CR Venkataramani AICWA
The Charitable institutions play important supplementary role, apart from Govt of India/States social welfare depts., in uplifting the poor from poor economic conditions to and try to shield them from starvation. Such Charitable institutions undertake charitable activity in the form of relief of the poor, education, medical relief and advancement of any other object of general public utility. In order to encourage private sector/individual in this charitable field in the form of public charitable institutions, Govt of India allowed exemption from tax to the income of the said trusts according to sec. 11,12 and their sub-sections and 13 of Income tax Act, 1961. This helped to relieve burden of Govt to help the poor to great extent. The most important condition for a trust to be for public charitable purpose is that the beneficiary should be of general public and none of the objects of memo of association should benefit any private individuals and it should cater to all irrespective of caste, creed or religion.
The expression ‘Charitable purpose” is defined under sec.2(15) of the Act of Income Tax Act 1961 which includes:
- Relief of the poor.
- Education
- Yoga
- Medical relief.
- Preservation of environment including water sheds, forest and wild life.
- Preservation of monuments or places of historic interests and
- The advancement of any other object of general public utility.
Sl no.1 to 6 are called as limbs to sec.2(15) which will be referred later. The definition of Charitable purposes has undergone number of changes which include two provisos and amendment of such proviso.
As per the first proviso to this Sec.2(15) states 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.”
The main reason for bringing this first proviso is as under:
“Charitable purposes” includes relief of the poor, education, yoga, medical relief and any other object of general public utility. These activities are tax exempt as they should be. However some entities carrying on regular trade, comer or business or providing services in relation to any trade, commerce or business and earning incomes have sought to claim their purposes would also fall under “Charitable Purposes’. Obviously, this was not the intention of Parliament and hence I propose to amend the law to exclude the aforesaid cases. However Genuine charitable organizations will not in any way affected.”
Please note that the newly inserted proviso to sec.2(15) will not apply in respect of the following three limbs of sec.2(15) i.e. relief of the poor, education, or medical relief. Any commercial activities in connection with these three activities will come under ‘Charitable activities”.
But Relief of the poor encompasses a wide range of objects for the welfare of economically and socially disadvantaged or needy. There it will include within its ambit such as
a) relief to destitute, orphans or the handicapped.
b) disadvantaged women or children
c) small and marginal farmers
d) indigent artisans or
e) senior citizens in need of help.
Entities who have these objects will continue to be eligible for exemption even if they incidentally carry on a commercial activity subject however to conditions stipulated under sec.10(23C) or Sec.11(4A) which states that
1.the business should be incidental to attainment of the objects of entities (trusts)
2.Separate books of accounts should be maintained in respect of such business.
The above conditions are applicable to second and third limb also.
So this newly inserted proviso to sec.2(15) will apply only to entities whose purpose is “advancement of any other object of general public utility” i.e. seventh limb of sec.2(15). Hence such entities will not be eligible for exemption under Sec.11 or Sec 10(23C) of the Act if they carry commercial activities.
In order to help the small trusts which rely on profit from small trade etc,, second proviso has been added to sec. 2(15).The second proviso to this Sec.2(15) states that “the aggregate receipts from the activity or activities mentioned in proviso 1, during the previous year, do not exceed twenty per cent of the total receipts, of the trust or institution undertaking such activity or activities, of that previous year;”
At present, the litigation point is how to demarcate public charitable trust which runs profitable trade and fully uses the proceeds to public benefits. Income Tax dept likes to keep them under seventh limb in order to increase revenues for govt and tax them when the trust is helping the public at large with subsidized food and medical treatment etc. Public Trusts want themselves to be classified under first limb and seek tax exemption for the profitable trade/commerce/business it carries to supplement its activities of charity. It is natural and fair if Subsidized food/medical treatment to general public taken under ‘poor category or needy category’ as it is impossible to identify poor among masses in any outlet. If the trust serves senior citizens, destitute, orphans with free food and subsidized food for the handicapped, disadvantaged women or children, small and marginal farmers ,indigent artisans, senior citizens apart from general public, then they should come under first limb and should not be taxed for the business activities it runs. State Govt themselves are bringing these types of canteen/eating places where subsidized food is served to general public. So deciphering ‘relief to poor’ with applicability point of view by tax dept will help many trusts to use the money saved for public. Mostly rich people will not go for subsidized food and it is needy people like middle and lower class people only prefers subsidized food and medicine. So it is better to interpret the rules for the objective they are formed. Covering these types of trusts under first limb of category will help Finance Minister to keep his words that genuine charitable organizations will not in any way affected. At least Public charitable trusts whose trust deed specifies to spend all income of trade/commerce for public and not to benefit any individual or firm or any entity should not be taxed under seventh limb but exempted under first limb.
Republished with Amendments
plz give me a format of section 2(15)
Thanks a lot.
please send the format and content on the affidavit u/s 2(15) and 13 of the income tax act 1961.
“affidavit’ is an instrument to serve as evidence of ‘facts’ as affirmed therein; not of ‘law’ !
See the just posted comment; as held by the SC the point (s)of issue entail a substantial question of law and settled by SC Judgments !!
If the topic is taken to various forums and political leaders for discussion by charitable trusts will help to get some justice for social cause.
venkat
Most of trust are being used for profitable or business purpose (schools & nursing homes) and there is no revenue share to the govt. Exemptions must be scrapped.
It was a very clear and simple summary of a very complex provision. Your clarity of concept and manner of organising the concept chronologically has also helped me understand it better. Thanks a lot 🙂
According to Thesaurus dictionery, Charity means:(as a noun)
1.A foundation created to promote the public good.(not for any assistance to any.
particular individual)
2.A kindly and lenient attitude towards people.
3.An activity or gift that benefits the public at large.
4.An institution set up to provide help to the needy.
So against the normal definition of charity which covers public at large, the Charitable purpose” is defined under sec.2(15) under income tax only to cover help to poor. Thus all of a sudden many charitable institutions will fall under income tax bracket inspite of finance minister assurance that genuine trusts will not suffer any tax. When defition of ‘charity’ is changed by any section of income tax, it should cover new trusts or it should sufficent adjustment period say 5 to 10 years to adjust to new charity defiition. Then there will be questions about who are defined as poor and how trusts will judge and so many questions will come. Any how, it is better to tax exempt any trusts whose memo and articles stipulates that all income will be utilised for public only and no individual or group or religion will get specialbenefit. It is guts and good thoughts that allow many persons to put aside their personal assets to public use and they should not be penalised.
venkat
To reshare / reiterate:
The SC Judgment in re. SURAT ART SILK CLOTH MANUFACTURERS ASSOCIATION, SURAT, in which almost all issues have been fully and finally settled ; and bindingly concluded- as the PRECEDENT .
By any logic or reasoning, the newly inserted Proviso cannot be rightly regarded to provide an answer, or to have the effect, even remotely, of discrediting or overriding the cited SC Judg.
To emphasise: The above referred Proviso seeking to deny tax exemption using an arbitrarily fixed norm of ’20 percent’ of ‘total receipts’ is open to be forcefully challenged on more than one valid ground.
Suggest to search for and find instances in which courts have tried /cried a halt to rewrite /undo the settled legal position.
Most importantly, in terms of the applicable provisions, the principal criterion for qualifying for tax-exemption is ‘application” of ‘income‘ (in quantum, as computed, which is otherwise includible in ‘total income’- NOT GROSS RECEIPTS).
Further, it ought to be borne in mind, that the tax exemption is permitted not only of ‘income’ applied in the year one itself but also of income ‘accumulated or set apart for application’; and actually, applied in a later year.
Also for this reason the said Proviso, it is open to be challenged as patently ‘misconceived’ and not amenable to being enforced!?
Even otherwise, the so faulted Proviso cannot be rightly taken to have an overriding effect on the SC judgments; to be specific, that handed down in Dawoodi Bohara Jamat’s case , as well, holding that the question for adjudication is not ‘of facts’ simpliciter but entails a substantial question of law.
BaCk / Over to experts for an eminent review of the prima facie misleading opinion on hand!
Thanks. Perhaps a word on recent decision of Supreme Court in Dawoodi Bohra Jamat on Religious and Charitable Trust would have been more useful.