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For approval under section 80G(5), an institution is required to fulfil the following conditions : (i) The trust should not have any income which is not exempted, such as business income. If, the NGO has business income then it should maintain separate books of account and should not divert donations received for the purpose of such business. (ii) The bylaws or objectives of the trust should not contain any provision for spending the income or assets of the NGO for purposes other than charitable. (iii) The trust is not working for the benefit of particular religious community or caste. (iv) The trust maintains regular accounts of its receipts and expenditures. (v) The trust 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." Out of these conditions, the Commissioner of Income-tax (Exemptions) in his order has not given any finding that the assessee has violated any of these conditions as stipulated under section 80G(5) except that the registration of the trust has been cancelled under section 12AA(3) of the Act. Once the order passed by the Commissioner of Income-tax (Exemptions) under section 12AA has been quashed by this Tribunal, consequently it cannot be said that the trust is not registered under section 12AA of the Act. We do not find that the assessee has violated any of the conditions as stipulated under section 80G. The learned Departmental representative vehemently relied on the order of the Commissioner of Income-tax (Exemptions). We noted that the hon'ble Delhi High Court in thecaseof Director of Income-tax v. Neel Gagan Charitable Trust [2013] 357 ITR 86 (Delhi) held that exemption under section 80G could not be denied where violation under section 80G could not be established. Granting of exemption under section 12AA of the Act is itself sufficient material to prove that the activities/operations of the trust/impugned institutions are genuine and carried out in accordance with the object of the trust. No contrary decision was brought to our knowledge by the learned Departmental representative. We, therefore, quash the order of the Commissioner of Income-tax (Exemptions) dated January 6, 2016 and restore the registration granted to the impugned trust under section 80G(5) of the Act with effect from April 1, 2010.

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Sec. 12AA(3) & 80G(5)(vi) of Income Tax Act, 1961—Charitable purpose— VARUNARJUN TRUST vs. CIT.[2018] 67 ITR (TRIB) 509 (ITAT-LUCKNOW)

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