Wednesday, August 17, 2011

Registration Procedure -Society


Registration of society


Registration Procedure -Society
According to section 20 of the Societies Registration Act, 1860, the following societies can be registered under the Act: ‘charitable societies, military orphan funds or societies established at the several presidencies of India, societies established for the promotion of science, literature, or the fine arts, for instruction, the diffusion of useful knowledge, the diffusion of political education, the foundation or maintenance of libraries or reading rooms for general use among the members or open to the public, or public museums and galleries of paintings and other works of art, collection of natural history, mechanical and philosophical inventions, instruments or designs.’

Legislation : Societies are registered under the Societies Registration Act, 1860, which is a federal act. In certain states, which have a charity commissioner, the society must not only be registered under the Societies Registration Act, but also, additionally, under the Bombay Public Trusts Act. 
Main Instrument : The main instrument of any society is the memorandum of association and rules and regulations (no stamp paper required), wherein the aims and objects and mode of management (of the society) should be enshrined.

Trustees : A Society needs a minimum of seven managing committee members; there is no upper limit to the number managing committee members. The Board of Management is in the form of a governing body or council or a managing or executive committee 

Application for Registration : 
Registration can be done either at the state level (i.e., in the office of the Registrar of Societies) or at the district level (in the office of the District Magistrate or the local office of the Registrar of Societies).(2)

The procedure varies from state to state. However generally the application should be submitted together with: (a) memorandum of association and rules and regulations; (b) consent letters of all the members of the managing committee; (c) authority letter duly signed by all the members of the managing committee; (d) an affidavit sworn by the president or secretary of the society on non-judicial stamp paper of Rs.20-/, together with a court fee stamp; and (e) a declaration by the members of the managing committee that the funds of the society will be used only for the purpose of furthering the aims and objects of the society. 

All the aforesaid documents which are required for the application for registration should be submitted in duplicate, together with the required registration fee. Unlike the trust deed, the memorandum of association and rules and regulations need not be executed on stamp paper. 

Section 80 G registration


Section 80 G registration:
Section 80G of the Income Tax Act enables an Income Tax Payee to claim deduction for donation made by them to certain organisation. This deduction is subject to certain conditions.
The amount of deduction depends on-
a). To whom the donation has been made.
b). The amount of donation. They are exempted from 100% to 50% of the amount of donation.
All institutions are eligible for registration provided they fulfill the following conditions:-
  • The Institutions should not spend any income or assets for any purpose other than a charitable purpose.

  • The Institution should not be for the benefit of any particular religion, community, or caste.

  • The Institution should maintain regular accounts.

  • The Institution should be registered under the Societies Registration Act or any other similar welfare Act.

  • Their expenses on religious activity should not exceed 5% of total income.

  • They should submit their income tax return regularly.

To get your society registered U/s 80G, You have to apply in form no. 10G.
  • Form No. 10G requires the following important information:-

  • Name and Address of the Institution.

  • Name and Address of the office bearers.

  • Income tax Particulars.

  • Amount of surplus and mode of their investments.

This application should be accomplished with the following documents:-
  • Copy of the registration granted U/s 12A or copy of notification issued U/s 10(23) or 12(23C) if any.

  • A note on the activities of the institution for the last three years.

  • Copy of the audited accounts for the Past three years.

  • Memorandum and Rules & Regulations.

  • Copy of the registration Certificate of the society


Scope of services for the assignment relate to registration of society:

1.      Report on the compliance points required to assure permission for Section 10A exemtion( To issue 80G certificate to Donor) is obtained.
2.       Liasioning, preparation of documents for permission with the authorities.

Section 25 Company


Section-25 Company
According to section 25(1)(a) and (b) of the Indian Companies Act, 1956, a section-25 company can be established ‘for promoting commerce, art, science, religion, charity or any other useful object’, provided the profits, if any, or other income is applied for promoting only the objects of the company and no dividend is paid to its members. 

Legislation : Section-25 companies are registered under section-25 of the Indian Companies Act. 1956.

Main Instrument : For a section-25 company, the main instrument is a Memorandum and articles of association (no stamp paper required) 

Trustees : A section-25 Company needs a minimum of three trustees; there is no upper limit to the number of trustees. The Board of Management is in the form of a Board of directors or managing committee. 
Regional Director Approval ( 20 days time)
Once name availability is onfirmed, an application should be made in writing to the regional director of the company law board. The application should be accompanied by the following documents: 
Three printed or typewritten copies of the memorandum and articles of association of the proposed company, duly signed by all the promoters with full name, address and occupation. 

A declaration by an advocate or a chartered accountant that the memorandum and articles of association have been drawn up in conformity with the provisions of the Act and that all the requirements of the Act and the rules made thereunder have been duly complied with, in respect of registration or matters incidental or supplementary thereto.

Three copies of a list of the names, addresses and occupations of the promoters (and where a firm is a promoter, of each partner in the firm), as well as of the members of the proposed board of directors, together with the names of companies, associations and other institutions in which such promoters, partners and members of the proposed board of directors are directors or hold responsible positions, if any, with description of the positions so held. 

A statement showing in detail the assets (with the estimated values thereof) and the liabilities of the association, as on the date of the application or within seven days of that date. 
An estimate of the future annual income and expenditure of the proposed company, specifying the sources of the income and the objects of the expenditure. 

A statement giving a brief description of the work, if any, already done by the association and of the work proposed to be done by it after registration, in pursuance of section-25. 

A statement specifying briefly the grounds on which the application is made. 

A declaration by each of the persons making the application that he/she is of sound mind, not an undischarged insolvent, not convicted by a court for any offence and does not stand disqualified under section 203 of the Companies Act 1956, for appointment as a director.

3.The applicants must also furnish to the registrar of companies (of the state in which the registered office of the proposed company is to be, or is situate) a copy of the application and each of the other documents that had been filed before the regional director of the company law board. 

4.The applicants should also, within a week from the date of making the application to the regional director of the company law board, publish a notice in the prescribed manner at least once in a newspaper in a principal language of the district in which the registered office of the proposed company is to be situated or is situated and circulating in that district, and at least once in an English newspaper circulating in that district. 

5.The regional director may, after considering the objections, if any, received within 30 days from the date of publication of the notice in the newspapers, and after consulting any authority, department or ministry, as he may, in his discretion, decide, determine whether the licence should or should not be granted. 

6.The regional director may also direct the company to insert in its memorandum, or in its articles, or in both, such conditions of the licence as may be specified by him in this behalf.


ARTICLES OF ASSOCIATION: 5 days time
The Articles of Association (AA) contain the rules and regulations of the company for the management of its internal affairs. The Articles lay down the rules, conditions and regulations for achieving the objectives and purposes as prescribed by the Memorandum of Association. The AA is nothing but a contract between the company and its members and also between the members themselves that they shall abide by the rules and regulations of internal management of the company specified in the AA. It specifies the rights and duties of the members and directors.






DIRECTOR IDENTIFICATION NUMBER: 7 days time

We need to apply for Director Identification number which takes around one week time without which we can not apply for name availability. Director Identification number we need on special approval from Ministry of corporate affairs.

DIGITALS SIGNATURE: 7 days time

We need to apply for Digital signatures which take around one week time without which we can not sign on any Registrar of companies form and apply for name availability. Digital signature we need to register with Ministry of corporate affairs.


FEES CLAUSE:Complete incorporation takes 20 days time after regional director approval
The ROC will give the certificate of incorporation after the required documents are presented along with the requisite registration fee, which is scaled according to the share capital of the company, as stated in its Memorandum.
The schedule for the same is as follows:
·        For registration of a company whose nominal share capital does not exceed Rs.100, 000: Rs.4,000.
·        For registration of a company whose nominal share capital exceeds Rs.100,000, the above fee of Rs.4,000 with the following additional fees regulated according to the amount of nominal capital:
     
·        Rs. 300 for every Rs.10,000 of nominal share capital or part of Rs.10,000 after the first Rs.1,00,000 up to Rs.5,00,000;
·        Rs. 200 for every Rs.10,000 of nominal share capital or part of Rs.10,000 after the first Rs.5,00,000 up to Rs.50,00,000;
·        Rs. 100 for every Rs.10,000 of nominal share capital or part of Rs.10,000 after the first Rs.50,00,000 up to Rs.1 crore;
Rs. 50 for every Rs.10, 000 of nominal share capital or part of Rs.10,000 after the first Rs.1 crore.

Comparision among Trust, Society and Non profit Company


Comparision among Trust, Society and Non profit Company











Trust
Society
Section-25 Comapny
Statute/Legislation
Relevant State Trust Act or Bombay Public Trusts Act, 1950
Societies Registration Act, 1860
Indian Companies Act, 1956
Jurisdiction
Deputy Registrar/Charity commissioner
Registrar of societies (charity commissioner in Maharashtra).
Registrar of companies
Registration
As trust
As Society
In Maharashtra, both as a society and as a trust
As a company u/s 25 of the Indian Companies Act.
Registration Document
Trust deed
Memorandum of association and rules and regulations
Memorandum and articles of association. and regulations
Stamp Duty
Trust deed to be executed on non-judicial stamp paper, vary from state to state
No stamp paper required for memorandum of association and rules and regulations.
No stamp paper required for memorandum and articles of association.
Members Required
Minimum – two trustees. No upper limit.
Minimum – seven managing committee members. No upper limit.
Minimum three trustees. No upper limit.
Board of Management
Trustees / Board of Trustees
Governing body or council/managing or executive committee
Board of directors/ Managing committee
Mode of Succession on Board of Management
Appointment or Election
Appointment or Election by members of the general body
Election by members of the general body

Trust Deed clauses


What is  Trust Deed ?
The instrument by which the trust is declared is called instrument of Trust, and is generally known as Trust Deed.
It is well settled that no formal document is necessary to create a Trust as held in Radha Soami Satsung vs. CIT- (1992) 193 ITR 321 (SC). But for many practical purposes a written instrument becomes necessary under following cases –
1.      When the trust is created by a will irrespective of whether the trust is public or private or it relates to movable or immovable property. This is because as per Indian Succession Act, a will has to be in writing 
2. When the trust is created in relation to an immovable property of the value of Rs.100 and upwards, in case of a private trust. In case of public trusts, a written trust deed is not mandatory, even in respect of immovable property, but is optional. 
3. Where the trust/association is being formed as a society or company, the instrument of trust; i.e., the memorandum of association, and Rules and Regulations has to be in writing. 
A written trust-deed is always desirable, even if not required statutorily, due to following benefits : 
d. a written trust deed is a prima facie evidence of existence of a trust ; 
e. it facilitates devolution of trust property to the trust; 
f. it clearly specifies the trust-objectives which enables one to ascertain whether the trust is charitable or otherwise; 
g. it is essential for registration of conveyance of immovable property in name of the Trust; 
h. it is essential for obtaining registration under the Income-tax Act and claiming exemption from tax; 
i. it helps to control, regulate and manage the working and operations of the trust; 
j. it lays down the procedure for appointment and removal of the trustee(s), his/their powers, rights and duties; and 
k. it prescribes the course of action to be followed under any eventuality including dissolution of the trust.
  
2. Types of Instrument of Trust
Trust deed, where a trust is declared intervivos; i.e., by settling property under Trust. 
1. A will, where a trust is declared under a will; 
2. A memorandum of association along with rules and regulations, when the association/institution is being formed as a society under the Societies Registration Act, 1860. 
3. A memorandum and articles of association where the association /institution is desired to be formed as a Company.



  
3. Trust Deed-Clauses
A person drafting the deed of a public charitable trust has to bear in mind several enactments, particularly the Indian Trusts Act, any local enactment relating to trusts, like the Bombay Public Trusts Act for the State of Maharashtra and the Income tax Act. Such a person has also to keep in mind the relevant judicial pronouncements dealing with the scope of "charitable purpose" and accordingly decide whether a particular purpose is charitable or not. An instrument of Trust 
or association/institution created or established should contain inter alia the following clauses: 
0. Nothing contained in this deed shall be deemed to authorise the trustees to do any act which may in any way be construed as statutory modifications thereof and all activities of the trust shall be carried out with a view to benefit the public at large, without any profit motive and in accordance with the provisions of the Income-tax Act, 1961 or any statutory modification thereof. 
1. The trust is hereby expressly declared to be a public charitable trust and all the provisions of this deed are to be construed accordingly. 
The Trust Deed, generally contains the following clauses : 
2. Preamble 
3. Trust name by which Trust shall be known 
4. Place were its office shall be situated 
5. Author or settlor of the trust 
6. Names of the Trustees 
7. Beneficiaries 
8. The property settled, for Trust – In case of immovable property, it should contain full description of the property sufficient to identify it 
9. An express intention to direct the trust property from the trustees 
10. The objects of the Trust 
11. Minimum and maximum number of Trustees 
12. The procedure for appointment, removal, replacement of trustees 
13. Trustees rights, duties and powers 
14. Administration of trust 
15. Provision for maintenance of accounts, auditing etc. 
16. Clause enabling, spending and utilization of the Trust funds or corpus. 
17. Bank Account operations 
18. Borrowing money on security for the purpose of the Trust 
19. Investment of the Trust funds and dealing with Trust properties 
20. Alienation of immovable property of the Trust 
21. Amalgamation clause 
22. Dissolution of Trust 
23. Irrevocable nature of the trust.

Operational Requirements for A Society


Operational Requirements For A Society

An annual list of members of the management committee shall be filed to Registrar of society within 30 days of the AGM. However if no AGM is held for any reason as per society Registration Act 1860, section whatsoever, than an annual list of members of the managing Committee as on 31st December each year shall be submitted to the office of the Registrar of societies. Non submission of the list attracts a financial liability of Rs.50/- for the list of each year

Once in every year a list of the office bearers and members of the Governing Body shall be filled with the Register of Societies, N.C.T of Delhi as required under Section 4 of The Societies Registration Act 1860 and applicable to the National Territory of Delhi.

Minutes
A : Governing Body Meetings
There shall be minimum four meetings of the Governing Body each calendar year, i.e. one meeting in every three calendar months.

B : Annual General Meetings
There shall be minimum one Annual General Meeting (AGM) of all the Members of the Society every year. 

The AGM can be held at any time between April 1 to December 31 after the end of the financial year each year.
  • 1 - Adoption of Annual Accounts.

  • 2 - Admission/Resignation/ other matters of the members of the society.

  • 3 - Investment of funds of the society.

  • 4 - IAppointment of the members of Governing Body on every expiry of its tenure

C : Extra Ordinary Annual General Meetings
For any urgent or emergent matter like Admission/Resignation/Death of the Member / Change of Name/change of address /change of objectives /change of Rules & Regulation or any other major issue of the society.

Notice & Quorum
A Governing Body Notice
Minimum 10 days clear notice or as per Rules & Regulation of the society and the quorum shall be 1/3rd members of the Governing Body or as per Rules & Regulation.

B :Annual General Meetings
Minimum 21 days clear notice or as per Rules & Regulation of the society and the quorum shall be 3/5th members of the General Body or as per Rules & Regulation.

C :Extra Ordinary Annual General Meetings
Minimum 10 days clear notice or as per Rules & Regulation of the society and the quorum shall be 3/5th members of the Governing Body or as per Rules & Regulation.

Register Of Members
The Society shall maintain at its registered office a register or its members and shall enter therein the following particulars:
  • 1 - IThe names & addresses of the members.

  • 2 - IThe date on which the member was admitted.

  • 3 - IThe date on which a member ceased to be a member.

  • 4 - IParticulars of Admission fees received.

  • 5 - IParticulars of Annual Subscription received.

  • 6 - IAny other information required from time to time.

Election
The General Body in its meeting shall elect all the office bearers after Five years or as per Rules & Regulation of the society by show or by secret ballot papers as required. The Quorum of the General Body shall be 2/3rd members of the Governing Body present or as per Rules & Regulation of the society.

Admission To Membership Of The Society:
A member shall fill the membership form to become a member of the society. The Membership shall be initially dealt with in 2 meetings of the Management Committee, One accepting it and the second confirming it, all the members of the society added/left during the year are to be discussed in the AGM also. A Register of member of the society has also to be maintained.

Calender Year:
The financial year of the Society shall start from the 1st day of April and end on the 31st day of March in the following year.

Financial Year
The accounts of the Society shall be audited at least once in a year by a qualified firm of Chartered Accountant appointed by the Governing Body.

Amendment
Any amendment in the Memorandum of Association and rules and regulation will be carried out in accordance with the section 12 & 12A of the Societies of Registration Act, 1860, as applicable to the National Capital Territory of Delhi.

Documents for amendments
  • Amended Copy of MOA & R.R of the Society in duplicate.

  • Copies of Special Resolution in duplicate (General Body).

  • Copies of Notice in duplicate.

  • Copies of Minute of Society Governing Body).

  • List of Governing Body. f. Copy of Comparative List of Amendment.

  • Copy of Election proceedings with Notice. h. Proof of Notice received.

  • Copies of application form for new membership.

  • Copies of resignation letter. k. Annual List of Governing Body (Sec.4).

  • N.O.C. from owner of the new registered office of the Society.

  • Ownership proof of new registered office of the Society. n. 'No Dispute' affidavit from President.

INCOME TAX EXEMPTION FOR NGO
TRUSTS:
Under section 11(1)(a) to (c), income derived from property held under trust is exempt if the following conditions are satisfied:
a) The property should be held under trust wholly for charitable or religious purposes.
b) Income from such property should be applied to charitable or religious purposes. (Exemption is available to the extent of such application)
c) Income should be applied in India
d) At least 85% of the income derived from property held under trust, should be applied to charitable or religious purposes in the relevant previous year in order to claim full tax exemption.

Note :


1.                         The assessee is to apply for registration in Form No. 10A in duplicate before the expiry of 1 year from the creation of trust.
2.                         Under Section 11(4) property held under trust includes a business undertaking held under trust.
3.                         Any voluntary contribution received by a trust or institution is exempt if (a) the trust is created wholly for charitable purposes and (b) contribution is not made with a specific direction that it shall form part of the corpus of the trust.
SOCIETY:
Societies are taxable in the status of AOP and different rates of tax are applicable to the income of an AOP in different circumstances:

A. Individual shares of members in AOP are not determinate:
i. Where the total income of any member of the AOP is taxable at a rate higher than the maximum marginal rate-Rate of tax is such higher rate. 
ii. Otherwise-30% 

B. Individual shares of members in AOP are determinate:
i. If total income of any member is not higher than Rs 50000/- (excluding share from AOP) and no member is taxable higher than 30%- Rate of tax on total income of AOP is the rate applicable to individuals. 
ii. If total income of any member is higher than Rs 50000/- (excluding share from AOP) and no member is taxable higher than 30%- Rate of tax is 30% 
iii. If any member is taxed higher than 30%, then (a) Tax on the portion of total income of AOP that is relatable to the share of such member is levied at such rate higher than the 30%, (b) tax on the balance total income will be 30%. 

TAX EXEMPTION FOR NOTIFIED CHARITABLE SOCIETIES U/s 10(23C) (iv) and (v)
Any income of any institution established for charitable purposes is exempt. For getting exemption under these clauses, following requirement must be completed:
i. Making an application in Form No. 56 
ii. Applying its income or accumulating it for application, wholly & exclusively to its objects;
iii. Notice of accumulation u/s 11(2) will have to be given to the assessing officer in Form No. 10




Registration of society


Registration Procedure -Society
According to section 20 of the Societies Registration Act, 1860, the following societies can be registered under the Act: ‘charitable societies, military orphan funds or societies established at the several presidencies of India, societies established for the promotion of science, literature, or the fine arts, for instruction, the diffusion of useful knowledge, the diffusion of political education, the foundation or maintenance of libraries or reading rooms for general use among the members or open to the public, or public museums and galleries of paintings and other works of art, collection of natural history, mechanical and philosophical inventions, instruments or designs.’

Legislation : Societies are registered under the Societies Registration Act, 1860, which is a federal act. In certain states, which have a charity commissioner, the society must not only be registered under the Societies Registration Act, but also, additionally, under the Bombay Public Trusts Act. 
Main Instrument : The main instrument of any society is the memorandum of association and rules and regulations (no stamp paper required), wherein the aims and objects and mode of management (of the society) should be enshrined.

Trustees : A Society needs a minimum of seven managing committee members; there is no upper limit to the number managing committee members. The Board of Management is in the form of a governing body or council or a managing or executive committee 

Application for Registration : 
Registration can be done either at the state level (i.e., in the office of the Registrar of Societies) or at the district level (in the office of the District Magistrate or the local office of the Registrar of Societies).(2)

The procedure varies from state to state. However generally the application should be submitted together with: (a) memorandum of association and rules and regulations; (b) consent letters of all the members of the managing committee; (c) authority letter duly signed by all the members of the managing committee; (d) an affidavit sworn by the president or secretary of the society on non-judicial stamp paper of Rs.20-/, together with a court fee stamp; and (e) a declaration by the members of the managing committee that the funds of the society will be used only for the purpose of furthering the aims and objects of the society. 

All the aforesaid documents which are required for the application for registration should be submitted in duplicate, together with the required registration fee. Unlike the trust deed, the memorandum of association and rules and regulations need not be executed on stamp paper.