income from property held for charitable or religious purposes ; rohit ranjan cnlu

INCOME FROM PROPERTY HELD FOR CHARITABLE OR RELIGIOUS PURPOSES 2013

1. INTRODUCTION

Income tax is an annual tax on income. The Indian Income Tax Act (Section 4) provides that in respect of the total income of the previous year of every person, income tax shall be charged for the corresponding assessment year at the rates laid down by the Finance Act for that assessment year. Section 14 of the Income tax Act further provides that for the purpose of charge of income tax and computation of total income all income shall be classified under the following heads of income:

Salaries

Income from house property

Profits and gains of business or profession.

Capital gains

Income from other sources.

The total income from all the above heads of income is calculated in accordance with the provisions of the Act as they stand on the first day of April of any assessment year. In this booklet an attempt is being made to discuss the various provisions relevant to the salaried class of taxpayers as well as pensioners and senior citizens.

An income tax is a tax levied on the income of individuals or businesses (corporations or other legal entities). Various income tax systems exist, with varying degrees of tax incidence. Income taxation can be progressive, proportional, or regressive. When the tax is levied on the income of companies, it is often called a corporate tax, corporate income tax, or profit tax. Individual

income taxes often tax the total income of the individual (with some deductions permitted), while corporate income taxes often tax net income.

My project deals with income from property held for charitable or religious purposes, in which I basically highlighted statutory provision and case laws dealing with charitable income.

Nani Ardeshir Palkiwala once said, “to tax and please someone is not can be done by

Government, but to tax and to be fair is what a Government is ought to do”.

CHANAKYA NATIONAL LAW UNIVERSITY, PATNA. 1


Statutory Provision

Charitable purpose Section 2(15)

It is defined to include relief of the poor, education, medical relief, and the advancement of any other object of general public utility:

Provided that the advancement of any other object of general public utility shall not be a charitable purpose, if it involves the carrying on of any activity in the nature of trade, commerce or business, or any activity of rendering any service in relation to any trade, commerce or business, for a cess or fee or any other consideration, irrespective of the nature of use or

application, or retention, of the income from such activity.1

2.2 Amendment made in Finance Act, 2008 & 2010

it was seen that a number of entities who were engaged in commercial activities were also claiming exemption on the ground that such activities were for the advancement of objects of general public utility in terms of the fourth limb of the definition of ‘charitable purpose’.

Therefore, section 2(15) was amended vide Finance Act, 2008 by adding a proviso which states that the ‘advancement of any other object of general public utility’ shall not be a charitable purpose—

1. if it involves the carrying on of –

any activity in the nature of trade, commerce or business; or

any activity of rendering any service in relation to any trade, commerce or business;

for a cess or fee or any other consideration, irrespective of the nature of use or application, or retention of the income from such activity.

2. if the total receipts from any such activity in the nature of trade, commerce or business, or any activity of rendering any service in relation of any trade, commerce or business exceeds Rs. 10 lacks in the previous year.

1INCOME TAX ACT



In the final analysis, however, whether the assessee has for its object ‘the advancement of any other object of general public utility’ is a question of fact. If such assessee is engaged in any activity in the nature of trade, commerce or business or renders any service in relation to trade,

commerce or business, it would not be entitled to claim that its object is charitable purpose.2 In such a case, the object of ‘general public utility’ will be only a mask or a device to hide the true purpose which is trade, commerce or business or the rendering of any service in relation to trade, commerce or business. Each case would, therefore, be decided on its own facts and no generalization is possible. Assessees, who claim that their object is ‘charitable purpose’ within the meaning of Section 2(15), would be well advised to eschew any activity which is in the nature of trade, commerce or business or the rendering of any service in relation to any trade, commerce or business.

Section 10 (23BBA)

Any income of any body or authority (whether or not a body corporate or corporation sole) established, constituted or appointed by or under any Central, State or Provincial Act which provides for the administration of any one or more of the following, that is to say, public religious or charitable trusts or endowments (including maths, temples, gurudwaras, wakfs, churches, synagogues, agiaries or other places of public religious worship) or societies for religious or charitable purposes registered as such under the Societies Registration Act, 1860 (21 of 1860), or any other law for the time being in force:

Provided that nothing in this clause shall be construed to exempt from tax the income of any trust, endowment or society referred to therein;

Section 11 [Income from property held for charitable or religious purposes.]

(1) Subject to the provisions of sections 60 to 63, the following income shall not be included in the total income of the previous year of the person in receipt of the income—

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income derived from property held under trust wholly for charitable or religious purposes, to the extent to which such income is applied to such purposes in India; and, where any such income is accumulated or set apart for application to such purposes in India, to the extent to which the income so accumulated or set apart is not in excess of 322a[fifteen per cent] of the income from such property ;

income derived from property held under trust in part only for such purposes, the trust having been created before the commencement of this Act, to the extent to which such income is applied to such purposes in India; and, where any such income is finally set apart for application to such purposes in India, to the extent to which the income so set apart is not in excess of [fifteen per cent] of the income from such property;

income derived from property held under trust—

(i) created on or after the 1st day of April, 1952, for a charitable purpose which tends to promote international welfare in which India is interested, to the extent to which such income is applied to such purposes outside India, and (ii) for charitable or religious purposes, created before the 1st day of April, 1952, to the extent to which such income is applied to such purposes outside India :

Provided that the Board, by general or special order, has directed in either case that it shall not be included in the total income of the person in receipt of such income.

(d) income in the form of voluntary contributions made with a specific direction that they shall form part of the corpus of the trust or institution.

SECTION 12 Income of trusts or institutions from contributions.

(1) Any voluntary contributions received by a trust created wholly for charitable or religious purposes or by an institution established wholly for such purposes (not being contributions made with a specific direction that they shall form part of the corpus of the trust or institution) shall for the purposes of section 11 be deemed to be income derived from property held under trust



wholly for charitable or religious purposes and the provisions of that section and section 13 shall

apply accordingly.3

(2) The value of any services, being medical or educational services, made available by any charitable or religious trust running a hospital or medical institution or an educational institution, to any person referred to in clause (a) or clause (b) or clause (c) or clause (cc) or clause (d) of subsection (3) of section 13, shall be deemed to be the income of such trust or institution derived from property held under trust wholly for charitable or religious purposes during the previous year in which such services are so provided and shall be chargeable to income-tax notwithstanding the provisions of sub-section (1) of section 11.

Exception

SECTION 13 Section 11 not to apply in certain cases.

(1) [Nothing contained in section 11 or section 12] shall operate so as to exclude from the total income of the previous year of the person in receipt thereof—

any part of the income from the property held under a trust for private religious purposes which does not enure for the benefit of the public :

in the case of a trust for charitable purposes or a charitable institution created or established after the commencement of this Act, any income thereof if the trust or institution is created or established for the benefit of any particular religious community or caste ;

in the case of a trust for charitable or religious purposes or a charitable or religious institution, any income thereof—

(i) if such trust or institution has been created or established after the commencement of this Act and under the terms of the trust or the rules governing the institution, any part of such income enures, or

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(ii) if any part of such income or any property of the trust or institution (whenever created or established) is during the previous year used or applied, directly or indirectly for the benefit of any person referred to in sub-section (3):

Provided that in the case of a trust or institution created or established before the commencement of this Act, the provisions of sub-clause (ii) shall not apply to any use or application, whether directly or indirectly, of any part of such income or any property of the trust or institution for the benefit of any person referred to in sub-section (3), if such use or application is by way of compliance with a mandatory term of the trust or a mandatory rule governing the institution :

Provided further that in the case of a trust for religious purposes or a religious institution (whenever created or established) or a trust for charitable purposes or a charitable institution created or established before the commencement of this Act, the provisions of sub-clause (ii)

shall not apply to any use or application, whether directly or indirectly,4 of any part of such income or any property of the trust or institution for the benefit of any person referred to in sub-section (3) in so far as such use or application relates to any period before the 1st day of June, 1970.

(d) in the case of a trust for charitable or religious purposes or a charitable or religious institution, any income thereof, if for any period during the previous year—

any funds of the trust or institution are invested or deposited after the 28th day of February, 1983, otherwise than in any one or more of the forms or modes specified in sub-section (5) of section 11 ; or

any funds of the trust or institution invested or deposited before the 1st day of March, 1983, otherwise than in any one or more of the forms or modes specified in sub-section (5) of section 11.

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RELEVANT CASE LAW

Shri Jagannath Temple Managing Committee v. Commissioner Of Income-Tax5

Ratio: Statutory protection under Section 10(23BBA), no part of its income can be deducted by way of payment of tax and if it is so deducted, it amounts to unauthorized deduction of its income.

Shri Jagannath Temple Managing Committee has been constituted by the State Government under the provisions of Shri Jagannath Temple Act, 1954. Lord Jagannath of Puri, since its inception has been and suit is an institution of unique national importance and attracts millions of Hindu devotees from all over the world. The temple stands as a symbol of Hindu religions traditions and an icon of faith, belief and worship for countless Hindu devotees all over the world. As such in order to properly organize its management and to formulate a scheme of running the affairs of the temple, the Act of 1955 was enacted.

Under Section 28, it is provided that there shall be constituted a Fund called "Shri Jagannath Temple Fund" which shall be vested in and be administered by the Committee.

It was contended that in view the said provision, exemption was allowed under Section 10(23BBA) of the Income-tax Act, 1961. Section 10 of the Income-tax Act provides that in computing the total income of previous year of any person, any income indicated in any of the clauses in Section 10 including Clause (23BBA) shall not be included.

Reasoning of Court

The said Section gives complete exemption in respect of any income of any body or authority whether it is a body corporate or a corporation, which is established and appointed under a Central or State Act for the administration of any public religious or charitable trusts or

endowments including maths, temples, gurdwaras, wakfs, churches etc. The activities of the petitioner are concerned with the administration of a body which is solely engaged in public religious worship or charitable purpose, and the said administration vests in a statutory Committee which was set up under the State Act.

5 AIR 2008 Ori 37, (2008) 218 CTR Ori 568



Learned Counsel for the opposite party very much relied on the provision of Section 10(23BB) in order to contend that in any event no exemption is available to the petitioner. This Court is unable to accept the aforesaid contention. Explanation of introducing the statutory provision to Section 10(23BBA), makes clear that the said exemption has been introduced in order to exempt the income of the bodies or authorities which are set up by or under any Central, State or Provincial Act and which are entrusted with the administration of public religious and charitable trusts within their jurisdiction. In the case of Navnit Lal (C) Javeri v. K.K. Sen, it has been made clear that certain institutions which are allowed exemption under Section 10 are not to file return of income.

In the instant case, it was held that, if such tax is to be deducted from the income of the petitioner then petitioner's income is reduced, whereas the petitioner's income enjoys total protection from tax deduction under Section 10(23BBA) of the Act. As the petitioner is entitled to enjoy the total statutory protection under Section 10(23BBA), no part of its income can be deducted by way of payment of tax and if it is so deducted, it amounts to unauthorized deduction of its income and against such deduction the petitioner has the locus standi to maintain this writ petition. Therefore, the aforesaid argument does not hold good. The petitioner was exempted from

payment of tax6.

6A.K. Ganguly, C.J. decided on 11 October, 2007



S.M.N. Thangaswami Chettiar, Madurai and Anr. Vs. Commissioner of Income Tax,

Madras7

Ratio: If the donations was to a Hindu temple which could benefit only the Hindu community no rebate could be claimed by the assessee.

The temple, in the instant case must be regarded as having expressed for the benefit of the Hindu community only. A charitable contribution to that temple would not, therefore, be one coming within the terms of Section 15-B of the Act.

During the year of account relative to the assessment year 1953-60, the two assessees donated certain amounts for the renovation of Sri Meenakshi Sundareswarar temple at Paramakudi. The temple is a public one and has been declared to be such under the provisions of Madras Act II of 1927. The two assessees claimed rebate of tax under Section 15-B of the Indian Income-tax Act (XI of 1922) on the amounts paid by them for the renovation of the temple. The Income-tax officer did not accept the claim. He held that a Hindu temple could not be regarded as a charitable institution and any contribution given for its renovation be one for an object of any general public utility. On appeal, the Appellate Assistant Commissioner took a different view holding that donations to a religious institution would be for a charity. He also held that the temple to which the contributions were made was open to all the communities of the public and hence conditions prescribed by Section 15-B were satisfied in the case. The Tribunal on appeal by the department held that the term charitable purpose employed in Section 15-B could not include a religious purpose. The order of the Appellate Assistant Commissioner allowing rebate was set aside.

Section 15-B of the Income Tax Act provided that in cases where there was no dedication of the property itself to the trust, an assessee, if he made a payment for the benefit of a charitable

7AIR 1966 Mad 103, (1966)ILR 1Mad243, [1965]57ITR546(Mad), (1964)1MLJ251



institution or a fund, could obtain a rebate of tax relative to the amount paid, when he was assessed to tax on his own income.

A contribution for the construction or renovation of a temple or other places of worship though it might be said to be actuated by religious motives, and in that sense one intended for religious purposes would also be one for the benefit of the public or at least a Section thereof. It benefited the people who come to it for worship. It assisted in the employment of priests and other servants in the temple who would otherwise be unemployed.

It can be legitimately assumed that when the Legislature employed the word charity or the phrase charitable purpose it had in view the prevailing concept of those words. The language of the Income Tax Act or any Act had to be construed in accordance with the concept prevalent in this country and not by following the construction of the English statutes. But English statutes mentioned repairs to churches as a charity and such repairs were considered as one beneficial to the community.

A religious purpose could also be a charitable purpose. A bequest for a religious institution or for a religious purpose, was prima facie a bequest for charitable purpose. Under the English law, a gift for advancement of religion would be included in the words charitable purpose. The concept translated in the context of the conditions prevailing in this country must mean that donation for the construction or the renovation or repairs to places of worship must be regarded as charitable donations.

There was really no distinction according to the Hindu concept between a secular and religious charity. This was particularly more so in the case of a gift for the purpose of construction or renovation of a temple; for such a gift not merely secured merit to the donor from a religious point of review; but served to benefit other worshippers therein when such a temple happened

to be a public one.8 A gift for such a temple must, therefore, benefit the public. Any contributions for repairs to places of worship will be one made for a charitable purpose. There fore the term charitable purpose was wide enough to include religious purposes as well. When

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the phrase charitable purpose was employed in Section 15-B it must have been with the intention that it would comprehend both religious as well as charitable purposes.

The effect of Section 15-B(2)(ii) was to grant relief to an assessee who made a donation for a charitable purpose, where the institution or fund receiving the payment was not expressed to be for the benefit of any particular religious community. In other words if the donations was to a Hindu temple which could benefit only the Hindu community no rebate could be claimed by the assessee.



R.B. Shreeram Religious & Charitable Trust Vs. The Commissioner of Income-Tax

Vidarbha, Nagpur9

Ratio:

Voluntary contribution from other charitable and religious trust to the assessee charitable trust should be treated as income. To get the benefit of Section 12(1), the assessee was required to show that the voluntary contribution which it had received was applicable solely for religious or charitable purposes.

Held:

Sub-section (1) of section 12 excludes from the income of a trust for charitable or religious purposes, income derived from voluntary contribution and applicable solely to charitable and religious purposes. However, under sub-section (2) such income will be deemed to be income derived from property for the purposes of Section 11 when the voluntary contribution is made by a charitable or religious institution or trust to another religious or charitable institution or trust. Sub-section (2), therefore, is an exception to sub-section (1). The language of sub-section (2) makes it clear that the subject-matter of sub-section (2) as well as sub-section (1) is the voluntary contribution itself. When such a voluntary contribution is made to a religious or charitable trust by another similar trust, then such a contribution in the hands of the receiving trust shall be deemed to be its income derived from property under section 11, and the provisions of section 11 will apply. Therefore, when sub-section (1) and (2) are read together, the phrase `income derived from voluntary contribution' in sub-section (1) refers to income in the form of voluntary contributions received by the recipient religious or charitable trust. It has no reference to the income which may later on be derived from such voluntary contributions as and when such contributions are invested, as contended by the assessee. Also when under Section 12(2) voluntary contribution from one charitable trust to another charitable trust is treated as income of the recipient, there is no reason why under Section 12(1), voluntary contribution from others to the charitable trust should not be treated as income.

9AIR 1998 SC 2419



Ahmedabad Rana Caste Association Vs. The Commissioner of Income-tax, Gujarat10

Ratio:

A group of persons may be numerous but, if the nexus between them is their personal relationship to a single propositus (the person immediately concerned) or to several propositi, they are neither the community nor a Section of the community for charitable purposes.

Among the objects and purposes of the institution were the management of the movable and immovable properties of the Rana community of the city of Ahmedabad, doing acts to improve the education in the community, to give medical help to the community etc. The Income tax Officer took the view that the objects were not charitable institution, upheld by the IT Tribunal, reason provided the beneficiaries were not the public and the class of community sought to be benefited was very vague and ill-defined and the number was also negligible. He held certain clauses among the objects to-be charitable but others were held by him not to be charitable.

The High Court decided the whole matter only on one point. It considered the question whether the purpose for which the properties were held by the assessee had the public character which the income tax law required of the charities it recognized for the purpose of exemption. Therefore, it relying n the decision of Pirmohamed Shah Saheb Roza Committee v. Commissioner of Income

tax, Gujarat11 held, it is difficult to see how this class of beneficiaries can he said to constitute a well Section of the public connected together by a common quality or characteristic.

Before hon’ble Supreme Court it was observed that, it is well settled by now and the High Court also has rightly taken that view that an object beneficial to a Section of the public is an object of general public utility. To serve a charitable purpose it is not necessary that the object should be to benefit the whole of mankind or all persons in a particular country or State. It was, however, further observed that the Section of the community sought to be benefited must be sufficiently defined and identifiable by some common quality of a public or impersonal nature.

[1971]82ITR704(SC)

[1965]58ITR360(Guj)



The hon’ble SC refers to the judgment of Lord Greene M.R. in re Compton, Powell v. Compton

and Ors.12 ,while defining a “section of public” indicated that the trust of a public character is one in which the beneficiaries do not enjoy the benefit when they receive it by virtue of their character as individuals but by virtue of their membership of a specified class the common quality uniting potential beneficiaries into the class being essentially an impersonal one. This common quality he said was “definable by reference to what each has in common with the others and that is something into which their status as individuals does not enter”.

In Oppenheim v. Tobacco Securities Trust Co. Ltd. and Ors.13 the trustees were directed to apply certain income in providing for the education of children of employees or "former employees" of a British limited company or any of its subsidiary or allied companies. It was held by the House of Lords by a majority that though the group of persons indicated was numerous, the nexus between them was employment by particular employers and accordingly the trust did not satisfy the test of public benefit requisite to establish it as charitable.

This is what Lord Simonds observed:

A group of persons may be numerous but, if the nexus between them is their personal relationship to a single propositus or to several propositi, they are neither the community nor a Section of the community for charitable purposes.

The personal element of personal relationship which takes a group out of Section of the community for charitable purposes is of the nature which is to be found in cases of the aforesaid type. Which, cannot possibly discover a similar element of personal nature in the members of the Rana community who settle in Ahmedabad and have been accepted by the Rana community of that place as members of that community. As regards the acceptance of such persons as members of the community or caste, according to custom and usage, it is well known that whenever a question arises whether a person belongs to a particular community or caste the custom or usage prevailing in that community must play a decisive and vital part. That cannot be regarded as an element which would detract from the impersonal nature of the common quality.

[1945] Ch. 123.

[1951] A.C. 297



For the reasons given above the appeals are allowed.

5. Addl. Commissioner of Income-tax Vs. South India Hire Purchase Association14

Ratio:

In order to constitute a valid charity, it is not necessary that the object should be to benefit the whole of mankind or all the persons living in a particular Country or Province or State. It is enough if the intention is to benefit a sufficiently large section of the public ascer-tainable by a common characteristic of an impersonal nature, as distinguished from specified individual.

The assessee filed a "nil" return for the assessment year 1968-69 and contended before the ITO that it was formed as an association for general public utility coming within the definition of Section 2(15) of the Act and thus was exempt from tax in accordance with the decision of the

Supreme Court in CIT v. Andhra Chamber of Commerce15.

Section 2(15) defines "charitable purpose" as including relief of the poor, education, medical relief, and the advancement of any other object of general public utility not involving the carrying on of any activity for profit. It is a matter of common knowledge that economically advanced countries have been able to develop a demand for the goods manufactured by them by promoting the system of hire purchase.

Any association can have its own formula, test or qualification for admission as members. It is not the formula, test or qualification which determines the eligibility for exemption, as otherwise,

the case of Andhra Chamber of Commerce16 would have been decided differently. Thus though

the members of the association may relate to this type of business, still the hire purchase activity as such has got a great significance in industrial and trade development.

[1979]116ITR793(Mad)

[1965]55ITR722(SC)

Ibid., p69



The activity of this association is such as to ensure for the benefit of the public in the sense that it promotes the development of trade and commerce and industry in a part of this country. Thus assessee is entitled for exemption.


4. CONCLUSION

My project deals with income from property held for charitable or religious purposes, in which I basically highlighted statutory provision and case laws dealing with charitable income.

It can be legitimately assumed that when the Legislature employed the word charity or the phrase charitable purpose it had in view the prevailing concept of those words. The language of the Income Tax Act or any Act had to be construed in accordance with the concept prevalent in this country and not by following the construction of the English statutes. But English statutes mentioned repairs to churches as a charity and such repairs were considered as one beneficial to the community.

A religious purpose could also be a charitable purpose. A bequest for a religious institution or for a religious purpose, was prima facie a bequest for charitable purpose. Under the English law, a gift for advancement of religion would be included in the words charitable purpose. The concept translated in the context of the conditions prevailing in this country must mean that donation for the construction or the renovation or repairs to places of worship must be regarded as charitable donations.

There was really no distinction according to the Hindu concept between a secular and religious charity. This was particularly more so in the case of a gift for the purpose of construction or renovation of a temple; for such a gift not merely secured merit to the donor from a religious point of review; but served to benefit other worshippers therein when such a temple happened to be a public one. A gift for such a temple must, therefore, benefit the public. Any contributions for repairs to places of worship will be one made for a charitable purpose. There fore the term charitable purpose was wide enough to include religious purposes as well. When the phrase charitable purpose was employed in Section 15-B it must have been with the intention that it would comprehend both religious as well as charitable purposes.

The effect of Section 15-B(2)(ii) was to grant relief to an assessee who made a donation for a charitable purpose, where the institution or fund receiving the payment was not expressed to be for the benefit of any particular religious community. In other words if the donations was to



a Hindu temple which could benefit only the Hindu community no rebate could be claimed by the assessee.



5. BIBLIOGRAPHY

B OOKS :

Dr. Vinod K. Singhania and Dr. Monica Singhania, “Students Guide to Income Tax”,

(40th ed., Taxmann Publication Ltd).

Dinesh Vyas, “The Law and Practice of Income Tax”, (9th ed. ,Lexis Nexis Butterworths Wadhwa Nagpur, 2008).

Dr. Vinod K. Singhania and Dr. Kapil Singhania, “Direct Taxes Law and Practice”, (1st ed., Taxmann Publication Ltd).

M M Sury, “Taxation in India - 1925 to 2007: History, Policies, Trends and Outlook”, New Century Publications.

B S Sreekantaradhya, “Structure and Reform of Taxation in India”, Deep & Deep Publications.

Andrew Lymer and Lynne Oats,” Taxation: Policy & Practice (2007/08)”, Fiscal Publications.

Suman Bery and Barry Bosworth, “ India Policy Forum 2007- 08, SAGE Publications.

T R Rustagi, “India Master Service Tax Guide 2007/08”,Eastern Book Company 2007.

Kaushik D Shah, “ Tax Controversies Under Income Tax Act”, Taxmann.

Taxmann, “ Words & Phrases Judicially Defined under Income Tax Act”, Reprint 3rd Edition , 2007, Eastern Book Company.

WEBSITES SURFED:

http://www.incometaxindia.gov.in

http://finance.indiamart.com/taxation/income_tax

http://www.tax4india.com/

http://taxguru.in/experts/


income from property held for charitable or religious purposes ; rohit ranjan cnlu

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