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assessee trust filed a petition on 25.9.2012 requesting to review the order and grant registration u/s 12AA of the IT Act. In order to finalise the case on merit, the applicant was given ample opportunity of hearing to substantiate genuineness of its creation and activities. During the course of proceedings, for consideration of its claim of review petition in course of hearing on 8.11.2012 & 7.12.2012 the applicant trust filed various supporting documentary evidences including evidencing creation of trust i.e photo copy of trust deed dated 267.2006 and registered on 2.8.2006, certified copy of minute book (dated 19.2.2006), certified copy of cash book page 1 to 6 (F.Y. 05-06), confirmation of Settlors towards contribution to corpus fund were furnished. On perusal of the said documents, it was observed that as per deed of trust dated 26.7.2006 vide page no. 5 & 6 it has been testified by the settlors, namely (1) Mr Malay Kumar Ray, (2) Mr Subhas Chandra Debnath, (3) Mr Manas Bhattacharya (4) Mr Santanu Das (5) mr Tapash Chaki (6) Mr Pranes Chakraboty & (7) Mr Prahlad Paul that "The Settlors being inter-alia , absolutely seized and possessed of the sum of Rs. 9,00,000/- (Rupees Nine Lacs only) upon AS NUCLEUS OF A STARTING FUND FOR THE SAID Trust." Thus, as per the deposition of the Settlors the movable property or sum amounting to Rs. 9,00,000/- (nine lacs only) has been settled upon the trsut. Thus, it is inferred that prior to execution of the trust deed, the settlors having contributed equally have handed over the sum of Rs. 9,00,000/- (Rupees Nine lacs only) in cash as initial 'Trust Fund' to the trustees. In order to examine the authenticity of the coming into existence of the said trust, relevant supporting documentary evidences evidencing creation of the trust was called for from the authorised representative, during hearing. The said documents were produced during course of proceedings on 7.12.2012, namely Trust Deed, Minute Book, cash book, etc certified copies thereof were also produced and kept on record. From perusal of original cash book, it is found that as against the claim of involving amount of Rs. 9,00,000/- by the settlors/trustees the actual amount available with the settlors was only RS. 62,898/- as on 26.7.2006, as per entries in the cash book. Hence, contrary to the deposition by the settlors in the Trust Deed, the trust fund i.e nucleus of a starting fund"

On careful consideration of applicant's submission it is observed that applicant has admitted that the settlors were not in possession of the trust property. i.e sum amounting to Rs 9 lacs and thus the said property was not available with the settlors for devolving upon the trust on the date of its creation / registration. Therefore no valid trust had come into existence on the date of registration of the trust. I am, therefore, of the considered opinion that registration u/s 12AA cannot be granted in this case, as a valid trust did not come into existence. In view of the above discussion, the application for review of registration u/s 12AA is accordingly rejected.

application just because it is filed beyond one year period. We also find that this order refusing registration on flimsy ground was passed beyond the period of six months from the end of the month in which application was filed by the assessee which is in gross violation of section 12AA(2) of the Act.

5.1. We find that in the second round of rectification proceedings, the Learned CIT ultimately had again rejected the registration u/s 12AA of the Act to the assessee on the ground that the initial corpus fund has not been brought in by the settlors / trustees as stated in the trust deed and accordingly held that the trust had not come into existence. We find that the settlors had pumped in Rs. 4,33,000/- as initial corpus fund which is not in dispute and had also undertook to bring in the balance sum of Rs. 4,67,000/- as per the trust deed in future. In our opinion, just because the part of the initial corpus fund has not been brought in by the settlors, it cannot be said that the trust has not come into existence. More so, the same need not be examined at the time of granting registration u/s 12AA of the Act. In this regard, we draw support from the decision of the Co-ordinate Bench of Delhi Tribunal in the case of Acharya Sewa Nivas Uttaranchal vs CIT reported in (2007) 13 SOT 54 (Delhi) (URO), wherein it was held that :-

Trust of movable property -No trust relating to movable property is valid unless declared as aforesaid, or unless the ownership of the property is transferred to the trustee. These rules do not apply where they would operate so as to effectuate a fraud.

Section 6 of Indian Trusts Act, 1882 Creation of trust.

6. Subject to the provisions of section 5, a trust is created when the author of the trust indicates with reasonable certainty by any words or acts (a) an intention on his part to create thereby a trust, (b) the purpose of the trust, (c) the beneficiary, and (d) the trust-property, and (unless the trust is declared by will or the author of the trust is himself to be the trustee) transfers the trust property to the trustee. We find that the provisions of section 5 and 6 of Indian Trusts Act, 1882 have not been violated by the assessee in the instant case in any manner. What is contemplated for creation of trust is by way of making initial investment of Rs 9 lakhs by the settlors out of which a sum of Rs. 4,33,000/- has been in the possession of the settlors on the date of execution of the trust deed. In respect of balance sum of Rs. 4,67,000/- , the settlors had undertook to invest the same into the trust in future from time to time. This action of the settlors according to us would not tamper the existence of the trust. It is not in dispute that the settlors had brought in Rs 4,33,000/- as the initial corpus fund of the trust. That itself brings the trust into existence with charitable M/s. Broadway Charitable Trust.