Mentoassociates.com – Legal Articles

Section 25 of the Companies Act, 1956, provides for formation of companies for the purpose of promoting Commerce, Art, Religion, Science, Charity and other useful objects. Many people form charitable organisations in the form of companies also. In the case of companies, the statutory compliance is much more than compared to trust or a society. Hence the chances of mismanagement are less. Normally chambers of commerce and trade bodies are registered under this section. This is not a very popular form of charitable organization for common people.

Section 25 company is more stable than a society but less rigid than a trust Amendments to the objects can be made by invoking the provisions of the Companies Act, 1956.

People form a society when the members are more and the control and management is broader based. Here it is comparatively easy to change the powers and objects of the society. The managing committee is normally elected and hence a society is more democratic in its form and spirit.

The main disadvantage of the society is that it is more decentralised and more likely to have lack of stability. There is likelihood that the management may fall into the hands of undesirable persons. However the Registrars under the societies Act have sufficient powers to effectively control the society. The statutory compliances and governmental interference is more compared to a trust and less compared to a society.

The process of registering a trust is comparatively easier than registering a society or a company under section 25 of the Companies Act, 1956. The control of the trust is in the hands of a few trustees who are normally nominated and not elected. Further the number of trustees is limited. The founder of the trust, if he wishes can become a trustee also. A trust is more suited where a few people can contribute more money for charitable purposes and want a tight control on the organisation. The statutory regulations and interference is less compared to a society or a company.

The disadvantage of the trust is that the trustees cannot change easily the objects of the trust or their powers; it can be done only with the approval of the court. Further there is less democratic spirit in a trust and the same is more centralised.

Organizations which have charity as their main motto and which work for the welfare of the society at large, without the motive of profit are known as Non Profit  organizations (NPO). In India people have a tendency to call them as NGO (Non Government Organizations), which terminology is not correct in the strict sense, because every non government organization may not be a non profit organization.
Trusts, societies and section 25 companies are the most common forms of NPOs in India. NPOs are entitled for various benefits under the Income Tax Act. Even without registering as an NPO, people can engage in charitable activities, but they register as NPOs to gain the IT benefits. Tax benefits are available to the organization as well as to those who donate to the organization. For this special permission need to be obtain from the Income Tax authorities after the registration of NPO. To obtain tax benefits, it is a condition precedent that the benefits of the NPO shall not be restricted to any particular cast, class or creed but open to all.
Trusts are registered under the Registration Act, Societies under the respective Societies Registration Acts of various states and Section 25 companies under the Companies Act, 1956.For each of these registrations, a deed need to be drafted explaining the main objectives and mode of working of the organization.
There is an increasing trend among the general public to establish NPOs and indulge in profit generating activities, at the same time deriving IT benefits. However, sooner or later the long arms of law will reach them.

The Karnataka Societies Registration Act, 1960 and Rules, 1961 deals with the procedure for the registration of societies and associations in Karnataka.

To register a society or association, there should be a minimum number of seven members, all of whom shall be above the age of eighteen years. The society or the Association shall prepare a Memorandum of Association and also the Rules and Regulations and submit before the Registrar of Societies to register themselves as a society. The name of at least seven members shall be subscribed to the Memorandum of Association.

The Memorandum of Association shall state the name of the society, the objects of the society, the names and addresses and occupations of the members of the governing body, the place at which the registered office of the society is to be situated etc.

The Rules and Regulations shall contain provisions relating to admission of members, general meetings, voting of members etc. The memorandum as well as the Rules and Regulations shall be signed by each subscriber of the Memorandum of Association, in the presence of at least one witness.

The Registrar of Societies may refuse to register the name of a society if, it is identical with or too nearly resembles, the name by which a society in existence has been previously registered. By any reason if the registrar refuses to register a society, an appeal lies against such order to the Karnataka Appellate Tribunal within 60 days of the said order.