By Advs.sri.harisankar v. Menon, Smt.meera V.menon

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE WEDNESDAY, THE 31ST DAY OF AUGUST 2016/9TH BHADRA, 1938 WP(C).No. 21241 of 2016 (E) ---------------------------- PETITIONER(S): --------------------- M/S. YOGAKSHEMAM LOANS LTD.,EMPLYOYEES' GROUP GRATUITY FUND TRUST, 28/449, YOGAKSHEMAM TOWERS, THIRUVAMBADY,THRISSUR-680 022, REPRESENTED BY ITS TRUSTEE, N.D. VIJAYAN. BY ADVS.SRI.HARISANKAR V. MENON, SMT.MEERA V.MENON. RESPONDENT(S): --------------------------- BY SRI.P.K.R.MENON, SENIOR COUNSEL. ADV. SRI.JOSE JOSEPH, SC. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs. APPENDIX PETITIONER'S EXHIBITS: P1 COPY OF THE TRUST DEED EXECUTED BY THE PETITIONERDATED 30/01/2015. P2 COPY OF APPLICATION FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 30/01/2015.1ST RESPONDENT DATED 30/01/2015. P3 COPY OF LETTER ISSUED BY THE 2ND RESPONDENTDATED 18/02/2016. P4 COPY OF LETTER SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DATED 26/02/2016.1ST RESPONDENT DATED 26/02/2016. P5 COPY OF ORDER ISSUED BY THE 2ND RESPONDENTDATED 21/03/2016.DATED 21/03/2016. RESPONDENT'S EXHIBITS:- NIL. //TRUE COPY// P.S. TO JUDGE A.M. SHAFFIQUE, J. ------------------------------------- W.P.(C) No.21241 of 2016 -------------------------------------- Dated this the 31[st ] day of August, 2016 JUDGMENT Petitioner has approached this Court seeking to challenge Ext.P5 issued by the Principal Commissioner of Income Tax, bywhich the petitioner is called upon to correct the mistakes inTrust Deed by preparing a fresh Deed. 2.The facts as disclosed in the writ petition wouldshow that the petitioner filed an application before the firstrespondent for availing the benefits under the Income Tax Actfor registration under Part 'C' of the Fourth Schedule. Ext.P2 isthe said application. Petitioner was heard in the matter on10.9.2015 by the second respondent and the documents werescrutinized. The second respondent by letter dated 18.2.2016sought for seeking clarification and intimated that there hadbeen certain defects in the Trust Deed produced by thepetitioner. Petitioner sought for approval for correcting themistakes on the ground that those are typing errors. It is after W.P.(C) No.21241 of 2016 -2- considering the said request, Ext.P5 came to be issued, wherein the petitioner was asked to correct the mistake bypreparing a fresh deed. According to the petitioner, the secondrespondent is not justified in issuing Ext.P5 by directing a freshdeed to be prepared. Learned counsel points out that there isappropriate provision in the Trust Deed itself by way of Clause5 to amend the Trust Deed, which alone is sufficient and thereis no necessity to prepare a fresh deed in the matter. 3.It is pointed out that if a fresh deed is prepared anda fresh application is submitted, the petitioner may not get thebenefit of the application which was submitted by Ext.P2 asearly as on 3.2.2015 and the benefits accruing from the saiddate. 4.Heard the learned counsel appearing for thepetitioner as well as the learned Standing Counsel appearingfor the respondents. Heard the learned counsel appearing for the 5.Statement has been filed by the learned StandingCounsel stating that insofar as no approval had been granted W.P.(C) No.21241 of 2016 -3- to the application submitted on 3.2.2015 and certain defects 3.It is pointed out that if a fresh deed is prepared anda fresh application is submitted, the petitioner may not get thebenefit of the application which was submitted by Ext.P2 asearly as on 3.2.2015 and the benefits accruing from the saiddate. 4.Heard the learned counsel appearing for thepetitioner as well as the learned Standing Counsel appearingfor the respondents. Heard the learned counsel appearing for the 5.Statement has been filed by the learned StandingCounsel stating that insofar as no approval had been granted W.P.(C) No.21241 of 2016 -3- to the application submitted on 3.2.2015 and certain defects were noticed, the errors can be cured only by amendments tothe original deed and it was in the said circumstances thatExt.P5 has been issued to amend the mistake by a fresh deed.The application was rejected as the deed was not in order. Itis further stated that the original deed is not valid andtherefore the petitioner was directed to amend the deed andthe effect will only be from the amended date. 6.I do not think that I should be concerned with thedate on which the approval is to be granted. The question is inwhat manner a Trust Deed can be amended. As indicated inExt.P5, there is no necessity to prepare a fresh deed. A TrustDeed can be amended taking into consideration the provisionsof the Trust Deed itself. Clause 5 of the Trust Deed givespower to the trustees to alter, vary or amend any of the trustor provision of the deed and the rules, subject to approval inwriting of the employer. Clause 5 reads as under: “5.POWER TO AMEND THE TRUST DEED ANDTHE RULES. The Trustees may at any time with the previousconcurrence and/or approval in writing of the employeralter, vary or amend any of the Trusts or provisions ofthis Deed and the Rules. PROVIDED THAT no such alteration or variationshall be inconsistent with the main objects of the trustshereby created. PROVIDED FURTHER THAT no such alteration orvariation shall be made without the prior approval of theCommissioner of Income-tax having jurisdiction over theFund.” Therefore, apparently the only restriction is that the variation shall not be inconsistent with the main objects of thetrusts and no such alteration or variation shall be madewithout the prior approval of the Commissioner of Income-taxhaving jurisdiction over the Fund. Therefore, when provisionshad been made to enable the trustees with the previousconcurrence and approval in writing of the employer to alter,vary or amend any of the Trusts or provisions of this Deed andthe Rules, petitioner can as well make such amendments andthereafter, the same can be produced before the Commissionerof Income Tax for approval. In fact, such a method has not W.P.(C) No.21241 of 2016 been adopted by the petitioner as evident from the records. Petitioner had only sent Ext.P4 which does not contain therequired amendments as specified under the Trust Deed.Therefore, it is necessary that the petitioner will have tosubmit an amendment made in accordance with the provisionsand seek approval of the Commissioner of Income Tax.However, it is clarified that a fresh deed is not required in thematter as contemplated in Ext.P5. Accordingly, this writ petition is disposed of as under: (i)Petitioner is free to alter or correct the mistakesthat had crept in the Trust Deed and thereafter comply withthe procedure prescribed in Clause 5 as stated above. (ii)If such an application is filed, it shall be open for theCommissioner of Income Tax to take appropriate decision inthe matter in accordance with law. Sd/- A.M. SHAFFIQUE JUDGE