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Registration Of Trust

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In order to claim tax break, every Trusts, NGOs, Societies are required to be registered under Income tax Act.

In order to claim tax break, every Trusts, NGOs, Societies are required to be registered under Income tax Act.

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  • 1. Seminar of Charitable Organisation 1 REGISTRATIONS UNDER INCOME-TAX ACT23/04/2011 Presented by CA Paras Savla
  • 2. Agenda2  Registration  12A / 12AA  80G  10(23C) 23/04/2011
  • 3. 3 Registration u/s 12A 23/04/2011
  • 4. Regulatory framework - 12AA4  S. 12A  S. 12AA  Rule 17A  Form 10A F 23/04/2011
  • 5. Registration5  Why registration under Income-tax Act 1961  No single window clearances  Applicability of Multiple laws, Multiple compliances  Separation & independent registration prescribed p p g p under Income-tax Act 1961 to claim benefit u/s 11 & 12 & to obtain registration u/s 80G(5) 23/04/2011
  • 6. Registration Application6  When Wh to apply f registration l for  No statutorily time limit has been prescribed AApplication made post 1 6 07 provisions of S 11 & 12 li i d 1-6-07, ii f S. shall apply in relation to income from assessment year following the previous year in which application made. g p y pp  Lets examine under mentioned situation  Trust deed executed on 1-4-2009  Registered before Charity Commissioner on 15-8-2009  Application filed on 1-4-2010  Registration granted on 15 9 2010 15-9-2010  Impact on income for AY 2009-10, AY 2010-11  What if application is filed on 31-3-2010 23/04/2011
  • 7. Jurisdiction7  Whom to apply  JurisdictionalCommissioner  Director of Income-tax  Ifapplicant assessed in four metropolitan cities, Delhi, Mumbai, Kolkata & Chennai  Circular No. 585 dated 13-11-1990. 23/04/2011
  • 8. Registration Application8  Application for registration u/s 12A(1)(aa) in form 10A in duplicate  Simple application form, information to be provided  Name of applicant,  Name and address of Trust, author/founder  Date of creation of trust  Name & address of trustee manager DDetails of mandatory enclosures il f d l 23/04/2011
  • 9. Registration Application9  Application A li ti accompanied b various d i d by i documents t  Original instrument about constitution of institution /trust along with one copy  Where original instrument cannot be conveniently produced, Commissioner may accept certified copy  Certified copy means?  In case Original trust deed / instrument / Memorandum of Association is not in English / Hindi translation of it in English / Hindi need to be submitted  Copy of Accounts in case such charitable organisation in existence in prior financial years  Trust established on 1-2-2011  Application made on 10-4-2011  Accounts for FY 2010-11 need to be submitted at the time of application  What if application submitted on 25-3-2011?  Whether to submit provisional accounts?  The requirement of obtaining the details of the past accounts cannot be said to be a ceremonial one.  Ananda Marga Pracharaka Sangha v. CIT 218 ITR 254 (Cal.) 23/04/2011
  • 10. Registration Application10  In I case trust is created other than under an instrument, the d h h d h document evidencing the creation / establishment of trust.  Established by producing constitutive and evidential documents. The evidential documents cannot be limited to documents which directly prove the creation of the trust, they will embrace all documents which afford a logical basis of inferring creation of the trust and till such d f f h d ll h documents can b be described to be "documents evidencing the creation of the trust trust" within the meaning of r. 17A(a).  Laxminarayan Maharaj And Another. v. CIT 50 ITR 465 (M.P.) 23/04/2011
  • 11. Registration Process11  On receipt of application Commissioner / Director may –  Call for such documents / information to satisfy himself about genuineness of activities of the charitable organisation  Make such enquiry, deem necessary  Pass necessary speaking order registering such institution or rejecting registration 23/04/2011
  • 12. Details generally called12  Commissioner b an l C i i by large calls f following i f ll for f ll i information ti  Original trust deed & registration certificate, if not filed along with application  Details actual charitable / religious activities carried on by trust  Explanation as to how object and activities are within the meaning of S.2(15)  NOC from the owner of premises along with proof of ownership, which is used by Trust.  Personal presence of Trustee at least once and POA in case reresented th P l fT t tl t d i t d through h authorised representative  Copies of bank accounts, along with details of withdrawals and deposits  Copies of PAN card of all Trustees and Trust and original for verification  Details of ordinary / corpus donation, earmark funds, received during last 3 years along with name, address, PAN of donor  If trust is old copies of ITR  Copies of change report submitted to charity commissioner in case of change in trustees 23/04/2011
  • 13. Enquiry during registration13  At A registration stage, it is not proper to examine the application of income. f  Fifth Generation Education Society v. Commissioner of Income Tax. 185 ITR 634 (All.)  Whether trust would be in position to claim exemption u/s 11/12 are the question p p / / q which is required to be examined at the time of assessemnt and not at the time of grant of registration.  DIT v. Garden City Education Trust [2010] 91 Taxman 238 (Kar.) y [ ] ( )  There is nothing in the language to suggest that an institution of a religious nature is precluded from getting registration under section 12A. Whether the said society would be entitled to the benefits under sections 11 and 12 or as the case may be or, be, under section 80G, would be pre-judging the issues before the grant of certificate. In insisting upon the society in changing or amending its bye-laws and in refusing to consider the application on the ground that those bye-laws had not been changed bye laws so as to exclude the religious aspect from those bye-laws, the Commissioner had clearly over-stepped his limits.  New Life in Christ Evangelistic Association (NLC) v. CIT [2000] 111 Taxman 16 (Mad.) 23/04/2011
  • 14. Enquiry during registration14  Language i S 12A d L in S. does not b t bares, not even remotely, religious i tit ti t t l li i institution to get itself registered u/s 12A  CIT v. Shri Digamber Jain Mandir 2008 Tax LR 400 (Raj)  Jainism i religion at all, it was f d th t some authorities h J i i is li i t ll found that th iti have propounded that Jainism is not a religion but a way of life. Further If Jainism was regarded as a religion, then the trust was not for a particular religious community or caste.  Shri Chanda Charitable Trust v ITO [1995] 80 Taxman 300 (AHD.)(MAG.)  The Hindu society is neither a religious community nor a caste within the meaning of section 13(1)(b)  Bharatiya Utkarsha Mandal v. Inspecting Assistant Commissioner 12 Taxman 95 (NAG. - TRIB.)  S. 12AA does not refers activities in India or outside India. Registration cannot be denied for income applied outside India.  M. K Nambyar Saarc Charitable Trust v. UOI 249 ITR 556 (Del.) 23/04/2011
  • 15. Time limit15  Application for A li ti f registration must b di i t ti t be disposed of within 6 months f d f ithi th from th the end of the month in which application was filed.  Non-consideration of application for registration within time fixed, would result in deemed grant of registration registration.  Society for the promotion of Education Adventure sport & Conservation of Environment v CIT [2008] 171 Taxman 113 (All.)  Wherever application is made the authorities must act within the time made, time- frame. Failure on the part of the authority concerned to pass order within the statutorily laid down period of limitation will give rise to a presumption that registration, as applied for by the assessee, has been granted. This is the natural and legal consequence of an action on the part of the department not to have acted within the prescribed time-frame. The latches and the lapse on the part of the department could not be to its advantage.  Karnataka Golf A K t k G lf Association v. Di t of I i ti Director f Income-tax [2004] 91 ITD 1 (BANG ) t (BANG.) 23/04/2011
  • 16. Effect of Registration16  Registration is precondition for exemption. Registration did not ipso facto mean that the assessee would be entitled to exemption u/s 11. However the assessee has a strong case for claiming exemption when registered. But, eligibility of exemption is required to seen by the AO at the time of making the assessment for a particular assessment year.  M. Visvesvaraya Industrial Research and Development Centre v. ITAT 251 ITR 852 (Bom.)  Registration under section 12A is a fait accompli to hold Assessing Officer back from f th probe i t objects of t t b kf further b into bj t f trust.  ACIT v. Surat City Gymkhana [2008] 170 Taxman 612 (SC)  Registration of an institution is sufficient proof of it being established for charitable purpose.  Sonepat Hindu Educational and Charitable Society v. CIT [2005] 278 ITR 262 (P&H) 23/04/2011
  • 17. Effect of Registration17  Once the organisation had been registered with the Commissioner u/s 12A / as charitable institution, the Assessing Officer could not treat the organisation as non-charitable institution. The order of the AO refusing to treat the assessee as charitable was beyond his jurisdiction and also against section 118.  Surat City Gymkhana v. Assistant Commissioner of Income tax 106 Taxman 114 v Income-tax (AHD.) (MAG.)  Scope of registration proceed and its cancellation are different from the assessment proceedings. A di Assessing officer i prima f i b d b such i ffi is i facie bound by h registration.  Madhya Pradesh Madhyam v CIT [2002] 125 Taxman 382 23/04/2011
  • 18. 18 Registration u/s 80G(5) 23/04/2011
  • 19. Regulatory framework19  S. 80G(2)(iv)  S. S. 80G(5) ( )  Rule 11AA  Form 10G F 23/04/2011
  • 20. Eligibility for registration20  S.80G(2)(iv) ll S 80G(2)(i ) allows any f d or i tit ti f th registration u/s 80G(5) fund institution for the i t ti / 80G(5). On registration donor is entitled for deduction on account of donation.  Registration is granted to the institution/ Trust established in India for Charitable purpose and fulfilling various conditions  “Charitable purpose” does not include, any whole or substantially the whole of a religious purpose. Exceptions-  Application upto 5% of the total income is allowed for the religious purposes.  Institution is set up either as a  Public Charitable Trust or  Registered under Societies Registration Act or  Company u/s 25 or  University established by law or  Education i tit ti Ed ti institution recognised by Government or University established by law i db G t U i it t bli h d b l or affiliated to University established by law  Institution financed wholly or in part by the Government or local Authority 23/04/2011
  • 21. Conditions21  Income not li bl t b i l d d i t t l i I t liable to be included in total income of the trust u/s 10(23AA)/ f th t t / (23C),11, 12.  Income trust/institution derives income from business condition about non-inclusion of income u/s 11 would not apply  Separate books of accounts for such business is maintained  Donation received not directly or indirectly used for the purposes of business  Institution issues certificate to donor confirm above 2 condition.  Constitution documents does not allows for transfer of income or assets for any purposes other than charitable purposes.  Income of trust is given to the authors family members with a condition that such part would be spent on a particular charitable object of the trust is not in violation this condition.  Geep Flashlight Industries Ltd. v. CIT [1978] Tax LR 490 (All.)  Post grant of donation to hospital if some are reserved for the donors employees is not violative of provision.  CIT v. Maharaja Shri Umed Mills [1984] 148 ITR 72 (Raj.) 23/04/2011
  • 22. Conditions22  Institution / trust is not for the benefit of particular religious community or caste.  Not application for institution created Scheduled Castes, backward classes, Scheduled Tribes or of women and children hild  Institution / trust maintains regular accounts of its receipts and expenditure. i d di  Registration w.e.f. 1-10-2009 is valid till it is cancelled.  Registration if granted earlier and valid as on 1-10- 2009 shall become perpetual and valid untill cancelled. 23/04/2011
  • 23. Registration Process23  The application for approval of any institution or fund u/s 80G(5)(vi) shall be made  InForm No. 10G in triplicate.  The application shall be accompanied by pp p y  Copy of registration granted under section 12A (12AA) or copy of notification issued under section 10(23) or 10(23C) ;  Notes on activities of institution or fund since its inception or during the last three years, whichever is less ;  Copies of accounts of the institution or fund since its inception or during the last three years, whichever is less. 23/04/2011
  • 24. Registration Process24  Upon A li ti U Application th C the Commissioner may call f i i ll for such f th h further ddocuments or t information from the institution or fund or cause such inquiries to be made as he may deem necessary in order to satisfy himself about the genuineness of the activities of such institution or fund.  Usually following additional information is called :  Declaration  About non-violation of provisions of section 11, 12 and 13.  Condition f C di i of section 80G(5) have b i h been satisfied. i fi d  Name & Address of Trustee.  Copy of PAN of trust & all trustees.  List of Donors of Rs Rs 10 000/ & above Rs. Rs.10,000/- above.  Declaration of no change in constitution & object of trust.  Copy of certificate of registration of trust.  Certified Copy of Trust deed duly registered under Bombay Public Trust Act, 1950.  Copy of acknowledgement for filing returns of last three years.  Copy of financial statement along with the form 10B of last three years. 23/04/2011
  • 25. Enquiry during registration25  The Commissioner i satisfied th t all th conditions l id d Th C i i is ti fi d that ll the diti laid down i clauses in l (i) to (v) of sub-section (5) of section 80G are fulfilled by the institution or fund, he shall record such satisfaction in writing and grant approval to the institution or fund specifying the assessment year or years for which the approval is valid.  However post amendment words specifying validity period has not been deleted under rules.  The authority granting approval cannot act as an AO. The inquiry of the authority should be confined to finding out if institution satisfies prescribed condition. Actual assessment of institution would not affect claim for special deduction /s 80G. ded ction u/s 80G CIT not j stified in ref sing renewal of appro al on the justified refusing approval ground that the income of the applicant trust was likely to be included in the taxable income for not complying with the requirements of s. 11.  N.N. Desai Charitable Trust v. CIT 246 ITR 452 (Guj) ( j)  Making investment in violation of S.11(5) cannot be sole determinative factor for rejection of certificate u/s 80(5)  Orpat Charitable Trust v CIT [2002] 256 ITR 690 (Guj) 23/04/2011
  • 26. Grant of registration26  In I case th C the Commissioner i satisfied th t one or more of th i i is ti fi d that f the conditions laid down in clauses (i) to (v) of sub-section (5) of section 80G are not fulfilled, he shall reject the application for approval, after recording the reasons for such rejection in writing and after providing to trust an opportunity of being heard.  The Commissioner shall pass an order either granting the approval or rejecting th application withi six months f j ti the li ti within i th from th d t of the date f application.  Any time taken by the applicant in not complying with the directions of the Commissioner shall be excluded excluded.  Application filed on 8-3-2001  Since detailed information not produced, enquiry was conducted providing opportunity to petitioner on 16-7-2003 16 7 2003  On appreciation facts application was rejected on 4-8-2003  In view of R 11AA(3) order passed is not beyond 6 months.  Ref Banglore Education Trust v DIT [2004] 136 Taxman 423 (Kar.) g [ ] ( ) 23/04/2011
  • 27. Few cases27  Once registration under section 12A was granted, b fit t O i t ti d ti t d benefit to assessee under section 80G could not be denied  Hiralal Bhagwati v. CIT [2000] 246 ITR 188 (GUJ.)  Neither S. 80G(5) nor R. 11AA empowers the registration authorities to refuse registration only on the ground that the particulars of donors are not provided. Non providing the details of donors, AO during assessment proceeding may evoke S 115BBC & S 13(7) B d d k S. S. 13(7). But this is not relevant for deciding grant of registration unless there is other material to justify that the assessee is engaged in the activities which whi h are not charitable and are only a camouflage and such t h it bl d l fl d h anonymous donations are a consequence of such uncharitable activities / activities which are not genuine  Kalyanam K ti v CIT [2009] 314 ITR (AT) 295 (L k T ib ) K l Karoti (Luck.-Trib.) 23/04/2011
  • 28. Registration of Religious etc Trusts28  Any A sum paid f th renovation or repair of t id for the ti i f temple, church, mosque, gurdwara or l h h d any other place notified by the Central Government in the Official Gazette to be a place or historic, archaeological or artistic importance or a place of public worship of renown throughout any State or States will qualify for deduction from the total States, income of the donor to the extent of 50 per cent of the donations – S. 80G(2)(b)  Donations made to ordinary religious entities are not eligible for any deduction under section 80G of the Act Act.  Registration for grant of deduction u/s 80G(2)(b) in the hands of donor is required to be made before DGIT(E)/CIT and he will recommend the applicant’s case with his comments t the CBDT f such notification. t to th for h tifi ti  Applications on plain paper, in quadruplicate, stating name of the temple, mosque, gurdwara, church, or other place (as distinct from the name of the institution / trust undertaking renovation / repair work) with precise particulars to identify the name.  Copy of the trust deed or evidence of the instrument of creation of the trust, if any. 23/04/2011
  • 29. Registration of Religious etc Trusts29  The Th composition of th M iti f the Managing C i Committee of th organisation itt f the i ti undertaking renovation / repair work.  Whether the permission of the State Government authorities has been obtained t carry out th renovation / repair work. bt i d to t the ti i k  The category in which the notification is to be recommended whether of historical importance or archaeological importance or artistic importance or a place of public worship of renown throughout a State or States In case it States. falls in more than one category, the same should specifically be mentioned.  In case recommendation is for the notification as building of historical, archaeological or artistic importance the supporting material preferably importance, with some expert opinion should be furnished.  In case the recommendation is for notification as a place of public worship renowned throughout a State of States, the particular State or States must be specified and the material in support of the contention of importance should be furnished. 23/04/2011
  • 30. 30 Registration u/s 10(23C) 23/04/2011
  • 31. Regulatory framework – 10(23C)31  S. 10(23C)(iv)/(v)/(vi)(via)  Rule 2C, 2CA ,  Form 55, 56 23/04/2011
  • 32. Eligibility32  First proviso to S. 10(23C) provided that institutions/funds specified u/s under S. /f f / 10(23C)(iv)/(v)/(vi)/(via) are required to get themselves registered for grant of the exemption under the Act.  Specified Charitable trust/funds/institution are:  Any charitable funds or institution approved having regards to objects and its importance through out India or through out State or States - s. 10(23C)(iv)  Any trust (including legal obligation) institution wholly for public religious purposes or for public religious purposes and charitable purposes are approved having regards to the manner in which the affairs of the trust / institution are administered and supervised for ensuring i i income i applied f the objects. - s. 10(23C)( ) is li d for h bj 10(23C)(v)  Any university or other institution existing solely for education purposes and not for purposes of profit are approved - s. 10(23C)(vi) (earlier exempted u/s 10(22))  Any hospital or other institution for the reception and treatment of persons suffering from illness or mental defectiveness etc existing solely for philanthropic purposes and not for the purposes of profit - s. 10(23C)(via) (earlier exempted u/s10(22A) 23/04/2011
  • 33. Registration process33  Second proviso authorises appropriate authority to S d h h approve such institutions.  Appropriate authority is Chief Commissioner or Director General  For cases falling in the jursdiction of DIT(E), Mumbai, the prescribed authority is CC-I  For the cases other than specified jurisdiction shall be before the Chief Commisioner or Director General to whom AO has a jurisdiction to assess  Notifcation No. SO 851(E) dt 30-5-07, as amended by SO 1668(E), dt 14-7-2010 – Applicable for application u/s 10(23C)(iv)/(v)  Notifcation No. N tif ti N SO 852(E) dt 30 5 07 as amended b SO 1666(E) 30-5-07, d d by 1666(E), dt 14-7-2010 – Applicable for application u/s 10(23C)(vi)/(via) 23/04/2011
  • 34. Registration process34  Application A li ti would b made in ld be d i  Form No. 56 for approval of funds specified u/s 10(23C)(iv)/(v)  Form No. 56D for approval of funds specified u/s 10(23C)(vi)/(via)  Application to made in quadruplicate along with following documents:  Deed of trust / memorandum or articles of association / other documents evidencing legal status of the enterprise  List of major office bearer including settlor/members of governing body  A photo copy of latest certificate u/s 80G  True copy of assessment order passed for 3 years, if any.  Photocopies of the communication with Commissioner with reference to application of Trust for registration u/s 12A 23/04/2011
  • 35. Time limit35  Application for A li ti f grant of exemption or renewal on or after 1 6 06 t f ti l ft 1-6-06 shall be made on or before 30th September of the relevant assessment year.  14th proviso to 10(23C) i  Act nowhere provides any provisions for condonation of delay in presenting application u/s 10(23C)(vi) for grant of exemption. In absence of such a provision application filed beyond statutory b f h l fl d b d period cannot be accepted afted condoning the delay.  Roland Educational & Charitable Trust v CCIT [2009] 309 ITR 50 (Ori.)  Sant Baba Sunder Singh Canadian Charitable Trust v CBDT [2010] 195 Taxman 88 (P&H)  Belated application should be considered on maerit. Since there is pp no statitory bar preventing condonation  Padmashree Krutarth Acharya Institute of Engineering & Technology v CCIT [2009] 309 ITR 13 (Ori.) 23/04/2011
  • 36. Enquiry before registration36  Before approving appropriate authority would call for such documents or information or make inquiry to satisfy himself about genuineness of the activities of such institutions.  Approvals granted on or after 1-12-2006 shall be perpetual untill it is withdrawn.  Cir No. 7/2010 dt. 27-10-2010. 23/04/2011
  • 37. Conditions – Education institutes37  Conditions precedent for availing exemption: C diti d tf ili ti  The education institution must actually exist and mere taking of steps would not be sufficient.  The educational institution need not be affiliated to any university or Board in Board, fact a society need not itself be imparting education and it is enough if it runs some school or colleges  The education institution must exist solely for educational purposes and not for purposes of profit. But merely because there is surplus, it cannot be said that the education institution exists for profit  If educational institution makes profit incidentally for example by publishing and selling text books and such profits are applied only for the spread of education education, it is entitle to exemption.  CIT v. Delhi Kannda Education Society [2000] 246 ITR 731 (Del.)  An educational institution running school/college solely for educational g / g y purposes & not for profit can be regarded as ‘other educational’ institution u/s 10(22).  Aditanar Educational Institution v ACIT [1997] 90 Taxman 528 (SC). 23/04/2011
  • 38. Conditions – Education institutes38  Trust T t can b considered f exemption u/s 11(1)( ) r.w.s. 2(15) b t educational be id d for ti / 11(1)(a) 2(15), but d ti l institution contemplated u/s 10(22) is a narrower concept. U/S. 11(1)(a) r.w.s. 2(15) activities are in focus where as s.10(22) both institution and the activities are in focus. Institution imparting formal education is accountable to some authority and has h control over th t t l the taugh. h  Saurashtra Education Foundation v CIT [2004] 141 Taxman 26 (Guj).  A society having primary object the mere financing of students to pursue their education cannot be treated as an educational institution for s 10(22A) such s. institution can claim exemption u/s 11 only.  Saraswathi Poor Students Fund [1984] 150 ITR 142 (Ker.)  It is not necessary that an education institution to be eligible for exemption u/s s o ecessa y a a educa o s u o o e gbe o e e p o 10(22) should be affiliated to any university or any Board.  CIT v Academy o General Education [1984] 150 ITR 135 (Kar.)  If the institution exists solely for the purpose of education and it derives income from any other source and if the income is used only for the purpose of education, then it would come u/s 10(22)  Brahmin Education Soc v ACIT [1996] 89 Taxman 434 (Ker.) 23/04/2011
  • 39. Conditions – Education institutes39  Actual i t A t l existence of th educational i tit ti as well as some educational activities f the d ti l institution ll d ti l ti iti during the previous year is a necessary pre-condition for the eligibility of exemption. Mere taking steps for establishment of the educational institutions may not be sufficient.  CIT v. Devi Educational Institution [1985] 153 ITR 571 (Mad.)  Society ran educational institution and it was not for making profit, merely because object of society was also to serve the church and nation, would not mean that the educational institution was not existing solely for education purposes  Ewing Christian College Society v CIT [2009] 318 ITR 160 (All.)  Besides traditional education assessee also providing guidelines to get admission in p o ess o a s u o o pu sue e professional institution to pursue their higher studies, assessee was considered as g e s ud es, co s de ed charitable institution which was engaged wholly for the purposes of education.  City Montessori School (Regd) v UOI [2009] 315 ITR 48 (All.)  Amount received as capitation fees by educational institution is not exempt  P S Govindaswamy Naidu & Sons v ACIT [2010] 324 ITR 44 (Mad.) 23/04/2011
  • 40. Conditions – Hospital40  Merely because th assesee i running th h it l on commercial M l b the is i the hospital i l lines and activities are not restricted to free treatment to poor and needy, the assessee will not be dis-entitled to the exemption u/s 10(22A), 10(22A) as along as dominant purpose of a philanthropic one one.  CIT v Pulikkal Medical Foundation (P.) Ltd. [1994] 210 ITR 299 (Ker.)  Philanthropy is not restricted to give free treatment only to extremely poor, b it would also b philanthropy to give treatment l but ld l be h l h at a concessional rate to those who though not extremely poor cannot afford to pay full and normal charges.  Breach Candy Hospital Trust v CIT [2010] 322 ITR 246 (Bom.)  In order to claim exemption it is not necessary that the patients must be admitted and treated as in-patients in hospitals or there must be facilities for such treatment.  Mangilal Gotwawat Charitable Trust v ACIT [1984] 150 ITR 682 (Ker.) 23/04/2011
  • 41. Let s Let’s talk41 23/04/2011
  • 42. Thank you42 23/04/2011

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