Regarding provident fund of exempted establishment
CLARK GARDNER
(Querist) 21 November 2018
This query is : Resolved
Dear Experts,
We have a query which requires your redressal :-
A client of ours is a closely held private limited company. It was established way before independence. Hence, after independence, it registered itself with the provident fund establishment and got the status of exempted establishment for which a separate trust fund was created at that time. The Provident fund contribution gets credited in the Trust Fund Bank Account monthly.
Now many years have passed since the creation of the Trust. Now the Trust deed has been misplaced by the company and it is not available with the Bank or the Provident Fund authority also. Due to KYC compliance issues the Bank is again asking for the Trust Deed (which is not available with the company at present) and had blocked the Trust fund Bank Account.
Other than the Trust deed, other documents are available. The Trust is being audited yearly and PF Contribution is also being made. Only the Master data is missing.
My questions are :-
1. With no reference of the original trust deed being available, can we make a fresh trust deed? (Note :- only one trustee is alive now)
2. If so, how can we make a fresh trust deed so as to submit it to the bank for KYC compliance purpose?
3. Since the money is still blocked in the Bank and no PF withdrawl can be done, what are the legal remedies available?
4. How do we solve this problem?
Require your suggestions.
Thanks
Clark Gardner
Adv Shailendra Deshpande
(Expert) 22 November 2018
The exemption is not granted for Life Time, hence check the possibility of getting copy of Original trust Deed from PF Authorities as It must have been submitted to them while getting the exemption.
You need to check with Bank as well as PF Authorities about new Trust Deed. As the terms and conditions of Original Deed are not available, the terms mentioned in new Deed may raise Objections. Since PF Contributions is getting deposited on monthly basis, PF Authorities will be quite helpful.
KISHAN DUTT KALASKAR
(Expert) 22 November 2018
Dear Sir,
You may directly approach the High Court which has a wide discretionary power to direct the Bank to operate your account on some conditions.
Please mark “LIKE” if satisfied by my answer.
CLARK GARDNER
(Querist) 22 November 2018
Thanks Sir for the reply. But the problem is neither the PF dept has the copy of the original deed, nor the Bank or the company itself. The Company is almost 100 years old and it was formed much before the PF itself came into place.
How can I redraft/ draft a new Trust deed with the existing trustee right from the scratch with no reference no. to the previous deed available? Can it be an amended deed?
Dr J C Vashista
(Expert) 23 November 2018
I agree with expert advise of Mr. Shalendra M. Deshpande.
Take help from PF Commissioner.
Consult and engage a local prudent lawyer
Hemant Agarwal
(Expert) 26 December 2018
INTROSPECT ON THIS:
1. The PF & Bank Authorities do not hold "original" copies of any such deed and it would be infructuous to seek any document from such ignorant & apathetic authorities. IF it is a registered Trust, THEN the local Charity Commissioner office also can be coordinated for the needful.
2. IF you are a registered entity, File proper Application before ALL the relevant authorities, with proper affidavit, for reconstruction of the relevant document (based on all current available documentations), by giving proper justifications and reasonings, for the non-availability of the relevant document. Subject to certain parameters, this can be possible under parameters of the Public Records Act. Additionally move permission application to constitute fresh Trust Deed, which obviously will have to be reworked out at the todays rules & regulations.
3. IF there is only "ONE existing Trustee" THEN the Trust has become defunct (minimum two trustees required, for all legitimate workings and/or adjudications). Apply to the charity commissioner for permission to incorporate one more trustee at todays date, by following due procedure of law.
Keep Smiling .... Hemant Agarwal
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