Professional Documents
Culture Documents
1537256454-ITA No.6291-D-2015 PDF
1537256454-ITA No.6291-D-2015 PDF
1537256454-ITA No.6291-D-2015 PDF
I.T.A. No.6291/DEL/2015
ORDER
4. Ld. CIT (E) on the perusal of the Trust deed noted that
there were five initial trustees, and all were Non-Resident
Indian, i.e., who have taken the citizenship of the foreign
country. According to ld. CIT (E) in terms of Explanation-1 to
Section 60 and Section 73 of the “The Indian Trust Act” a
non-resident cannot be a trustee of an Indian resident trust
unless he is domiciled in India. Based on this reasoning, he
has rejected the assessee’s application for grant of registration
u/s.12AA and application for exemption u/s.80G. The
relevant observation of the ld. CIT(E) reads as under:
3.1. Section 73 of the Indian Trusts Act provides that where a person
appointed as a trustee is absent for a continuous period of six
months, leaves India for a continuous period of six months, or leaves
India for the purpose of residing abroad, a new trustee may be
appointed in his place by a person nominated in the trust document
for that purpose, if any and in the absence of such person, by the
settler of the trust, if alive and competent to contract or the
surviving/continuing trustee , if any, or the retiring trustee himself
with the consent of the court. Also under the Indian exchange control
regime, it is not possible for a trust holding immovable property to
have a non-resident trustee.
Trust Act provides for who can be the trustees. The relevant
section reads as under: -
Illustrations
(a) A bequeaths certain property to B and C, his executors, as
trustees for D.B. and C Prove A’s will. This is in itself an
acceptance of the trust, and B and C hold the property in trust
for D.
(b) A transfers certain property to B in trust to sell it and to pay out
of the proceeds A’s debts. B accepts the trust and sells the
property. So far as regards B, a trust of the proceeds is created
for A’s creditors.
(c) A bequeaths a lakh of rupees to B upon certain trusts and
appoints him his executors. B serves the lakh from the general
assets and appropriates it to the specific purpose. This is an
acceptance of the trust.”
(a) the person nominated for that purpose by the instrument of trust
(if any), or
(b) if there be no such person, or no such person able and willing to
act, the author of the trust if he be alive and competent to contract,
or the surviving or continuing trustees or trustee for the time being,
or legal representative of the last surviving and continuing trustee,
or (with the consent of the Court) the retiring trustees, if they all
retire simultaneously, or (with the like consent) the last retiring
trustee.
Every such appointment shall be by writing under the hand of the
person making it.
On an appointment of a new trustee, the number of trustees may be
increased.
The Official Trustee may, with his consent and by the order of the
Court, be appointed under this section, in any case in which only
one trustee is to be appointed and such trustee is to be the sole
trustee.
The provisions of this section relative to a trustee who is dead
include the case of a person nominated trustee in a will, but dying
before the testator, and those relative to a continuing trustee
include a refusing or retiring trustee if willing to act in the execution
of the power.”
Sd/- Sd/-
[G.D. AGRAWAL] [AMIT SHUKLA]
PRESIDENT JUDICIAL MEMBER