In India, non-profit / public charitable organisations can register as trusts, societies, or a private limited non-profit company, under section-25 companies act. The Non-profit institutions in India are
- Exist independently of the state
- Self-governed by a board of trustees or managing committee/ governing council, comprising individuals who serve in a fiduciary capacity
- Produce advantages for others, generally outside the membership of the organisation; and (d), are ‘non-profit-making’, in as much as they prohibited from distributing a monetary residual to their members.
Under Section 2 (15) of the Income Tax Act Which is applicable uniformly everywhere in India –
Describes ‘charitable view’ to include ‘relief of the poor, education, medical relief. For the advancement of any other object of general public utility.
A purpose that relates exclusively to spiritual teaching or worship not considered as charitable. Thus, in ascertaining whether the goal is public or private, one has to see if the class to benefit.
The beneficiaries to be selected, constitute a substantial body of the public. A public charitable purpose has to benefit a sufficiently large section of the society as distinguished from specified individuals.
Organisations which lack the public element – such as trusts for the benefit of workers or employees of a company. However infinite – have not been held to be charitable.
As long as the beneficiaries of the organisation include an unpredictable body of the public answering a particular description. The fact that the successors may belong the specific religious faith would not affect the organisation’s public character.
Whether a Trust, Society or Section-25 Company, the Income Tax Act gives all categories equal treatment. With exempting their income and granting 80G certificates, whereby donors to non-profit organisations may rebate against donations made. Foreign contributions to non-profits administered by FC(R)A regulation.
CAF would like to explain that this material provides only broad guidelines. It recommended that legal and or financial experts advised before taking any significant legal or financial settlement.
The Formation and Registration of a Non -Profit organisations in India
3) Section-25 Company Additional Licensing/ Registration
A public charitable trust usually floated when there is property involved, especially regarding land and structure.
Legislation: the Various States in India, The different Trusts Acts in force, which control the trust in the Provision. In the lack of a Trusts Act in a State, the general principles of the Indian Trusts Act 1882 applied.
Main Instrument: The primary instrument of any public charitable trust is the trust deed, wherein the aims and objects and mode of management. In every trust deed, the minimum and the maximum number of trustees has to be specified.
The trust deed should spell out the aims of the trust, how the Trust should manage, how other trustees may appoint or removed, etc. The trust deed should sign by both the settlor/s and trustee/s in the appearance of two witnesses. The trust deed should execute on non-judicial stamp paper, whose value would depend on the cost of the trust assets.
Trustees: The trust needs a minimum of two trustees, and there is no upper limit on the number of trustees in Trust. The Board of Management comprises the trustees.
Application for Registration:
The request for registration should make to the official having authority over the region in which the trust is sought to be listed.
After providing details (in the form) regarding designation by which the public trust shall associate like Names of trustees, mode of succession, etc. The applicant has to attach a court fee stamp of Rs.2/- to the form and pay a very nominal registration fee. That may differ from Rs.3/- to Rs.25/-, depending upon the value of the trust assets.
The application form should sign by the applicant before the Regional Officer or Superintendent of the Regional Office. The application form should submit, along with the copy of the trust deed.
Two other documents which should submit at the time of making an application for registration are affidavit and consent letter.
According to the section 20 of the Societies Registration Act, 1860. The following Societies can register under the Act. A Charitable Societies, Military Orphan Funds or Societies established at the several presidencies of India.
The societies formed for the development of science, literature, or the fine arts, for instruction, the diffusion of useful knowledge, the diffusion of political education. The establishment or support of the libraries or reading rooms for general use among the members or open to the public.
Legislation: Societies registered under the Societies Registration Act, 1860. Which is a federal act? In some of the states, in Which a Charity Commissioner. The Society is not only registered under the Societies Registration Act but also record under the Bombay Public Trusts Act in Maharastra.
Main Instrument: The primary instrument of any society is the memorandum of association and the rules and regulations. The main aims and objects and mode of management should enshrine.
Trustees: A Society requires a minimum of seven managing committee members and no upper limit to the number managing committee member. The Board member of Management is in the form of a governing body or council.
Applying for Registration: Registration can be done either at the state or District level in the Office of the Registrar of Societies.
The procedure differs from state to state. However, usually the application should submit together with the following:
- A Copy of memorandum of association and rules and regulations of Society.
- The Consent letters of all the member of the managing committee.
- Authority letter appropriately signs by all the member of the managing board.
- An affidavit was affirmed by the president or secretary of the society on non-judicial stamp paper of Rs.20-/, together with a court fee stamp.
- The members of the managing committee gave a declaration that the funds of the society will use only for advancing the aims and objects of the Society.
All the previous documents which require for the application for registration should submit in duplicate, together with the required registration fee. Unlike the trust deed, the memorandum of association and rules and regulations need not executed on stamp paper.
III. Section-25 Company
According to Section 25 (1) (a) & (b) of the Indian Companies Act 1956. Under the section-25 Company can establish for promoting commerce, art, science, religion, charity or any other useful object. Provided the profits, if any, or other income applies for promoting only the objects of the company, and no dividend is to pay to its member.
Legislation: Companies can register under section 25 of the Indian Companies Act 1956.
Main Instrument: For the section-25 company, the main instrument is a Memorandum of Association.
A section-25 Company requires a minimum of three trustees, and there is no upper limit of trustees. The Board member is in the form of a Board of directors.
Application for Registration:
- An application should make for the availability of name to the registrar of companies. That must be made in the prescribed format form no. 1A, along with the fee of Rs 500/-.
It is desirable to suggest a choice of three other names by which the company will be formed, in case the first name which proposes is not found admissible by the registrar of Society.
- Once the availability of name confirms, an application should make in writing to the regional director of the company law board. The following documents should accompany the application:
A total Three printed or typewritten copies of the memorandum and articles of the proposed company, duly signed by all the member with full name, address and occupation.
A declaration filed by the Advocate or a chartered accountant that the memorandum was drawn up in compliance. All the requirement of the Act and the rules made thereunder have duly complied with, in respect of registration or matters incidental or supplementary to it.
Total Three copies of the list of the names, addresses and occupations of the Member. As well as the member of the proposed board of directors, 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.
A statement which shows in detail of the asset and the liabilities of the Society. As of the date of the application or within seven days of applying.
An estimation annual income and expenditure of the proposed company, specifying the sources of the income and the expenses.
A statement is giving the brief description of the work if any. An association and of the work proposed to be done by after registration, in pursuance of section 25.
A statement specifying grounds on which the application made.
A declaration filed by each of the members making the application that he/she is:
- Sound Mind
- Not an Insolvent
- Not Convicted by a court for any wrongdoing and does not stand barred under section 203 the Companies Act 1956, for the appointment as a Director in Society.
3. The applicants must also furnish to the Registrar of Companies. A copy of the application and all other attach document to file before the Regional Director of the Company Law Board.
4. The applicant should also submit, within a week from the date of making the application to the regional director of the company.
Member Publish a notice in the prescribed manner at least once in a newspaper in the Local and English language of the district in which the registered office of the proposed company is to be situated. Circulating in that Districts, and at least once in an English newspaper circulating in that district.
5.The Regional Director after investigating the objections, if any. That received within 30 days from the date of publication of the notice in the newspapers. After consulting any authority, department or ministry, as he may, in his discretion, decide, determine whether the license should or should not grant.
6. The Regional Director may also direct the company to insert in its memorandum, or in its articles. In such conditions of the license as may be specified by him in this behalf.