Socio Research & Reform Foundation

Current Budget proposals have made changes in FCRA Act.

As per the existing definition of a foreign source, an Indian registered company which has more than 50% shareholding held by foreign sources is to be regarded as ‘foreign source’. However as per the new proposals, as long as the shareholding is within the FDI norms as declared under FEMA then such companies will not be treated as foreign source. This is in line with the proposal already floated by FCRA Dept and earlier discussed on SRRF Dialogue (visit link http://blog.srr-foundation.org/?p=2786)

It may be of interest that the change is being made effective from the beginning of FCRA 2010. Thus in case anyone has received funds from such companies, need not apply for condonation, considering changes in the Act. Further in future, now such funds will be treated as local and would not fall under FCRA.

It may be of interest to note that considering BJP/Congress have been indicted vide a HC Order on the issue of receipt of donation from Sterlite a subsidiary of Vedanta, discussed earlier on the above link. This amendment with retrospective effect could be to bailout the two political parties by excluding such companies from the very definition of foreign source. It may be noted that currently a Special Leave Petition is pending in the Supreme Court against the HC order.
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Socio Research & Reform Foundation (NGO)
512 A, Deepshikha, 8 Rajendra Place, New Delhi – 110008
e-mail: socio-research@sma.net.in

Dear dialogue-members,

We have a four wheeler vehicle purchased in a project under FCRA 5 years back.
Now the vehicle condition is not good, hence we want to sale it. Further we want to purchase a new vehicle putting the earned money from sale, as a seed money/Down Payment to get a loan from Bank for the purpose. Can we do so? Then what is the process we have to follow?

Expecting response.

R.K.Mohanty

FCRA Dept has finally announced the Renewal Process for FCRA registration. Renewal process as expected would be undertaken online. Thus all persons who have already applied or even those who have not applied would need to apply online through FC3. Last Date of application is 15th March 2016.

Fee for Renewal of Rs 500/- would need to be paid online through FCRA Payment Gateway. For persons who have already sent their DD/cheques are likely to receive these back, unless your name is appearing in the list given by FCRA authorities. For facilitating our SRRF Dialogue members, we have downloaded the list and is available on following link.
http://www.srr-foundation.org/circulars/list_associations.pdf

For getting further details of FCRA renewal process, please wait for further announcements on this forum.
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Socio Research & Reform Foundation (NGO)
512 A, Deepshikha, 8 Rajendra Place, New Delhi – 110008
e-mail: socio-research@sma.net.in

Dear Dialogue Group members,

The companies Act 2013 makes it mandatory to spend 2% of PBT for certain category of companies on CSR. Most of the companies are establishing Foundations under registration of Trust. Some of the companies incorporated under the companies act 1956 are operating with 100% foreign investments. Please clarify whether the Foundations of their own or NGOs who receive grants from such companies need to have FCRA or not.

R S Sharat

Dear Dialogue Members,

We have grant FCRA registration on 10.03.2015 and during the FY 2014-15 not received any foreign contribution, in this regards our quotation is “NIL” return (FC4) file for FY 2014-15, it is mandatory or not.

if it is mandatory but in the online FC4 without all documents attachment (Audited Statement,CA Certificate,Bank Statement which is not available for NIL Foreign contribution) not completed and not accepted.

Please suggest

Thanks with Regards
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Sunil K Suryavanshi

Dear Members,

I received a foreign fund. I have to educate people for disaster management and also have to develop an equipment which could monitor the disastrous activity while disaster happens. developing the equipment is almost 80% of the total project cost. The equipment has to be researched and then developed and operated and monitored by the scientific company registered as “for profit”.

What kind of procedure/agreement/consultation/bills/mode should I adhere to undertake while dealing with this scientific company.

Please Help….

—
Amit Singh
Ganga Sansthan
32, Ameer Nagar,
Near Aishbagh Railway Station
Lucknow-226004

Dear Friends,
Please throw light on:

Gone are the days when donors used to crowd at the doors of some good NGOs for funding good works.
Gone are great men like Gandhiji whose call for funds in crowded public meetings used to net in enough for good causes. Accountability was ensured.

We are into new form of crowd sourcing of funds through platforms committed to social causes, not just commercial ventures. Question is how to account for crowd-funds under FCRA, if

• some of the contributors through Indian platforms are foreigners
• some of the contributors through foreign platforms are Indian Citizens
• does Government have any check on anti-national elements taking advantage of such platforms?

Yes, NGOs have yet another method of sourcing funds for socioeconomic causes and also disaster relief and rehabilitation.

Udayashankar

In a decision by ITAT-Delhi, following important aspects of a charitable institution were decided upon.

• Whether for registration under S.12AA/12A, execution of a formal deed of trust is necessary, without which registration could not be granted ?
• Whether tax authorities, while determining the registration under S.12AA/12A could go into the issue of income & expenditure account?
• Whether the activities of the Trust for the benefit of a particular caste or community and performing charitable activities for this purpose would be debarred from registration under S. 12AA?
• Whether supreme head of the Trust taking food and clothes, etc. from the funds of the Trust was violative of the provisions of S.13 of IT Act?

The case is relating to Tsurphu Labrang, a Trust created in 1159 AD and presently headed by the 17^th Gyalwang Karmapa, residing in exile in Dharamsala. The Trust could not file the original Trust Deed, instead filed an affidavit that the trustees have in their possession all the Trust funds comprising of both movable & immovable properties, duly accounted for in its accounts and that all income arising from trust properties shall be applied for the aims and objects of the Trust, which were detailed in the affidavit itself.

The Tribunal stated that the Income Tax Act does not lay down any requirement that execution of a formal deed of Trust is necessary without which the registration could not be granted. It examined Rule 17A of Income Tax Act in this regard, which states that where the Trust is created under an instrument, copy of an instrument will need to be submitted with the application alongwith accounts for which activities have been completed, but in no case more than for 3 years. The second limb of the said Rule states that where Trust is created or the Institution is established, otherwise than under an instrument, the document evidencing the creation of the Trust is sufficient. There is no specific provision on what type of this document is required, thus it could be of any type. Even Indian Trust Act allows oral creation of a Trust and if the assessee is able to give some evidence of creation of such Trust by a word of mouth, the same shall be eligible for registration under S.12AA/12A. In this regard the present Head of the Trust has given a full declaration giving complete history of the organisation from 1159 AD. The Tribunal gave reference of Laxminarayan Maharaj vs CIT [1984] where Trust was created 100 years ago without any Trust document. MP HC decided in favour of the assessee on account of other evidences. Even an appeal to the SC was dismissed.

The Tribunal relying on several judgments stated that at the time of registration revenue authorities are required to examine only the aims and objects of the Trust and whether these are charitable in nature. The stage for application of income shall arise only when the Trust files its IT return. Cases relied upon include CIT vs Surya Educational & Charitable Trust [2013] a decision by Punjab & High Court.

Tax authorities argued that the trustees took refuge in Sikkim for 35 years but neither any Income Tax returns were filed nor any application moved under S.12A. The Tribunal stated that the Trust has moved application for registration on 31^st March 2011 and therefore delay is not relevant, since the assessee has sought exemption from AY 2011-12 onwards only. It also rejected the argument of the Dept. that name of the 17^th Karmapa is involved in certain foreign contribution violations, that those proceedings are on a different footing and would continue in a different court.

The Tax authorities’ objections that the objects given under the Declaration could not be original objects as existing in 1159, the Tribunal stated that the Objects of a Trust are likely to be dynamic which can always be modified to reflect present human needs and need not remain stagnant. Main consideration should be that the objects at the time of filing of declaration are charitable in nature and other essential conditions required for an organisation to be granted exemption are existing.

The Tribunal also rejected the argument that the activities of the Trust are for the benefit / charitable purpose of a particular community. The Tribunal stated that it is a well settled law that an object beneficial to a section of the public is an object of general public utility. The intention of the institution should be impersonal in nature and for a sufficiently defined and identifiable section of the public. It referred to several cases while arriving at this conclusion, including Ahemdabad Rana Caste Association vs CIT, Gujarat (1971 – SC) & CIT vs Dawoodi Bohra Jamat [2014 – SC].

The last issue that the Tribunal decided whether the Supreme Head of the institution who was receiving food and clothes, etc. from the funds of the Trust was violative of S.13. The Tribunal observed that the 17^th Karmapa, who has renounced the world. He even diverts all offerings made to him to the Trust. He was full-time involved in the affairs of the Trust and was not taking any salary or other monetary compensation for the same. It observed that Section 13 does not debar the genuine basic expenditure of the Mehant or supreme head of the trust for their survival. The provision is meant to debar the author or trustees from parting away part of the income or Trust property for their personal benefit.

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Socio Research & Reform Foundation (NGO)
512 A, Deepshikha, 8 Rajendra Place, New Delhi – 110008

Dear Sir,

How to deal a situation when you have a Prior permission FCRA account and also the organisation received a permanent registration.

Do we need to file two separate Annual return or it can be mergered into one return.
As the organisation has two fcra bank account one for prior permission and another for permanent registration.

Kindly clarify.

Thanking you,

With warm regards,

Ravistan Anthony

Resolution of Ford Foundation’s working in India

In April last year, Ford Foundation was put on ‘watch list’ by MoH. It created a huge stir within the NGO community as well as in diplomatic relations considering the clout of Ford Foundation in US Administration. Ford Foundation has been behind several think tanks and research endeavors in India. It is reported that it has invested some $ 500 million (as per a report in Huffington Post) in India since 1952.

While the initial action against the Ford Foundation may have been due to political reasons, it later turned out that Ford Foundation had never registered itself in India, despite the requirements, thus clearly putting Ford Foundation on defensive.

Requirement: Ford Foundation set up its office in India way back in 1952, when even Companies Act 1956 was not on statute book. Companies Act 1913 which was operative then required that all foreign entities incorporated outside British India, but starting a place of business within British India would need to be registered as Foreign Company under the 1913 Act. The same position continued under the Companies Act 1956, albeit British India replaced with India. It is not clear, if Ford Foundation took necessary registration under this Act. At that time situation was quite informal and several agencies got into India, based on even bilateral agreements between Indian Govt and the entities concerned. It is understood that Ford Foundation was operating under an invitation from former prime-minister Jawaharlal Nehru.

However in 1973 with promulgation of Foreign Exchange Regulation Act (FERA), RBI became the nodal agency for regulating all such entities with registration outside the country. This Act was replaced by Foreign Exchange Management Act 1999. RBI came out with an order notified through a circular in May 2000. This Order basically brought out specifics on how such agencies were required to become operative. One of the essential requirement was that every company having a place of business in India, but incorporated outside would formally apply to RBI for permission and obtain a UIN no. It seems Ford Foundation never complied with this regulation.

Thus the present resolution seems to be that Ford Foundation would be registered under FEMA, which it is understood, it has already done so and also approved by the Govt.  However an Economic Time report states that it would still need to ‘inform’ MoH of all donations / grants that it makes to Indian NGOs and individuals, however whether this would mean ‘seeking permission’ or just ‘intimation’ can be said only after reading the RBI order that has allowed Ford Foundation to operate in India.

Although question remains how this ‘intimation’ vs ‘Permission’ reconciles with FCRA is anybody’s guess?

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Socio Research & Reform Foundation (NGO)
512 A, Deepshikha, 8 Rajendra Place, New Delhi – 110008