NON PROFIT ORGANIZATION

Transcription

1 NON PROFIT ORGANIZATION In India Non Profit / Public Charitable Organizations can be registered as trusts, societies, or a private limited non profit company, under section-25 companies. Non-profit organisations in India (a) exist independently of the state; (b) are self-governed by a board of trustees or managing committee / governing council, comprising individuals who generally serve in a fiduciary capacity; (c) produce benefits for others, generally outside the membership of the organisation; and (d) are non-profit-making, in as much as they are prohibited from distributing a monetary residual to their own members. Section 2(15) of the Income Tax Act which is applicable uniformly throughout the Republic of India defines charitable purpose to include relief of the poor, education, medical relief and the advancement of any other object of general public utility. A purpose that relates exclusively to religious teaching or worship is not considered as charitable. Thus, in ascertaining whether a purpose is public or private, one has to see if the class to be benefited, or from which the beneficiaries are to be selected, constitute a substantial body of the public. A public charitable purpose has to benefit a sufficiently large section of the public as distinguished from specified individuals. Organizations which lack the public element such as trusts for the benefit of workmen or employees of a company, however numerous have not been held to be charitable. As long as the beneficiaries of the organization comprise an uncertain and fluctuating body of the public answering a particular description, the fact that the beneficiaries 1

2 may belong to a certain religious faith, or a sect of persons of a certain religious persuasion, would not affect the organization s public character. Whether a trust, society or section-25 company, the Income Tax Act gives all categories equal treatment, in terms of exempting their income and granting 80G certificates, whereby donors to non-profit organizations may claim a rebate against donations made. Foreign contributions to non-profits are governed by FC(R)A regulations and the Home Ministry. CAF would like to clarify that this material provides only broad guidelines and it is recommended that legal and or financial experts be consulted before taking any important legal or financial decision or arriving at any conclusion. Formation and Registration of a Non -Profit organizations in India I. TRUST The Indian Trusts Act, 1882 deals with the formation of Trusts in India. The Act specifies the procedure in which a Trust may be registered and operated in the India. The points enumerated herein below broadly deal with the establishment of Trusts in India- (a) A Trust is created with a document called the Trust deed. (b) A Trust is created by the Founder (author or settler) with the trust of Trustees (who are also known as the body of the Trust) (c) A Trust deed should necessarily consist of the following information: Main objects of the Trust; Operation of Trust; 2

3 Trustee information Powers of the Trustees; Rights, duties and liabilities of the Trust. After following the procedures for creation of the Trust the Trust shall be registered with the Registrar or Sub-registrar office as per the laws relevant to the specific states in India. On registration of the Trust, the Trust shall receive a copy of the registration from the Registrar after which the Trust will be required apply for a PAN card. Further, the Trust shall be required to obtain a proper Income Tax Registration from the Income Tax Department. After the Trust obtains the Income Tax Certificate, the Trust can also apply for Income Tax Exemption Certificates like Form 80 G, Form 35 AC and such other forms for Income Tax Exemption as per the objects of the trust and as per the applicable rules. The Trust may be a Public Charitable Trust or Private Trust. A Public Charitable Trust can raise funds from public to serve the social causes of the nation. The Trust should be registered with a "Registered office address of the Trust" with proper landmarks. Formation Procedure of a Trust A Trust may be declared either by will or by a non-testamentary instrument called as Trust Deed. A Trust in relation to immovable property can be created also by transfer of ownership of that property to the trustee. A Trust can be created by any of the following methods: 3

4 (a) By Trust Deed A trust declared inter vivos or by the acts of the parties is to be supported and evidenced by a non testamentary instrument in writing and signed by the author of the trust and the trustee (i.e trust deed). There is no prescribed form of a Trust Deed. Any words which indicate the intention of the author that the property of which he is the legal owner, shall beneficially be another s is sufficient. A trust in relation to an immoveable property must be supported by a Trust Deed, unless it is declared by a will, and must be registered. A Trust declared by a non testamentary instrument comes into effect from the date specified in the instrument or the date of its execution, where the date is not specified. Necessity of Trust Deed A trust can be created orally but in such cases it is necessary to prove that there was either an express declaration as to the trust or that there is evidence of language or expressions used by or facts and conduct of the owner of the property to indicate with reasonable certainty that trust was created. In order to remove ambiguity and disputes, it is always advisable to create a Trust by a written Trust Deed. Registration of Trust Deed As Trust Deed is non mandatory requirement, the registration so is not statutorily required but it is always desired. A registered Trust Deed has the following advantage: A registered Trust Deed is an official document enforceable by law. A registered deed effectuates transmutation of possession. The registration of Trust Deed, in the absence 4

5 of an intention to the contrary, is enough to convey the title to the Trust property to the trustee even if the Trust Deed is not delivered to the trustee. A conveyance of the Trust property to the trustee, under a registered deed is generally, not open to challenge, except where there is no intention to act upon the deed. (b) By Will A person may declare his intention to create a Trust in respect of his property or any part thereof by way of a will. A will according to the Indian Succession Act must be in writing and signed thereof by all testators in presence of two witnesses. A Trust declared under will, shall come into existence on the death of the person making the will. (c) By Transfer of Ownership A Trust in relation to moveable property can be formed also by mere of ownership of the property or the trustee with a direction that the property be held under Trust for the benefit of the beneficiary. The ownership of a moveable property can be transferred by physical act of handing over the possession of the property. In case where the author himself is the trustee, transfer of possession is neither necessary nor possible and mere declaration of the author that he holds the property under trust would be sufficient to constitute a trust. II. SECTION 25 COMPANY 5

6 Section 25 Companies are not for profit companies incorporated and governed by the Companies Act, 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. Thus, for incorporating a Section 25 Company, the following three conditions must be satisfied: The Company must be formed for promoting commerce, art, science, religion, charity or other useful objects, The Company should apply its profits, if any, or other income in promoting its objects, and The Company is prohibited to make payment of any dividend to its members. For a Section 25 Company, its Memorandum and Articles of Association are the main and guiding instruments. No stamping of memorandum or articles is required for a Section 25 company. Procedure for Incorporation Step 1 Form 1A - Name approval An application in E-Form 1A may be made for availability of name to the Registrar of Companies (RoC), with the prescribed fee. It can be filed electronically. Six names in preferential order are required to be proposed. Step - 2 Application to Registrar of Companies 6

7 The proposed company or any association, which is desirous of being incorporated as a company with limited liability or guarantee, without the addition of the word "Limited" or the words "Private Limited" to its name is required to make an application in writing along with the necessary documents to the Registrar of Companies for grant of a license under section 25. The said application should briefly specify the grounds under which it is made and should also be accompanied by a statement giving a brief description of the work, if any, already done by the proposed company and of the work proposed to be done by it after registration, in pursuance of section 25. It may take 3-6 weeks of time in procuring the license from the Registrar of Companies. Once the said license is obtained, it may take up to one week s time to complete the incorporation process. Step 3 Publication of Notice Within a week from the date of making the application to the Registrar of Companies, the applicants are required to publish a notice in the prescribed manner in at least two news papers. One notice should be in an English newspaper circulating in that district and in a 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. Step 4 Grant of Approval The Registrar of Companies, after considering the application, documents and 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 license should be granted or not. And if the Registrar of Companies is satisfied that the application is complete in all respects and in the best interest of the country, he can grant the license under this section with or without conditions and may also direct the 7

8 company to insert in its memorandum, or in its articles, or in both, such conditions of the license as may be specified under the Companies Act, 1956 and Rules made there under. Step 5 Other Incorporation formalities After obtaining license from the Registrar of Companies under section 25 the company shall be formed as a normal company and the other formalities of incorporation shall be complied with. Obligations Though a Section 25 Company has many advantages and enjoys many privileges yet there are some statutory obligations which are required to be complied with and taken care of by such companies. (a) A Section 25 Company has to ensure that its profits and all other incomes are utilised only for the purpose of promoting its objects and not for any other purpose. (b) It should also ensure that its profits are not distributed as dividend among its members. (c) A Section 25 Company cannot alter its objects clause in its Memorandum without seeking the written approval of Central Government. (d) If the Central Government has imposed some conditions and regulations upon the company for granting a license under section 25 then such a company is bound by such conditions and has to ensure adequate compliance with them. Where such conditions and regulations have been imposed then such conditions and regulations are required to be included in the Articles or/and Memorandum of the company as may be directed by the Government. 8

9 (e) Section 25 Company is regarded as a company within the meaning of the Income Tax Act, 1961 and as such its income is taxable according to the applicable rates similar to those applying to other companies. Privileges and Advantages A Section 25 company enjoys certain privileges which are in nature of exemptions from making certain compliances under the provisions of the Companies Act, 1956, or apply with some modifications to a Section 25 Company. (a) Limited Liability: Section 25 companies enjoy limited liability without disclosing to the public the nature of liability of its members. (b) Minimum Share Capital: Section 25 Companies have been exempted from the requirement regarding minimum share capital. As such they can be registered even if they have share capital less than the statutory minimum for Private and Public limited Companies. (c) Annual Return: A Section 25 Company without share capital is also required to file return with the Registrar but has been exempted from mentioning the particulars of the members of the company since the last AGM. (d) Time and Place of AGM: Section 25 Companies are free to determine the date, place and time of its AGM according to their convenience and feasibility the only condition being that time, place and date of such meeting should have been pre determined by the Board of Directors in accordance with directions of the company if any. (e) Notice of AGM: A Section 25 Company is allowed to hold an AGM after giving a notice of atleast 14 days to its members. 9

10 (f) Maintaining Books of Accounts: A Section 25 Company is required to maintain books of account relating to a period of only four years immediately preceding the current year. (g) Service of Copies of Certain Documents: A Section 25 company is required to send a copy of every balance sheet (including profit and loss account) and other documents required by law to be laid before a company in the General Meeting to its members, debenture holders and debenture trustees atleast 14 days before the date on which such a meeting is to be held. (h) Board Meetings: Section 25 companies are required to hold atleast one Board meeting in six months and a minimum of four meetings in a year. (i) Maintenance of Registers of Contracts: A Section 25 company is required to maintain register of contracts to which sub-sections (1) and (3) of section 297 apply. Thus they are exempted from maintaining registers of those contracts which are made in pursuance of sub-section (2) of section 297 or are covered by section 299. (j) Maintenance of Register of Directors: Section 25 companies are required to maintain Registers of their Directors, Managing Directors, Managers and Secretary in prescribed format containing specified particulars and updating the register by making changes in it as when there is some change among the Directors, Managing Directors, Managers and Secretary of the company. (k) Qualification for Secretaryship: A Section 25 Company is exempt from the provision of section 2(45) to the extent that the rules regarding the qualification of a Secretary do not apply to them. Thus, they are free to appoint any person as its Secretary whom it feels fit and proper for the same. 10

11 Post Incorporation Compliances Apart from the above mentioned privileges and obligations, a Section 25 Company needs to comply with the below mentioned requirements as per the provisions of the Companies Act:- (a) To maintain Minutes Books for all the Board Meetings, in accordance with the provisions Section 193. (b) To convene the first Annual General Meeting within 18 months from the date of Incorporation of the company and maintain the Minutes and notices of the AGM in records of the company. (c) To maintain the following registers at the registered office of the company:- Register of Investment u/s 49- Detailing the investments made by the company. Register of Charges u/s 143- Details of all charges specifically affecting the property of the company and all floating charges on the undertaking or on any property of the company giving, the particulars like:- A short description of the property charged. The amount of charge Except in case of security of bearer, the names of the persons entitled to the charge. Register of Member u/s 150- Giving the details of the members of the company. Register of Directors- Giving particulars of, Managing Directors, Managers and Secretary in prescribed format Register of attendance of board meetings. Register on Contracts, companies and firms in which the Directors are interested. Register of disclosure of member f director s interest in contract appointing manager, managing directors etc. 11

12 Register of Directors shareholding. (d) The following documents need to be filed with the Registrar of Companies on an annual basis:- Annual Return- within 60 days from the date of AGM Balance Sheet etc, u/s 220- within 30 days from the date of AGM Profit and Loss account- within 30 days from the date of AGM Compliance Certificate u/s 383 A- within 30 days from the date of AGM A Section 25 company is required to comply with all the statutory requirements as prescribed in the provisions of the Act unless it has been expressly exempted. In case there is a default in compliance with any of the provision of the Companies Act the company will be subject to penalties. Such a default can also result in revocation of the license granted by the central government under section 25. Therefore, it is important for the company to strictly comply with the statutory requirements of the Act. III. SOCIETY 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. 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 12

13 works of art, collection of natural history, mechanical and philosophical inventions, instruments or designs. The Societies shall be formed by Memorandum of Association and Registration Any seven or more persons associated for any literary, scientific, or charitable purpose, or for any such purpose as is described in section 20 of this Act, may, by subscribing their names to a memorandum of association, and filing the same with Registrar of Joint-stock Companies form themselves into a society under this Act. The Memorandum of association is the main document for a society The memorandum of association shall contain the following details: (a) the name of the society; (b) the object of the society; (c) the names, addresses, and occupations of the governors, council, directors, committee, or other governing body to whom, by the rules of the society, the management of its affairs is entrusted. A copy of the rules and regulations of the society, certified to be a correct copy by not less than three of the members of the governing body, shall be filed with association. the memorandum of 13