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ASPECTS COVERED

NON GOVERNMENT ORGANISATION Practical Aspects relating to Formation, Registration, Accounting & Provisions of Taxation CA. A.K. Goyal. ASPECTS COVERED. Definition NGO vis – a- vis NPO Formation Registration with different authorities Sources of Funds to NGO

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ASPECTS COVERED

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  1. NON GOVERNMENT ORGANISATIONPractical Aspects relating to Formation, Registration, Accounting & Provisions of Taxation CA. A.K. Goyal

  2. ASPECTS COVERED • Definition • NGO vis – a- vis NPO • Formation • Registration with different authorities • Sources of Funds to NGO • Accounting aspects • Provisions of Income Tax Act, 1961

  3. What is “NGO” • What is “NGO” • Defined as “Non Government Organisation” • Whose Control & Management does not vest into the Government but with a totally “independent” group of persons. • These are being formed for Charitable, Educational, Social or Religious purposes only

  4. NGO vis-à-vis NPO • NPO denotes “Non Profit Organization” i.e. Their motto is not to earn profits • Their objects may not cover benefits of public at large but are generally restricted to group of persons • Generally all “NGO” may also a kind of “NPO”, but all NPO are not necessarily NGO • Common example of NPO are Various Trade Organisation/Associations registered under Non Trading Companies Act

  5. Different Forms of NGO Different options available for formation • A Trust Registered under Indian Trust Act • A Society registered under State Societies Act • A Society registered under Indian Societies Act • A Company Registered u/s 25 of the Companies Act, 1956 The Most Common form among above are either a trust or Society registered under the State Societies Act.

  6. Formation of Trust/Societies Factors to be considered while selecting the form of NGO • Number of persons interested to form the • NGO • Main objects of the NGO • Amount to be settled by settler or no initial • fund available • Starting of activities ,whether immediately • or can be started after registration

  7. Proposed Management Pattern i.e. closely • held or widely held • Planning for generation of Fund • From private sources, public / community • Grants & contribution from Government, Funding Agencies (including FCRA) • Reputation / Goodwill • Annual formalities / compliances • Penalties

  8. Formation of Trust • Why to Form a Trust • For discharge of Charitable and/or Religious sentiments of the settler/author of the trust, in a way that ensures public benefit. • For Claiming exemption from income tax u/s 10/11 of the I.T. Act, 1961 as the case may be in respect of incomes applied to Charitable and/ or Religious purposes • For the welfare of members of the family and/or other relatives who are dependent on the settler of the trust.

  9. Definition of Trust Section 3 of Indian Trust Act, 1882 defines trust as under: A “trust’ is an obligation annexed to the ownership of the property, and arising out of a confidence reposed by one person in other and enforceable in court of equity. - A person who reposes or declares the confidence is ‘Author of the Trust: - The person(s) who accepts the confidence is called “Trustee(s)” Continue …..

  10. -The person for whose benefit the confidence is accepted is called the “beneficiary” - The Subject matter of the trust is called “trust property” or “trust money” - The instrument if any , by which the trust is declared is called the “instrument of the trust” The word confidence reposed is key word for the formation of trust since the trustee is bound to held the property for the beneficiary and he cannot use the property for his own benefit.

  11. Creation of Trust – Drafting of Deed • Information Required: • Name of Settler • Details of Movable/immovable property he • wants to settle towards corpus of the Trust • Name of at least three prospective trustees • (Settler can also be a trustee ) • Name of the trust • Address of the Registered Office of the Trust • Main Objects of the Trust / other Objects • Beneficiary details

  12. Formation of Society – Under Rajasthan Societies Act Information Required: • Names of at least Fifteen persons who wants to form the Society & agreed to becomes subscriber to the Memorandum & Byelaws of the Society • Names of seven prospective office bearers (incl. President, Secretary & Treasurer) of the Proposed Society • Proposed name of the Society ( Norms apply) • Address of the Registered Office • Main Objects of the Society

  13. Drafting of Trust Deed in case of Trust & Memorandum & Bye laws in case of a Society • Important clauses to be taken care of : • Appointment, term of office & removal of • Trustees / Office Bearers & their powers & • duties • Appointment of an additional Trustee(s) / • Office Bearer(s) • Formation of various Committees etc • The manner of making, altering & rescinding regulations

  14. Manner of dissolving of Trust / Society • The determination upon the dissolution that the property be utilised by the Government or others in particular manner • Removal or termination of any Office bearer or any member on some happening or conditions • Clause may be given to allow donation/ contribution to trust/society having similar objectives • Clause allowing authority to borrow money and / or mortgage the property

  15. The Trust Deed is required to be executed on Non Judicial Stamp Paper of Rs.500/- ( in Rajasthan ) • The Memorandum / Byelaws of a Society can be typed on plain paper or a booklet available for this purpose may also be utilised .

  16. Formation of Societies Under Indian Societies Act • Minimum 15 persons from 8 different States required 2. Registration papers will have to be filed with the Registrar of Societies, Delhi. • Other requirements are generally same as per registration in Rajasthan Societies Act

  17. Registration with Sub Registrar(Required in case of immovable property settled by the setter of the Trust, otherwise it is optional ) • Two copies of Trust Deed , one original & • one Xerox copy • Xerox copy must have original signature • Two Photo of each trustee/ Settlor • Payment of requisite fee • All Trustee & Settler are required to be present • in person in the office of sub–registrar. • Two Witnesses also required to be present • in person

  18. Registration with Registrar of Societies • Mandatory in case of Society • Three Copies of Memorandum & Bye laws of Proposed Society with original signature of all the subscribers i.e at least Fifteen persons on Memorandum • Each page shall be signed by three office bearers • It shall be witnessed by two persons & shall be notarised

  19. Address / I.D. Proof of all Executives (self attested ) • Recommendation of Parshad / MLA required • An affidavit (as prescribed) by office bears • Payment of requisite fee Rs.2,516/- (Challan by Dept ) • Application can be filed through President / Secretary or any office bearer • Management Committee shall have the one person from one family.

  20. Registration With DevesthanVibhag • Registration mandatory in case of Religious Trust / Society possess immovable property ( temple ). • Registration Mandatory to becomes Public Charitable Trust • In Other case , it is optional • Apply in Form No. 6 [ Rule 17(2) ] of Rajasthan Public Trust Act • Submit two attested copies of Trust Deed in case of trust & Memorandum & Byelaws in case of Society.

  21. Copy of Registration Certificate required to be submitted in case of Society • A notice will be given by Dept. to be published in any one local news paper seeking objection within 60 days • After no objection within above mentioned time, registration generally granted after fixing a day for hearing .

  22. NON GOVERNMENT ORGANISATION Practical Aspects relating to Registration, Accounting & Provisions of Taxation CA. A.K. Goyal

  23. Registration u/s 12A A & Grant of approval 80G of the I.T. Act (A) Documents Required Application to be made before the CIT having jurisdiction of address of Registered Office. All documents to be filed in triplicate, fourth copy be retained for our record Form No. 10A for application u/s 12AA Form No. 10G for application u/s 80G List of Trustees /List of Office bearers

  24. Details of Main activity which has been undertaken or intended to be undertaken. Copy of Trust Deed. h. In Case of Society a. Registered copy of Memorandum & Bye Laws. b. Copy of Registration Certificate. i. Accounts made up to the date of application

  25. (B) Other Important Points Earlier, a period of twelve month from the date of creation/formation was provided for filing of above application with a power to CIT to condone the delay, If any. But, now this power of condonation has been withdrawn & it is provided that Registration shall be granted from the F.Y. in which above application has been filed by the trust or society in all cases, where such applications have been filed on or after 01.06.2007. Continue

  26. All benefits of section 11 shall be available only after getting registration u/s 12A of the I.T. Act, 1961, hence it is better to apply for above registration immediately after the creation of trust or registration of Society. After necessary enquiry, the CIT may grant registration u/s 12AA as well as approval u/s 80G of the I.T. Act, 1961 Every order granting or refusing registration u/s 12AA shall have to be passed before the expiry of six months from the end of the month, in which application has been made. As per section 253 (1) ( c ), the order of refusal both under 12A / 80G are appealable before ITAT.

  27. Changes Made in the Provisions of section 80G Earlier power was vested with the CIT to grant approval u/s 80G for a period not exceeding five years. Vide Finance Bill 2009, amendment made w.e.f. 01.10.2009 that once approval is accorded under this section, -it will be permanent ( no need to reapply ) -unless withdrawn by the department -after affording reasonable opportunity to the Institution.

  28. There are two types of cases : a. Where the approval already granted expires on or after 01.10.2009 and b. Where such approval expires before 01.10.2009 According to Memorandum to Budget & further clarification vide circular No. 7 dated 27.10.2010 it is made clear that existing approvals expiring on or after 1st October, 2009 shall be deemed to have extended in perpetuity unless specifically withdrawn. In second case, an application has to be made before the concerned CIT for renewal of exemption.

  29. Accounting Aspects – various issues Aspects covered • Various sources of Funds / receipts • Various project related, administrative & Capital Expenditure • Accounting issues • Are Grants income ? • Depreciation on Fixed Assets

  30. Sources of Funds / Receipts to NGO • Grants & Contribution from local authorities & Government • Grants & Contribution from various Funding Agencies (Indian or Foreign), from another NGO. • Donations including donation towards Corpus Fund. • Income from Fixed Assets, like rental income, Vehicle hire income, Computer Charges.

  31. Income from any business with the intention to use the profit to attain main object of the institution. f. Bank Interest on S.B. A/c as well as FDR’s. - Interest received - Interest Accrued - TDS deducted by bank ( Submission of form 15G by Trust / Societies )

  32. g. Community contribution in the form of labour, material, service etc. h. Income from sale of Fixed Asset. i. Income from Agricultural and irrigation activities. j. Annual Membership fee. k. By Providing various services like Fooding arrangement to different Projects l. Bank loans to self help groups m. Savings of the Self help group that is utilized in project

  33. Various project related, administrative & Capital Expenditure • 1. Expenditure incurred as per projects • 2. Various Expenses charged from the projects • 3. Capital Expenditure • Out of Project Fund • Out of H O Fund • 4. Administrative Expenses • 5. TDS, ESI, PF Payment • 6. Bank accounts / charges

  34. Various Accounting issues • Preparation of Receipt & Payment account is must. • Accounting on cash basis is highly recommended. ( DTC also provides cash method of accounting ) c. All calculation for receipt & application of income under the I.T. Act should have to be computed from receipt & payment account only. d. Grants , Contribution and/or Donation. e. Donation in kind. f. Unutilised amount of grants in various projects

  35. Are Grants Income ? • Some views are that grants are received for specific purposes & represent a liability, hence they should not taken in I & E A/c & should be shown under the head liability in Balance Sheet – not a correct view • To show the reality of the activity of the NGO, all grants should have been shown as income against which all expenses ( including capital Expenditure ) should be shown. Provision be made for unspent balance & be carried to Balance Sheet. • Grant received for capacity building- treatment

  36. g. Local Contribution in form of material, Labour, Services etc. h. Purchase & Sale of Fixed Assets i in some projects as per scheme of Project. ii By head office out of current or accumulated Surplus. iii Fixed Asset acquired by donation _ As per ICAI nominal value should be accounted, but a fair market value be considered i. Charging of various expenses by H.O. (including in various projects) i. Administrative Expenses. ii. Fooding & Mess Expenses. iii. Vehicle Charges. iv. Computer Charges. v. Telephone & other Expenses.

  37. j. Bank Interest on S.B. A/c & FDR’s. k. Donation towards Corpus Fund. l. Utilisation of Funds of one project in other project. 1. From Local Project to another Local Project 2. From FCRA Project to another FCRA Project 3. From FCRA to Local Projects or vice versa ? It is advisable to maintain fixed assets register irrespective of the source of receipt / purchases of fixed assets.

  38. Consolidation of Accounts

  39. Separate Receipt & Payment account prepared as per requirements of Funding Agencies • Consolidated Receipt & Payment Account, I & E Account & Balance Sheet must be prepared - To know the overall activity of the NGO - Income Tax return can be prepared only from consolidated accounts - Attachment to ITR -7 will be only of consolidated statements

  40. Donation to other NGO having similar objects - No restriction on such donation by one NGO to Other NGO subject to powers given in bye laws of NGO - w.e.f. 01.04.2003 One NGO can give donation to other NGO out of current income only i.e. it can not be given out of accumulated amount. ( Explanation to section 11(2) added by Finance Bill 2002

  41. Depreciation on Fixed Assets – a critical Analysis • Depreciation on Fixed Assets-whether required to be provided and the manner of its accounting is still a controversial issue Opinion of differences between professionals, NGO’s, Funding Agencies , Various High Court & Supreme Court .

  42. Depreciation – Judicial opinion • Depreciation on Fixed Assets can also be claimed as application of income to charity, if the capital expenditure (on which depreciation is claimed) has not been claimed as income applied to charitable or religious purposes. • Karnataka High Court in CIT v/s Society of Sister of St. Anne 146 ITR 28) had allowed depreciation in addition to capital expenditure to be claimed as income applied to charitable/religious purposes. • Supreme Court in Escorts Ltd. vs. Union of India in 199 ITR 43 has ruled that a double deduction in respect of the same outgoing (i.e. depreciation and capital expenditure) cannot be allowed. • This was subsequently followed by the Income Tax Appellate Tribunal [IAC vs. MahilaSidhNirmanYojna (ITR No. 1880 and 2020 DEL/1989 dated 6.7.1994)].

  43. What is depreciation • When we purchase any fixed asset, it lasts for many years, say for 5-10 years, or 100 years In case of building as per useful life of that asset. • Some assets diminishes as per passage of time, like vehicle, furniture etc. • Some assets become unusable due to changes in the technology like computer & other technical machinery • When we charge depreciation, we write off a proportionate amount each year so as to reduce the book value of such assets. • Vehicles etc. can be written off in 10 years, computer may be in 4 years

  44. Who pays for Depreciation • Funding Agencies / Donors pays for purchases of new Fixed Assets • Neither Funding Agency nor NGO pays for depreciation. • It is only an accounting entry to reflect the Written down value of the assets.

  45. Depreciation Accounting • Two ways of accounting • Through the Income & Expenditure Account • Capital Fund not created • Dr. - Depreciation A/c • Cr. - Fixed Assets A/c • Directly to capital Fund • ( Value of assets transferred to capital Fund ) • Dr. - Capital Fund A/c • Cr. - Fixed Assets A/c

  46. Provisions of Income Tax Act

  47. Taxation aspect of Trust/Societies • Provision of section 11 to 13 apply in case registered u/s 12AA of the I.T. Act, 1961. • 85% of receipt of the year is to be utilized during that year itself. • Donation/contribution towards Corpus Fund not considered as receipts ( Sec.11(1)(d) ) • In case 85% of the receipt not utilized: • Option u/s 11(1) Explanation 2 may be exercised by filing a letter before A.O. before the due date u/s 139(1) of the I.T. Act.

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