apply for registration under section 12A and BUG of Income Tax Act?
Ans. – Application for registration under section 12A and 80G can be applied just after registration of the NGO.
- Where to apply for registration under section 12A and 80G of Income Tax Act?
Ans. -Application for registration under section 12A and 8OG can be applied to the Commissioner of Income-tax (Exemption) having jurisdiction over the institution.
- Can both the applications under section 12A and 80G of Income Tax Act be applied together?
Ans. -Yes! Both applications can be applied together or it can also be applied separately also. If some organization is willing to apply both applications separately, then application for registration u/s 12A will be applied first. Getting 12A registration is must for applying application for registration u/s 80G of Income Tax Act.
- Generally what is the timeline for getting registration under section 12A and 80G of Income Tax Act?
Ans. -Process for registration under section 12A and 80G will be approximately 3 to 4 months.
- What is the procedure for getting registration under section 12A and 80G of Income Tax Act?
Ans. -Step-1: Dully filled-in application will be submitted to the exemption section of the lncome Tax Department.
Step-2: NGO will receive notice for clarifications from Income Tax Department in 2-3 months after applying.
Step-3: Reply of notice will be submitted by the consultant along with all relevant desired documents to the Income Tax Departments.
Step-4: Consultant will personally visit the Income Tax Departments to follow-up the case on behalf of the applicant organization.
Step-5: Exemption Certificates will be issued.
- What is the validity period of the registration under section 12A and 80G of Income Tax Act?
Ans. -12A registration: Lifetime validity
80G registration: 1 to 3 years validity
- What application forms are being used for applying for registration under section 12A and 80G of Income Tax Act?
Ans. -12A registration: Form 10A
80G registration: Form 10G (For New Application and Renewal both)
- What are the conditions on Section 80G?
Ans. -There are few conditions to be fulfilled under the section 80G:
The NGO should not have any incomes which are not exempted, such as business income. If, the NGO has business income then it should maintain separate books of accounts and should not divert donations received for the purpose of such business.
The bylaws or objectives of the NGOs should not contain any provision for spending the income or assets of the NGO for purpose other than charitable.
The NGO is not working for the benefit of particular religious community or caste.
The NGO maintains regular accounts of its receipts & expenditures.
The NGO is properly registered under the Societies Registration Act 1860 or under any law
Corresponding to that act or is registered under section 25 of the Companies Act 1956.
- What is Tax Exemption limit on donations?
Ans. -There is a limit on how much money can be exempted from the Income Tax.
If the amount of deduction to a charitable organisation or trust is more than 10% of the Gross Total Income computed under the Act (as reduced by income on which income-tax is not payable under any provision of this Act and by any amount in respect of which the assessee is entitled to a deduction under any other provision of this Chapter), then the amount in excess of 10% of Gross Total Income shall not qualify for deduction under section 80G.
The persons or organization who donates under section 80G gets a deduction of 50% from their taxable income. Here at times a confusion creeps in, that the tax advantage under section 80G is 50%, but actually it is not so. 50% of the donation made is allowed to be deducted from the taxable income and consequently tax is calculated.
Documents required for registration u/s 12A AND 80G:
- Dully filled in Form – 10A for registration u/s 12A registration;
- Dully filled in Form – 10G for registration u/s 80G registration;
- Registration Certificate and MOA /Trust Deed (two copies – self attested by NGO head);
- NOC from Landlord (where registered office is situated);
- Copy of PAN card of NGO;
- Electricity Bill / House tax Receipt /Water Bill (photocopy);
- Evidence of welfare activities carried out & Progress Report since inception or last 3 years;
- Books of Accounts, Balance Sheet & ITR (if any), since inception or last 3years;
- List of donors along with their address and PAN;
- List of governing body I board of trustee’s members with their contact details;
- Original RC and MOA /Trust Deed for verification;
- Authority letter in favor of NGO Factory;
- Any other document I affidavit / undertaking I information asked by the Income Tax department.
Q1: Whether the Income-tax Act, 1961 is applicable to all the Voluntary Organizations who are engaged in socio-economic development programmes in India? Please clarify.
Ans: The Income Tax Act, 1961, is applicable to Voluntary Organizations which are engaged in public charitable or religious activity. Hence, Voluntary Organizations which carry out socio-development programmes in India of a charitable nature for the benefit of the public shall get the benefit of the Act and the exemptions available therein.
Q2: Whether the Income Tax Act, 1961 is applicable to NGO’s located in North East India or in District of Laddakh? Please clarify.
Q3: Whether it is necessary for an NGO to file a Return of Income with the Income tax Department? If so, under what circumstances are the NGOs totally exempt from filing the Return of Income with the tax authorities?
Ans : A Non-Government Organisation which is registered with the Income Tax Department under Section 12A of the Act is required to file a return of Income, if its total income, without claiming any deductions there from exceeds the maximum amount which is not chargeable to income tax (for assessment year 2003-04 the said amount is Rs. 50,000).
Q4: What is the procedure for registration of an NGO with the Income Tax Department?
Ans: The procedure for registering a Non-Government Organisation, which is a public charitable trust, is to file an application in Form 10A (As per Annexure 27) in duplicate. This application should be sent to the Commissioner having jurisdiction in the area where the trust is situated, and should be filed before the expiry of one year from the date of creation of the trust or the establishment of the institution. The enclosures referred to in the said form should also be attached to the application.
Q5: Whether it is necessary for an NGO to be registered as a Charitable Society or a Public Trust for seeking registration under Section 12A of the Income tax Act, 1961?
Ans : An analysis of Section 12(a) and Rule shows that the fact to be established is the creation of the Trust and this fact is required to be established by producing constitution and evidential documents. Where the trust is not created under the instrument, the rule requires the production of evidential documents i.e. the instrument which has created the trust. The evidential document could not be limited to the document which directly proves the creation of the trust, they will include all documents which afford a logical basis of inferring creation of the trust and all such documents can be described to be “documents evidencing the creation of the trust” within rule 17A(a). Therefore, in Laxmi Narayan Maharaj vs. CIT (1984) 150 ITR 465 (MP) it was held that all the documents, though not directly showing the creation of the trust, [for example: (a) revenue records relating to lands held by the trust; (b) orders relating to assessment of property tax] afforded a logical basis for inferring the creation of the trust and therefore, could be described as documents showing creation of the trust for the purpose of Rule 17A.
Therefore, it is not necessary for an NGO to be either a society registered under the Societies Registration Act or a Public Charitable Trust for seeking registration under Section 12A(a) of the Income Tax Act, 1961.
Q6: Whether a donor can make a contribution to the Corpus Fund with certain conditions and/or qualification to be fulfilled by the recipient? If so whether same will be treated as donation to Corpus Fund or not?
Ans : Donors may make a contribution to Corpus Fund with certain stipulations and conditions, such as the purpose of the fund and its utilization, and such conditions and stipulations will not in any way change the nature of the Corpus Fund i.e. it will still be exempt from income-tax.
Q7: Whether a donor who has made a contribution to the Corpus Fund has a right to call-back the amount of contribution to the Corpus Fund made by him? If so what would be the treatment in the year of refund?
Ans: A donation is by its very nature a completed gift and once the donation has been accepted by the donee, the donor has no right to ask for the amount to be refunded. Donations to Corpus will also be similarly treated.
Q8: Whether 100% of the income (receipts) during a particular year is to be utilized in that same year or whether it can be accumulated? If so under what circumstances and to what extent?
Ans: Section 11 of the Act requires a trust to utilize at least 85% of its income for charitable or religious purposes, and the remaining balance is permitted to be accumulated. Also, if a situation arises where it is not possible to spend 85% of the income in the same year, then a trust or institution may make an application to the Assessing Officer in Form 10 (As per Annexure 26) for accumulating its income for future application to charitable or religious purposes. This application should be made on or before the last date for the filing of the return of income which is the 31st October, of the relevant year, for Institutions having the income over Rs. 50,000. In other cases, Form 10 should be filed by the 30th day of June in the relevant assessment year.
Q9: If the income cannot be utilized during a particular year, up to how many years can it are accumulated? Furthermore, if the income cannot be applied subsequently what will be its treatment for income-tax purposes?
Ans: After complying with formalities discussed above, the income may be utilized in the next 5 year for the purposes mentioned in Form 10. However, if the income is not so utilized in this period, then it will be treated as income in the eleventh year.
Q10: If an organization has surplus funds, how should they be invested so that it may continue to have registration under the Income-tax Act, 1961? What are the consequences of non-compliance? Whether a NGO can make investments in shares and debentures of a Government Company, Public Sector Undertaking, Public Limited or a Private Limited Company or not ?
Ans: The types of investments and deposits permissible to the charitable trusts or institutions are given in Section 11(5) of the Income Tax Act, 1961. No other types of investments or deposits are permitted.
Q11: What is the time limit within which the income-tax has to be filed with the Income tax Department? What is the Income-tax Return number to be filed and what documents are to be attached along with it? Whether the audit of the accounts of NGO organizations is compulsory required under the Income-Tax Act, 1961? If so the limits and conditions in this regard.
Ans : In the case of a public trust or institution whose gross Income exceeds Rs. 50,000 in any financial year, it will be necessary for the public trust to get its accounts audited by a chartered accountant, and consequently the last date for filing its return of income shall be 31st October, of the relevant assessment year. In all other cases, i.e. where the gross income is Rs. 50,000 or less, the last date for filing the return of income shall be 30th June of the relevant assessment year. The return shall be filed in Form 3A.
The PAN and/or GIR No. of the trust or institution shall be stated on page 1 of the return of income and also on the acknowledgement form (in duplicate). Please attach the following to the return of income. (i) Audited statement of accounts, (ii) Audit report in form 10B(As per annexure 28), wherever applicable, (iii) Income-tax Deduction certificates, if any, for obtaining a refund of Income-tax, (iv) Statement showing computation of income (v) List of Trustees.
Q12: Whether an NGO can carry on business with or without profit? What are the consequences as per Income-tax Act, 1961?
Ans: A charitable trust or institution can carry over a business which is incidental to the attainment of the objects of the trust or institution, and provided that separate books of account are maintained for such business transactions. For e.g. a charitable trust or institution which has the object of training widows and destitute women in tailoring or handicraft may sell their output, if any, surplus profit arising there from will not be taxable since the objects of the trust is to assist destitute and under privileged women to become useful members of the Society, and since it is not a part of the objects of the trust to generate profits, as such. Separate books of accounts of such activities should be maintained in order to claim income tax exemption available to it under Section 11(4A) of the Act.
Q13: Whether an NGO can give loans to another NGO under the provisions of the Income-tax Act, 1961?
Ans: It is possible for a charitable trust or institution to advance monies to any other public trust or institution having similar objects, for the purpose of furthering those objects.
Change of Society name and Trust Deed
Where a society that has been incorporated as a board wishes to alter its rules, this can only occur if the alterations will not affect the trust. The board must register a copy of the relevant document showing the change if any variation is made in the trusts or additional property becomes vested in the board.
Variation of trusts
The board must file a certified copy of the variation within one month if:
a variation is made to the trusts on which any board holds property or
additional property becomes vested in a board on terms that are not fully shown in the registered trust documents.
When filing such a variation, the document must be certified to be a true copy by:
one of the trustees or a member of the committee or governing body of the society.
If additional property is relevant, a statutory declaration is also required.
Alteration of rules
Where a society has been incorporated as a board and wishes to alter its rules, the board must notify the Registrar of the alteration within one month of the resolution.
Although there is no prescribed form for notifying the Registrar of a change of rules, the Registrar has developed a cover sheet to help ensure the rule change is able to be registered.
1) What is NGO?
Ans. -NGO is a Non Government Organization.
2) Which documents are required for NGO Registration?
Ans. – NGO name, Ngo address, minimum 7 body members (name, address, age, qualification, occupation)
3) Where we have to submit the documents for NGO Registration?
Ans. – You have to submit all the documents in Charity Commission Office.
4) Is there any address proof required for NGO Registration?
Ans. – No. Only basic details are required. NGO name, Ngo address, minimum 7 body members (name, address, age, qualification, occupation)
5) Which one is good to Registered Society or Trust?
Ans. – Society.
6) Is this right we required only 2 body members for Trust Registration?
Ans. – Yes.
7) Any Extra charges we have to pay at the time of submission of Documents at Charity Commission Office?
Ans. – yes, you have to pay only Rs 120/-.
8) Where is the Charity Commission Office?
Ans. – That is based on District Level, you can find your Charity Commission Office in your city.
9) How much time it will take for NGO Registration?
Ans. – It will take one to two months.
Where a society that has been incorporated as a board wishes to alter its rules, this can only occur if the alterations will not affect the trust. The board must register a copy of the relevant document showing the change if any variation is made in the trusts or additional property becomes vested in the board. Where a society has been incorporated as a board and wishes to alter its rules, the board must notify the Registrar of the alteration within one month of the resolution. Although there is no prescribed form for notifying the Registrar of a change of rules, the Registrar has developed a cover sheet to help ensure the rule change is able to be registered.
Membership fee, if any, in the society shall be determined, from time to time, by the members at a general meeting. Any person residing in Alberta, and being of the full age of 18 years, may become a member by a favourable vote passed by a majority of the members at a regular meeting of the society, and upon payment of the fee. Such voting shall be by ballot, unless the meeting by resolution otherwise decides. Any person under the age of 18 years may in the same manner become a member upon payment of half of the said fee.
Any member wishing to withdraw from membership may do so upon a notice in writing to the Board through its Secretary. If any member is in arrears for fees or assessments for any year, such member shall be automatically suspended at the expiration of six months from the end of such year and shall thereafter be entitled to no membership privileges or powers in the society until reinstated. Any member upon a majority vote of all members of the society in good standing may be expelled from membership for any cause which the society may deem reasonable.
The President shall be ex-officio a member of all Committees. He/she shall, when present, preside at all meetings of the society and of the Board. In his/her absence, the Vice-President shall preside at any such meetings. In the absence of both, a chairperson may be elected at the meeting to preside.
BOARD OF DIRECTORS
Board of Directors, Executive Committee or Board, shall mean the Board of Directors of the society. The Board shall, subject to the bylaws or directions given it by majority vote at any meeting properly called and constituted, have full control and management of the affairs of the society, and meetings of the Board shall be held as often as may be required, but at least once every three months, and shall be called by the President. A special meeting may be called on the instructions of any two members provided they request the President in writing to call such meeting, and state the business to be brought before the meeting. Meetings of the Board shall be called by 10 days notice in writing mailed to each member or by three days notice by fax or telephone. Any four members shall constitute a quorum, and meetings shall be held without notice if a quorum of the Board is present, provided however, that any business transactions at such meeting shall be ratified at the next regularly called meeting of the Board; otherwise they shall be null and void.
A person appointed or elected a director becomes a director if they were present at the meeting when being appointed or elected, and did not refuse the appointment. They may also become a director if they were not present at the meeting but consented in writing to act as director before the appointment or election, or within ten days after the appointment or election, or if they acted as a director pursuant to the appointment or election.
Any director or officer, upon a majority vote of all members in good standing, may be removed from office for any cause which the society may deem reasonable.
The Secretary shall also keep a record of all the members of the society and their addresses, send all notices of the various meetings as required, and collect and receive the annual dues or assessments levied by the society. Such monies shall be promptly turned over to the Treasurer for deposit in a Bank, Trust Company, Credit Union or Treasury Branch as required.
It shall be the duty of the secretary to attend all meetings of the society and of the Board, and to keep accurate minutes of the same. He/she shall have charge of the Seal of the society which whenever used shall be authenticated by the signature of the Secretary and the President, or, in the case of the death or inability of either to act, by the Vice-President. In case of the absence of the Secretary, his/her duties shall be discharged by such officer as may be appointed by the Board. The Secretary shall have charge of all the correspondence of the society and be under the direction Of the President and the Board.
The Treasurer shall receive all monies paid to the society and be responsible for the deposit of same in whatever Bank, Trust Company, Credit Union or Treasury Branch the Board may order. He/she shall properly account for the funds of the society and keep such books as may be directed.
He/she shall present a full detailed account of receipts and disbursements to the Board whenever requested and shall prepare for submission to the Annual Meeting a statement duly audited of the financial position of the society and submit a copy of same to the Secretary for the records of the Society. The Office of the Secretary and Treasurer may be filled by one person if any annual meeting for the election of officers shall so decide.
The books and records of the society may be inspected by any member of the society at the Annual Meeting or at anytime upon giving reasonable notice and arranging a time satisfactory to the officer or officers having charge of same. Each member of the Board shall at all times have access to such books and records.
1) What are the things to be kept in mind while proposing a name of the society?
Ans. – Things to be kept in mind while proposing a name for the society are:
The name of the society proposed should not attract the provisions of The Names and Emblems (Prevention of Improper Use) Act 1950 i.e. the name proposed should not imply any connection with Government of India, or Government of State or any connection with legal authority
The name proposed for the registration of the society should not be identical to name of any other society, which has already been registered or resembles such name likely to deceive the public or the members of the society.
2) Who all can form a society?
Ans. – A society can be formed by “Any Seven or more persons associated for any literary, scientific or charitable purpose, or for any such purpose as described in Section 20 of this Act, may, by subscribing their names to a memorandum of association, and filing the same with registrar of Joint Stock Companies (The word Joint Stock Companies has been replaced by respective state acts as either Registrar of Societies or Inspector General of registration or as the respective State Act may specify) form themselves into a society under this Act”.
3) What is the eligibility criterion to form a society?
Ans. – Apart from individuals the following persons are also eligible for subscribing to the memorandum of the society:
Foreigners can subscribe to the memorandum of the society.
The position of Partnership firm regarding its eligibility to subscribe to the memorandum of the society is not clear from provisions of the Partnership Act 1932, Societies Registration Act 1860 or any other judicial decision. However simple analogy can be drawn by keeping in view the provisions of Sec 25(4) of Companies Act, 1956 which permits a partnership firm to become a member of a Section 25 company and provides that the firm may be a member of any association or company registered under the provisions of the Companies Act 1956. However on dissolution of the firm, the membership of the firm to such an association or company will lapse.
Therefore drawing a parallel from the above, we may deduce that a partnership firm may subscribe to the memorandum of society.
Company can subscribe to the memorandum of society
A registered society can subscribe to memorandum of association of proposed society.
4) What is the purpose behind the formation of a Society?
Ans. – According to Section 20 of the Societies registration Act 1860 the society may be registered for the following purpose:
1) Grant of charitable assistance
2) Creation of military orphan funds
3) Societies established at the general presidencies of India
4) Promotion of science, literature, fine arts, instructions or diffusion of useful knowledge, diffusion of political education, foundation or maintenance of libraries, public museum and galleries of paintings, works of art, collection of natural history, mechanical and philosophical inventions, instruments , designs.
5) What are the steps for alteration, extension or abridgement of the aims and objectives of a society?
Ans. – Section 12 of the Societies Registration Act 1860 has laid down the following steps for alteration, extension or abridgement of the aims and objectives of a society which have to be followed:
- Submission of the proposal by the governing body to the members of the society
- 10 days notice to members about holding of a special meeting,
- Convening a special meeting for the consideration of the proposal, 3.Convening a special meeting for the consideration of the proposal,
- Approval of the proposal by 3/5th of members,
- Convening second special meeting after a month, and
- Confirmation by 3/5th of members present at the second special meeting
6) What are the books of accounts to be maintained by a society?
Ans. – Generally the following books of account to be maintained by the society on Single Entry/Double Entry basis are:
- Cash Book/Bank Book giving the daily receipts
- Voucher files
- Receipt books
7) Should a society need to get the books of accounts audited?
Ans. -Yes There are various provisions under the specific State Societies Registration Act(s) wherein provisions for Audit and filing of annual returns are specified. In general these Acts specify the check and audit of the accounts to be done by a duly qualified Chartered Accountant.
1) Are foreigners allowed as members of the trust?
Ans. -There is no apparent bar on the foreigners becoming a trustee of trust.
2) Will there be subsequent problems if foreigners are the trustees?
Ans. -It is difficult to get FCRA registration if foreigners are there as trustees. Normally, FCRA registration is not granted to such organizations. The FCRA is silent in this regard but FCRA authorities confirmed that FCRA registration is not given if foreigners are its subscribers/members/ trustees. We did come across instances of organizations being given FCRA registration in spite of having foreigners as board members/trustees. But these are exceptions and we have to assume that FCRA registration will not be given, unless the foreigners involved are too distinguished and intervention of higher authorities is availed.
The difficulty involved in getting FCRA permission for Ngo’s having foreigners as trustees is a deterrent for foreign Ngo’s contemplating the option of floating an Indian Ngo. Therefore, foreign Ngo’s should explore other legal and legitimate way of controlling an Indian Ngo.
3) Can foreigners be inducted as ex-officio or nominated trustees?
Ans. -There should not be any problem in having foreigners as ex-officio or nominated trustees. The trust deed can be suitably drafted so as to have Ex-Officio directors or nominated trustees.
4) After registration, how long a trust can exist?
Ans. -The registration as a trust provides perpetual existence. A trust will cease to exist if the subject matter of the trust is totally liquidated. A trust cannot be revoked once it is legitimately created.
5) What are the annual returns that a Trust is required to file with the Registrar?
Ans. -A trust is not regulated by any authority therefore, no annual returns are required to be filed with the registering authority. However, trust has to file annual returns as required under FCR Act, 1976 and Income Tax Act, 1961.
6) Who can form a trust?
Ans. -Every person competent to make a contract and competent to deal with property can create a Trust. Besides individuals, a body of individuals or an artificial person such as an association of persons, an institution, a limited company, a Hindu Undivided Family through its Karta can also form a Trust. For all practical purposes, two or more individuals are required to form a charitable trust.
7) How to form a `Trust’?
Ans. -a) A trust can be formed as per Section 4 of Indian Trust Act 1982 for a lawful purpose;
- b) A trust should have a document written and signed by trustees or a sole trustee;
- c) A trust can be formed through a will also;
There is no definite form to create a trust. Objectives of the trustee should be clear and unambiguous;
8) What are the purposes for which a trust can be formed?
Ans. -Trust cannot be formed for the following purposes under Sec.4 of the Act:
- a) Unlawful purposes;
- b) Against provisions of Indian Trusts Act 1932 rules made there under;
- c) If there are provisions for cheating etc. in the trust;
- d) If the trust is intended to cause loss or damage to one’s property
9) Who can form a trust?
Ans. -The following can form a trust under Sec.7 of the Indian Trusts Act 1882:
- a) A person capable of making contract can form a trust;
- b) Trust can be formed on behalf of minor with permission of Civil Court.
10) What is the stamp duty to be paid for a trust deed?
Ans. -1. Rs.500/- if only money is contributed by the author of trust or if immovable property is conveyed where in the author remains as the sole trustee.
- Same duty as conveyance if the immovable property is conveyed and the author is not a trustee or a sole trustee.
11) What is the fee for registration of trust deed?
Ans. -As per Article III of table of fees under Registration Rules 1965, fee shall be paid at 1 percent on the total of value shown by the trustee or value of movable or immovable property shown in the trust deed.
12) Can a trust be cancelled?
Ans. -A trust can be cancelled on the following grounds as per Sec. 78 of The Indian Trust Act 1882:
- a) Trust can be cancelled at the will of the trustees;
- b) Trust can be cancelled if there is provision for cancellation in the deed.
- c) If author of a trust creates trust for the purpose of repayment of his debt and if this is not informed to the creditor author can cancel the trust.
13) Can the defects in the trust be cured by amendment?
Ans. -Yes, amendment can be made a rectification or supplementary deed.
14) What is meant by a Society or an Association? Why should it be registered?
Ans. – A Society / Association is an organized group of people with the sole aim and objectives of non-profitable service. Registration of such an association will have legal recognition. It will be possible to run society legally with discipline. Society can sue and be sued.
15) Who will register a Society/Association and where it can be registered?
Ans. – Registrar of Societies i.e., District Registrar of a District is appointed under Societies Registration Act 1850 is the authority to register the societies. Society can be registered in the office of the Registrar in which District the society is intended to be established.
16) What is the minimum number of people to form a society or an Association?
Ans. – A minimum 7 persons who have attained the age of 18 years can form a society or an Association.
17) For what purpose a society/association is formed?
Ans. – Association could be formed for the following purposes:
- Educational, art and religious;
- Knowledge of commerce and industry;
- Political education training;
- Maintaining Library;
- Collection/preservation of historical monuments, technical and philosophical research.