Registration, membership, fees, accounting, income tax and audit of Rashtriya Swayamsevak Sangh

Someone has asked me a very good question by email: “I needed some clarity on how it is registered and whether it pays income tax and files ITR. Any help in this regard will be a great help.” I’ve raised this matter on twitter, FB and Quora.

MY RESEARCH TO DATE

1) RSS has a Constitution which it HIDES FROM THE PUBLIC

https://www.sabhlokcity.com/2015/04/the-constitution-of-the-rashtriya-swayamsevak-sangh/

FUNDING PROCESS, IN THE CONSTITUTION.

Kendriya Karyakari Mandal is the highest executive authority of the Sangh. It has to carry into effect the policy and programme of the RSS. It controls the finances of the Sangh and is authorised to receive from provincial units such amounts which may be required for general advancement of the Sangh. It may also may advance funds to units.

The source of collecting funds is in the form of voluntary offerings to celebrate Dakshina Day on Vyas Poornima or on any sacred day.

The original constitution came to be amended upto 1st July, 1972, which almost repeated the preamble, name, aims and objects, policy, Dhwaj, Swayamsevak, etc., but indicated a change in Art. 2, according to which in the old constitution the head office of the Sangh was at Nagpur, according to the amended constitution the Head Quarters of Akhil Bharatiya Karyakari Mandal was at Nagpur. There are also certain other changes pertaining to Sarsangh Chalak, finance and control etc., which shall be referred to and discussed with at the time when the same shall be of any relevance to the issues before us .

2) RSS is not registered, presumably doesn’t have a bank account and presumably doesn’t lodge income tax returns.

Source: A Brief Outline of the Hindutva Movement

RSS is allegedly an unincorporated association of persons. Imagine the world’s largest NGO being an unincorporated association – which operates through plethora of trusts and secretive deals. Like the hawala market in foreign exchange. The whole of RSS is a hawala operation.

it maintains no membership records [Source].

ADDENDUM. Some kind of fake news is now circulating about RSS being some kind of a registered body. These people are quite capable of creating fake documents. See:

Revealed: RSS is already registered organisation in Chandrapur

and

RSS objects to claim over its name

and

RSS and its dubious existence: Has BJP’s ideological mentor existed illegally till now?

3) RSS has a head office and presumably real property, but since it is unregistered, it is unclear how it can “own” anything.

This is presumably the Hedgewar Bhavan in Nagpur, which is allegedly the head office of the RSS.

In whose name is this building? What’s are the tax implications of this building? And any other property that the RSS own?

This is the Delhi office of the RSS. Who pays for it? Who owns it? What are the tax implications?

3) The Sangha apparently does not accept donations or sponsorships from anyone

Another unique feature of the Sangh functioning is the insistence on self-sufficiency. Every need, including financial, is fulfilled by the Swayamsevaks themselves. The Sangh does not accept donations or sponsorships from anybody. The Swayamsevaks contribute as per their ability, in the spirit of self-less sacrifice in the form of Gurudakshina, rather than any egoistic practice of philanthropy. This practice of Gurudakshina completely frees the Sangh from any kind of external pulls and pressures. [Source]

However, this is not believable.

4) RSS website does not provide any annual report, registration or tax information.

It says:

Who can become a member of RSS? Any Hindu male can become member of RSS. What is the procedure of membership of RSS? There is no formal membership procedure of RSS. Any one can join the nearest ‘Shakha’, which is the basic unit and activity of RSS. There are no fees, no registration process. Once he starts attending Shakha, he is considered as a member. How many members and how many RSS shakhas are there in Bharat? There are Shakhas in approximately 50,000 villages and towns of Bharat. As RSS does not keep a formal membership or register of Swayamsevaks, the exact number of Swayamsevaks is difficult to count.

5) This is how it collects money:

There are 6 festivals which RSS celebrate. A small ceremony is organized at each shakha. In that ceremony, (apart from certain Indian rituals like lighting the lamp, offering flowers), 2-3 lectures are delivered by some senior sangh-members, sangh-prarthna is recited etc. In that ceremony, each swayamsevak puts some of his own money with his name in an envelope (Rs. 100, 200, 1000 etc) depending upon his economic situation & ‘shraddha’ & attribute it to the ‘Dhwaj’ which is the ultimate GURU in RSS & which is a symbol of sacrifice, victory & strength. The total money collected is counted & record is kept. Half of that money is spend in ‘Sangh-Karya‘ of that area or ‘Prant‘. The rest half goes to Nagpur, the head office and used for works all over India [Source]

Clearly, the Nagpur head office is flush with money. How is the money carried? By cash? Wired into any bank account? Whose account? MONEY THAT DOESN’T LEAVE A TRACE! THIS IS AS SHADY AS IT GETS.

Does RSS declare any income tax returns? NO. This is surely something worth inquiring into. It is possible that the same holds for VHP, NSUI, ABVP. Why is the press so quiet about this basic issue?

RSS and the Income Tax Department

Matter No. 1: The law permits donations from swyamsevaks to be exempt from income tax.

My position: I’m happy with the income tax exemption for these donations, but not clear why these are not reported in an audited statement.

ITAT Patna case (http://indiankanoon.org/doc/ 366633/)

Patna High Court

Commissioner Of Income-Tax vs Rastriya Swayam Sevak Sangh on 22 February, 1994

Equivalent citations: 1994 (42) BLJR 969, 1994 207 ITR 479 Patna

Bench: K Paripoornan, N K Sinha

JUDGMENT

1. These are connected cases. The Commissioner of Income-tax, Bihar-I, Patna, is the applicant in all cases. The same assessee is the respondent in all the cases. The matter relates to the assessment years 1967-68 to 1975-76. The Income-tax Appellate Tribunal in R. A. Nos. 1 to 9 (Patna) of 1981 has referred the following common questions of law for the decision of this court in the above cases. The questions referred to this court are:

“(i) Whether, on the facts and in the circumstances of the case, the principle of mutuality exists in the R.S.S. ?

(ii) Whether, on the facts and in the circumstances of the case, the amount received from members and devotees can be taken to be Gurudakshina and held to be exempt ?

2. We heard counsel for the Revenue as also counsel for the respondent-assessee. The facts of this case lie in a narrow campass. The assessments were made on the respondent-assessee in the status of an association of persons for the years 1967-68 to 1975-76. The assessments were of a protective nature. The assessee’s income is by way of receipt from members as Gurudakshina. It is also seen that Gurudakshina is also received from devotees. The Income-tax Officer held that Gurudakshina received by the assessee is taxable under the provisions of the Income-tax Act. He computed the income of the assessee in the following figures for the respective assessment years 1967-68 to 1975-76: Rs. 48,000, Rs. 71,000, Rs. 50,000, Rs. 20,000, Rs. 25,000, Rs. 20,000, Rs. 15,000, Rs. 20,000 and Rs. 15,000.

3. The assessment orders are annexures A-1 to A-9. In appeal, it was noticed that R.S.S. has its head office at Nagpur and hence assessments should be on the respondent-assessee only as a protective measure. The Appellate Assistant Commissioner further held that the Gurudakshina receipts from members of the organisation are exempt on the ground of mutuality. In coming to the said conclusion, he placed reliance on instructions of the Central Board of Direct Taxes contained in letter No. 290/26/ M.O./I.M. (Inv.), dated December 19, 1978. On the above basis the assessments were cancelled.

The orders passed by the Appellate Assistant Commissioner dated December 4, 1979, and March 19, 1980, are annexures B-1 and B-2.

The Revenue took up the matter in appeals before the Income-tax Appellate Tribunal, Patna Bench.

The Income-tax Appellate Tribunal heard and disposed of the appeals for all the nine years by a common order dated October 8, 1980, evidenced by annexure C-2.

Before the Income-tax Appellate Tribunal, it was common ground that proceedings arising from the assessee’s Kendriya Karjayalaya, Nagpur, was the subject-matter of the decision by the Income-tax Appellate Tribunal, Bombay Bench, in I.T.As. Nos. 202, 422 and 421 (Nag) of 1975-76 and I.T.As. Nos. 315 and 355 (Nag) of 1975-76 and same issues arose for decision therein. Therefore, in these cases, the Patna Bench of the Income-tax Appellate Tribunal referred to the decision rendered by the Bombay Bench of the Income-tax Appellate Tribunal in the aforesaid cases dated July 26, 1980, annexure C-1, and also placed reliance on the communication of the Central Board of Direct Taxes evidenced by No. 290/26/M.O./I.M. (Inv.), dated December 19, 1978, and concluded thus in para 9 of its order dated October 8, 1980: “Gurudakshina from Swayamsevaks on the ground of mutuality cannot be subjected to tax in the hands of the assessee. …”

4. Following, the aforesaid conclusion of the Tribunal, Bombay Bench, the finding of/the Appellate Assistant Commissioner was maintained by the Patna Bench and the appeals preferred before it were dismissed. It is thereafter on motion by the Revenue under Section 256(1) of the Income-tax, the questions of law formulated hereinabove have been referred by the Income-tax Appellate Tribunal, Patna Bench, for the decision of this court.

5. The main complaint by counsel for the Revenue before us was that in these cases, the Income-tax Appellate Tribunal, Patna Bench, failed to consider the question that arose before it in detail and failed to render appropriate findings as to whether Gurudakshina received by the respondent-assessee from its members is exempt from income-tax. Counsel for the Revenue further submitted that the finding of the Appellate Assistant Commissioner was only to the effect that Gurudakshina received from the members of the organisation was exempt on the ground of mutuality and the Appellate Assistant Commissioner did not find that Dakshina and donation received from others is equally exempt.

On the other hand, counsel for the assessee submitted that it was common ground before the Tribunal that the question that arose before it was similar to the one that was considered by the Income-tax Appellate Tribunal, Bombay Bench, in I.T.As. Nos. 202, 422 and 421 (Nag) of 1975-76 and I.T.As. Nos. 315 and 355 (Nag) of 1975-76. These cases were similar to the one that arose for consideration before the Bombay Bench.

It was on this basis that the Patna Bench of the Income-tax Appellate Tribunal referred to the decision of the Bombay Bench and the findings and conclusions arrived at therein. The decision of the Income-tax Appellate Tribunal, Bombay Bench, was also referred to by the Appellate Assistant Commissioner in the present cases. The Bombay Bench of the Tribunal had occasion to deal with in depth and consider the constitution of the organisation, affidavits filed by the parties and also the view expressed by the Central Board of Direct Taxes in their letter dated December 19, 1978, and found that the Gurudakshina received by the respondent from its members is exempt from tax on the ground of mutuality. It was argued that in so adopting the said conclusion of the Bombay Bench of the Tribunal, the Patna Bench of the Income-tax Appellate Tribunal did not commit any error of law or jurisdiction.

6. We are clear in our mind that the Revenue as well as the assessee proceeded on a common ground before the Tribunal to the effect that the matter that arose for consideration before the Appellate Tribunal, Patna Bench, was similar in content and scope to the one that arose before the Bombay Bench of the Appellate Tribunal. It was so dealt with by the Patna Bench. The decision of the Bombay Bench of the Tribunal was followed. The said decision of the Bombay Bench is based on an array of materials–constitution of the organisation, affidavits of parties and the Central Board of Direct Taxes letter dated December 19, 1978. The conclusion so reached is based on material and was not shown to be wrong. The communication of the Central Board of Direct Taxes evidenced by letter No. F. 290/26/ 70/(Inv.), dated December 19, 1978, quoted by the Income-tax Appellate Tribunal, Bombay Bench, at paragraph 34 of its appellate order (page 89 of the paper book of T. C. No. 42 of 1982) is relevant. It is not permissible for the Revenue in the light of the above communication of the Central Board of Direct Taxes to contend that Gurudakshina received by the respondent-assessee is liable to income-tax . We hold so.

It is categorically stated in the aforesaid communication of the Central Board of Direct taxes that Gurudakshina received from the members of the organisation will be exempt on the ground of mutuality. The said letter affords administrative relief to the assessee.

The existence of such a communication of the Central Board of Direct Taxes, its contents, and reliance placed thereon were never disputed before the Appellate Tribunal or before us. The said communication of the Central Board of Direct Taxes is quoted at pages 89-90 of the paper book in T. C. No. 42 of 1982. In the light of the definite stand taken by the Central Board of Direct Taxes in its communication dated December 19, 1978, Gurudakshina received by the respondent-assessee from its members is exempt from tax on the principle of mutuality.

7. The relief so afforded should be given effect to. The communication of the Central Board of Direct Taxes was with reference to the Gurudakshina received by the very same assessee and, in our opinion, the said communication of the Central Board of Direct Taxes clinches the issue. Both the Bombay Bench and the Patna Bench of the Appellate Tribunal have relied on this communication of the Central Board of Direct Taxes. It cannot be said that reliance so placed by the Appellate Tribunal is wrong or unreasonable. We, therefore, hold that, on the basis of the communication of the Central Board of Direct Taxes, the decision of the Appellate Tribunal is justified in law.

8. In the light of our above reasoning and conclusion, we answer question No. (i) referred to us in the affirmative, against the Revenue and in favour of the assessee. We reframe question No. (ii) by deleting the word “devotees” occurring therein and reframe the question in the following manner. Whether, on the facts and in the circumstances of the case, the amounts received from members can be taken to be Gurudakshina and held to be exempt ? We answer question No. (ii) so reframed in the affirmative, in favour of the assessee and against the Revenue.

9. The questions referred to the above tax cases are answered as above. There will be no order as to costs.

10. The Registrar of this court shall send a copy of this judgment under his signature and seal of this court to the Income-tax Appellate Tribunal, Patna Bench.

Matter No. 2: Donations from those other than swyamsevaks

Source: https://www. taxmanagementindia.com/tax- updates/?p=56587

Income Tax Department’s claim : RSS contested the department’s claim that in the returns that RSS files , any donation it received from sources other then swayamsevaks be treated as profit. When the department was required to file a return under s. 139(2) for assessment year 1970-71, RSS lodged a Writ Petition in the High Court of Bombay at Nagpur challenging the validity of notice.

The High Court, after hearing both the parties passed a consent order on 15 February 1972 which provided as under:

1. The ITO, Nagpur will proceed with the assessment in regard to the assessment years 1970-71 and 1962-63 under the impugned notices including the decision on the question of the status of the petitioners.

2. If the decision of the ITO, Nagpur is that the petitioners are a taxable entity and the A.O. raised the demand, the ITO, Nagpur agree not to treat the petitioner as in default till the appeal before the AAC is disposed of.

3. This does not bind the petitioners to go only in appeal, but is without prejudice to the rights of the petitioners to choose their remedy. If the petitioners do not file the appeal, the discretion of the ITO in treating the petitioners in default is left undisturbed.

4. In regard to the notices issued at other place than Nagpur in the country, the Central Board of Revenue will advise the concerned ITOs, that they will not proceed with the assessments till the decision of the ITO, Nagpur under the above mentioned two impugned notices.

5. Notices where the assessment years are getting time barred may be issued by the Department but not proceeded with unless the assessments are also getting time barred.

Department taken to the Tribunal after this judgement

After the said order of the High Court in the assessee’s Writ, the Department proceeded with the assessment for assessment yr. 1970-71 . This was not only disputed by the assessee in its first appeal before the AAC, but before the Tribunal.

The Tribunal [in ITA No. 669(Nag)/1972-73 for assessment years 1970-71 dated 29 November 1974] set aside the order of the AAC and restored the appeal for deciding it afresh in accordance with the law on the following issues:

(1) Whether, on the facts and in the circumstances of the case, and the evidence on record, the ITO was justified in holding that the RSS had received Gurudakshina from persons other than Swayamsevaks?

(2) If the answer to question No.1 in the affirmative, then whether on the facts and in the circumstances of the case and the evidence on record, it can be held that Gurudakshina and other receipts received by the several branches could constitute the income of the assessee?

(3) If the answer to the question No. 1 is in affirmative, whether on the facts and in the circumstances of the case, and the evidences on record, the ITO was justified in estimating the Gurudakshina from persons other than the Swayamsevaks at Rs. 10 lakhs? If not what is the quantum of such amount to be estimated in the present case?

(4) If the answer to question No.3 is in the affirmative, whether on the facts and in the circumstances of the case and the material on record, the ITO was justified in treating the said receipt as the income?

(5) If the answer to question No.3 is in the affirmative, whether the said income is exempt from inclusion in the taxable income, if any, of the RSS on the ground that

(a) it is of a casual and non-recurring nature;

(b) the source thereof being held under a legal obligation to utilise it for the purpose of the Sangh, which are educational/ charitable purpose as defined in s. 2(15) of the Act?

(6) If the answer(s) to question No. 1 and/or 4 is are in the negative and/or the answer to question No. 5 is in the affirmative, whether on the facts and in the circumstances of the case and the material on record, there is any other taxable income of the RSS?

(7) Whether on the facts and in the circumstances of the case and the material on record, the ITO was justified in taxing the RSS in the status of a BOI?

RSS’s appeal

For the sake of convenience now we first take up RSS’s appeal for assessment years 1971-72, because out of all the 3 years under consideration before us the order of the AAC which can be termed as a speaking order is passed for this year and it is on the basis of this order that the matter pertaining to 1972-73 and 1962-63 are disposed of. ITA No. 202 for assessment year 1971-72.

The ITO had issued notice under s. 139(2), which was served on the assessee on 21st Feb., 1972, after extension of time was applied for by the assessee till 30th June, 1972, the return was filed on 17th Jan., 1973 in which income returned was Nil . The said return was accompanied by an audited statement of accounts and Balance-sheet as on 30th Oct., 1970. In the said return against the status the assessee had placed the words Does not fall in any category and on the top of it was written Under protest and without prejudice to the right and contention that RSS does not come under the purview of the IT Act, 1961.

RSS’s claims

In course of assessment proceedings the assessee contended that:

(1) Shakhas are independent units in themselves;

(2) Gurudakshina received by them does not constitute income;

(3) there cannot be a question of clubbing a honest existing income in the case of this assessee; and

(4) It is specifically stated that Shakhas do not receive Gurudakshina from anyone other than Swayamsevaks (i.e., non-members).

The ITO rejected all contentions and came to a conclusion that RSS is one as a whole and according to him income earned by Shakha, Zilla office and Prant office were taxable in the hands of the organisation which he was assessing through its central office . He also observed that the assessee failed to prove that the Gurudakshina is exempt under any clause of s.10 and he, therefore, assessed the entire Gurudakshina receipts both from members and non-members as income of the assessee. He treated the assessee as a taxable entity with the status of BOI.

Regarding the quantum he resorted to ex parte proceedings estimating property income at Rs. 5,442, interest income at Rs. 50,000 and income from other sources in respect of contributions estimated at Rs. 20 lakhs, as he had only details of some branches, according to which the property income was Nil , interest income was of Rs. 47,284 and Gurudakshina was Rs. 5,59,654.

RSS’s claims to refute the ITO

When this action of the ITO was carried by the assessee in first appeal before the AAC as in earlier years, as before the ITO the assessee:

a) reiterated that Shakhas are independent units in themselves [Sanjeev: this surely is the most absurd claim for an organisation that has a SINGLE constitution], the receipts by way of Gurudakshina being purely voluntary contribution and casual in nature were not taxable and there did not arise question of clubbing the so called income of various Shakhas in the hands of the assessee and that Gurudakshina was received from Swayamsevaks only. [Sanjeev: This argument is TOTALLY untenable]

b) DENIAL : The assessee attached the observations of the ITO made in para 5 of his order to the effect that RSS organisation throughout the country was controlled by Kendriya Artha Vibhag and there was hierarchy, etc . and submitted that the said observations of the ITO are far from true [Sanjeev: well, that’s what their Constitution says].

c) DENIAL : The assessee also denied the observation made by the ITO in para 8 of the assessment order that the Central Office could call funds from branches, etc .

d) It was also pointed out by the assessee that since different ITOs all over the country had already made assessments on Prants and Zilla Shakhas, etc ., this by itself spoke that the Revenue had accepted the contention of the assessee that these are all different units. [Sanjeev: this is a very strange situation. How can this be going on? Is the Income Tax Department a bunch of fools?]

e) The assessee also submitted that as there is neither any list of Shakhas nor any statement sent by the different Shakhas to the assessee , it was not possible to give any details of receipts and expenditure of Shakhas all over India. [Sanjeev: it is amazing that this organisation doesn’t have a list of its shakhas]

In short the assessee attacked the finding of the ITO that it was assessable to income-tax in the status of BOI and receipts by way of voluntary contributions called as Gurudakshina constituted the income of the assessee and that all Shakhas and branches all over India were assessable as one unit only.

ACC’s revised framing of issues

When the attention of the AAC was drawn to the fact by the assessee that all the issues under consideration had been before the AAC earlier in course of asst. yr. 1970-71 and as the said order came to be set aside by the Tribunal [in ITA No. 669 (Nag)/1972-73 dt. 29th Nov., 1974] as per which the matter was resorted back to the file of the AAC on 7 points (which we have extracted and placed above in para 6 of this order), the AAC for the sake of convenience reframed the first question as he observed in para 21 of his order that ITO had dealt with the assessment year under consideration in a matter which is different from earlier asst. yr. 1970-71.

The AAC reframed the first question in a different way then framed by the Tribunal in the following language: Whether, on the facts and in the circumstances of the case and the evidence on record, the ITO was justified in holding that the RSS had received Gurudakshina both at Shakha level and at head office level from both Sawayamsevaks and non-Sawayamsevaks?

The AAC dealt with this issue in paras 22 and 23 of his order and concluded this issue in para 24 in the following words: In this case it has been established that the appellant is receiving amounts known as Gurudakshina and the same can be only in the nature of income . The appellant has failed to show that the word Gurudakshina means something else. Economic upliftment and political revival cannot be considered as items of charitable nature .

The AAC dealt with the second question as per the Tribunal’s order for asst. yr. 1970-71, whether Gurudakshina and other receipts receive

5) From: RASHTRIYA SWAYAM SEWAK SANGH. Versus INCOME TAX OFFICER, etc.

This “elusive and shadowy” nature of RSS dates all the way back to the 1950s when this organization did not have any written records of its members or a Constitution – and this “technicality” saved it from prosecution for Gandhi’s assassination. The ban imposed by Patel was later lifted when it did adopt some sort of written Constitution and a promise to stay away from politics, which obviously did not last because the Jana Sangh was founded in 1951 (and was the predecessor of the BJP).

It was in 1949 for the first time that a Constitution of RSS was placed in black and white. In the said constitution the preamble just preceding the adoption of the constitution read as under:

[Sanjeev: I have verified that the RSS did create a constitution in 1949, which was updated at least up to 2000. Question: How can an organisation have a Constitution and NOT a bank account or audit or reporting system?]

After the above quoted preamble, the organisation was named as Rashtriya Swayamsevak Sangh, the head office of which was at Nagpur and the aims and objects of the Sangh as shown in the first written above referred constitution were to weld together the diverse groups within the Hindu Samraj and to revitalize and rejuvenate the same on the basis of its Dharma and Sanskriti, that it may achieve an all-sided development of the Bharatvarsha.

Bhagwa-Dhwaj the age-old symbol of Hindu culture was adopted as its flag and the policy of RSS was placed in Art.4 of the said constitution.

Regarding its membership i.e., in other words to become a Swayamsevak one had to be a male Hindu of 18 years or more, who is subscribed to the Rules and Regulations of the Sangh takes the following pledge: Sarvashaktiman Shri Parameshwar tatha apne Purvajon ka smaran kar Main Pratigya Karta hun ki apne Pavitra Hindu Dharma, Hindu Sanskriti tatha Hindu Samaj ki Abhivradhi kar Bharatvarsh ki Sarvangeen Unnatti karne ke liye Main Rashtriya Swayamsevak Sangh ka Ghatak bana hun. Sangh ka karya main Pramanikta, Niswarth Budhi tatha Tan, Man, Dhan poorvak Karunga aur is Vrata ka main Aajannma Palan Karunga. Bharat Mata Ki Jai.

There were other details indicated in the said constitution pertaining to authorities, control, administrations , elections, pratinidhi sabha, pracharaks of Sangh etc.

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