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Income Tax Officer (E) , Trust Ward-II, Delhi Versus Suvasini Charitable Trust

2016 (4) TMI 1003 - ITAT DELHI

Object of Trust - scope of section 2(15) of the Income Tax Act – Addition on account of surplus generated from “Premwati Cafeteria” - Held that:- The pre-dominant objects and the vision make it clear that the main object of the assessee is to provide medical relief, impart education to the society at large and relief to the poor. Hence, the proviso to Section 2(15) does not apply to the facts of the assessee’s case. In our opinion, the proviso is an exception to the main section, the definition .....

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of the view that the sales of the Cafeteria ‘Premwati’ were in the nature of commercial receipts in the course of advancement of any other objects of public utility as laid down in the proviso to Section 2(15) of the Act and not were the receipts within the meaning of Section 11(4A) of the Act. However, nothing is brought on record to substantiate that the income generated from the said Cafeteria was not utilized by the assessee for achievement of the main objects i.e. to provide medical relief .....

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is established that the income earned by the assessee trust was not used for attainment of the main object or it was used elsewhere. Therefore, the addition made by the AO was not justified and the ld. CIT(A) rightly deleted the same. See Divya Yog Mandir Trust Vs JCIT [2013 (10) TMI 211 - ITAT DELHI ] - Decided in favour of assessee. - ITA No. 4330/Del/2012 - Dated:- 17-3-2016 - Sh. N. K. Saini, AM And Sh. A. T. Varkey, JM For The Assessee : Sh. K. P. Garg, CA For The Revenue : Smt. Anima Barnw .....

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d in the circumstances of the case and in law, the Ld. CIT(A) has failed to appreciate the amended provisions of section 2(15) of the Act, i.e. advancement of any other object of general public utility shall not be a charitable if it involves the carrying on of rendering any service in relation of any trade, commerce or business for a cess or fee or any other consideration irrespective of the nature of use or applicable or retention of the income from such activity. 3. On the facts and in the ci .....

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4. Facts of the case in brief are that the assessee Trust is registered u/s 12A of the Income Tax Act, 1961 (hereinafter referred to as the Act) vide order dated 28.07.2006 of DIT(E), Delhi and also approved u/s 80G(5)(vi) of the Act vide order dated 27.09.2006. The assessee filed the return of income on 29.09.2009 declaring total income at Nil after claiming application of income as per the provisions of Section 11 of the Act. The said return was processed u/s 143(1) of the Act. Later on, the c .....

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ust Deed has duly been registered with the Income-tax department. While granting initial registration u/s. 12AA of the Income-tax Act, 1961, we were specifically asked by the department to introduce the following specific condition in the rules:- Rule (18) - The Trust may establish or carry out Cafeteria "Premwati" at Swaminarayan Akshardham Complex, NH-24, Opposite Nlzamuddin Bridge, Akshardham Setu , Delhi-110092 to provide hygienic vegetarian dishes made without eggs/garlic/onion to .....

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not in the nature of commercial receipts in the course of advancement of any other object of public utility as laid down in the proviso to Sec.2(15), but these are receipts within the meaning of Sec. 11(4A), as specifically provided in the conditions of registration, for the specific purpose of utilization of the net surplus for any of the first three limbs of Sec.2(15) as such this proviso does not apply to these receipts- During this year the entire income has been spent on "medical relie .....

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incidental to the attainment of objects shall be maintained in compliance to Sec. 11 (4A) of the I.T, Act,1961. 6. We would further like to submit that Sec. 11 (4A) is still very much part of Sec. 11 to 13 of the Income-tax Act (provisions governing the taxation of trust) which authorizes the trust to apply the income received from the business held under trust for the objects of the trust. So the above distinction of law is very much borne out from the provisions of Sec. 11 (4A) i.e. the object .....

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been omitted and/or deleted, which has not been done. Thus it would be highly impudent to conclude, by any arbitrary or conjectural interpretation that the proviso having been inserted in the definition clause takes away the independent section 11 or any benefit or exemption mentioned therein, more specifically, as specified in sub-section (4A). 5. The AO after considering the submissions of the assessee observed that the assessee had tried to call its activity of its restaurant as activities i .....

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ther 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 AO was of the view that the proviso to Section 2(15) of the Act is applicable to those charitable .....

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vities within the amended provisions to Section 2(15) of the Act. He referred to the following case laws: Jalandhar Development Authority Vs CIT (ITAT Amritsar) Indian Chamber of Commerce Vs CIT (1975) CIT(SC) 271 Punjab Urban Planning and Development Authority (ITAT Chandigarh) Small Medium Exporter Vs DIT(E) Delhi (ITAT Delhi) Sri Sathya Sai Nigamagamam Trust, in ITA No.247/Hyd/2009 (ITAT Hyderabad) 6. The AO observed that the assessee was carrying on business by way of running of a restaurant .....

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issioner (2006) EWHC 2383 (Ch) House of Lords in Town Investment Ltd. and Others Vs Department of the Environment (197) 1 All ER 813 7. The AO pointed out that the assessee had declared sales of ₹ 6.75 crores at restaurant run by it which is against the spirit of amended provisions of Section 2(15) of the Act. Hence, the benefit of Section 11/12 of the Act is not allowed to the assessee. The AO assessed the income of the assessee at ₹ 46,43,003/- which was the surplus declared during .....

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nies his liability to tax and interest as determined and computed by the learned assessing officer and the manner in which it has been so determined or computed. The assessment made is arbitrary, contrary to law and without jurisdiction and without application of mind, against the principle of natural justice. 1A: Without prejudice to the above ground of appeal on merits of the case, the order and assumption of jurisdiction under the amended provisions of S. 2(15) is contrary to law and on this .....

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t in 2005 and assessments have been made up to AY 2008-09 in accordance with the objects of the trust being followed since inception, i.e. relief to the poor and exemption granted u/s. 11(a) accepting the application of the income having been applied to the objects of the trust, i.e. Medical Relief to the poor. Assuming while denying that the running of the cafeteria could be termed as an object, even then the amended provisions cannot be applied to the existing trusts. The amendments as per rul .....

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the same activity as in the past, irrespective of that any such object or activity would not be covered by the amendment. Your kind attention is invited to the provisions of the amendment and the amended section 2(15). "Charitable purpose" includes relief of the poor education, medical relief, [preservation of environment (including watersheds, forests and wildlife) and preservation of monuments or places or objects of artistic or historic interest] and the advancement of any other obj .....

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roviso shall not apply if the aggregate value of the receipt from the activities referred to therein is ten lakh rupees or tests in the previous year. 1C. The negative words used are for future registration of the trust under S. 12AA of the Act as these are 'shall not be a charitable purpose, if it involves the carrying on of any activity. " The word 'shall' used here cannot be interpreted to mean that the registrations already granted prior to the insertion of these provisions .....

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pose, if it involves the carrying on of any activity in the nature of trade, etc. This means that the object itself should be such as to involve the carrying on of any activity. In the nature of trade, etc. "in the course of the actual carrying out of a primary purpose/object of the trust or institution." Your kind attention, in this regard is invited to Circular No. 11/2008- F.No. 134/34/2008-TPL issued by Government of India. Ministry of Finance, Department of Revenue, Central Board .....

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of the above nature was eligible for exemption from tax under section 11 or alternatively under section 10(23C) of the Act. However, 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 wh .....

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ndment - 2.1 The newly inserted proviso to section 2(15) will not apply in respect of the first three limbs of section 2(15) i.e., relief of the poor, education or medical relief. Consequently, where the purpose of a trust or institution is relief of the poor, education or medical relief, it will constitute 'charitable purpose' even if it incidentally involves the carrying on of commercial activities. 2.2 'Relief of the poor encompasses a wide range of objects for the welfare of the .....

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o section 10(23) which are that: i) the business should be incidental to the attainment of the objectives of the entity, and ii) separate books of account should be maintained in respect of such business. Similar entities whose object is 'education' or 'medical relief would also continue to be eligible for exemption as charitable institutions even if they incidentally carry on a commercial activity subject to the conditions mentioned above. 3. The newly inserted proviso to section 2( .....

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ded based on the nature, scope, extent and frequency of the activity. 3.1 There are industry and trade associations who claim exemption from tax u/s. 11 on the ground that their objects are for charitable purpose as these are covered under 'any other object of general public utility'. Under the principle of mutuality, if trading takes place between persons who are associated together and contribute to a common fund for the financing of some venture or object and in this respect have no d .....

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ns have dealings with nonmembers, their claim to be charitable organizations would now be governed by the additional conditions stipulated in the proviso to S. 2(15). 3.2 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 .....

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ll 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. (Pradip Mehrotra) Director (TPL-1). 1E: Thus the amendment does not effect any institution with any charitable object, if an independent business is carried on for resources to attain the objectives of the trust, as no amendment has been made in Sec. 11(4A). IF: Further in view of the insertion of second proviso reading as 'Pr .....

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advancement of other objects of general public utility. This amendment erodes the entire concept of refusal envisaged in the 1st proviso, more so for the existing trust. " 9. The assessee further submitted vide letter dated 03.05.2012 as under: This is further to the hearing on 20-4-2012 when your Honors directed us to produce the books of account along with the accountant to explain to establish that separate books of account has been maintained for the activity of Premwati Cafeteria, As s .....

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ot been able to provide any medical facilities without any charge (totally free of cost). We enclose herewith copy of BAPS trustee board resolution dated 14.12.2005 permitting Suvasini Charitable Trust to carry out its activities, including running of the Premwati Cafeteria, from Swaminarayan Akshardham Mandir Complex at New Delhi, without payment of any rent for your records. Sir, Suvasini Charitable Trust, a public charitable trust, as already explained, was registered with the Sub-registrar, .....

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Swaminarayan Aksharsham Mandir Complex (owned by BAPS Swaminarayan sanstha, a public charitable trust registered under Bombay Public Trust Act, 1950 and registered as per Regd. No.A/2500/AMDAVAD dated 2.2.1977 having PAN. AAATB1429J and assessed at Ward/Circle- DDIT (Exemlption) ABD, Ahmadabad), by catering to the needs of thousands of people/devotes visiting the Akshardham Mandir every day - by providing hygienic vegetarian food prepared without the use of garlic/onions/ eggs at reasonable rate .....

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ll not be able to generate any surplus for the trust and the trust will not be able to do any charitable activities which presently is being done regularly with the surplus generated from the activity of running a cafeteria indirectly we can say that the rent free accommodation by BAPS, is itself a 'contribution to Suvasini for providing medical relief to the poor. " 1. Relief claimed as per grounds of appeal:- The assessment order be set aside as null and void, the additions made be de .....

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only object being pursued during the year; as such amended provisions of Sec. 2(15), proviso, are not applicable to the assessee; whereas the learned assessing officer has treated one of the activities, i.e. 'running of Premvati Cafeteria' being carried on since inception, of the attainment/achievement of the Main Objects of the Trust, as the object itself, to cover the trust within the meaning of amended provisions of Sec. 2(15). Hence, the Id. AO disallowed the application of income fr .....

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s that he has invoked the provisions of Sec. 2(15) of the IT Act. By doing so, the activity of running the Premwati Cafeteria has been brought under 4th limb of proviso to Sec, 2(15) of the IT Act, which is in other object of public utility. In this regard 1 have perused the assessment order and written submission of the appellant, wherein, appellant has brought full details of the activity done by Suvasini Charitable Trust and the definition of the Sec. 2(15) which includes charitable purpose i .....

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nt paragraph No.2.2 of the above mentioned submission he has been v' able to demonstrate that activities done by the appellant come under the purview of the relief of the poor because appellant society is doing work for the welfare of the economically and socially disadvantaged people and they are maintaining separate books of accounts as required u/s. 11(4A) of the IT Act. The Id. AR of the appellant has been able to demonstrate that newly inserted proviso to Sec. 2(15) will apply only to e .....

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xplanatory so as to show that appellant society is doing charitable work. Furthermore, I have seen details of charity expenses which include medicine expenses and include vehicle running for medical and Mobile Van repair. In the written submissions Id. AR of the appellant has also shown that the Cafeteria receipts have been utilized for charity expenses on cost of medicines, mobile medical van and honorarium to charity staff and volunteers. These details are available in the Schedule XI of the B .....

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15) of the IT Act and not in the 4th limb. The action of the AO treating the assessee society doing trade, commerce and business activity has no locus standi because Id. AR of the appellant was able to demonstrate that surplus received from the Cafeteria was fully utilized for relief of the poor and medical relief. In this regard I place my reliance on Circular No.11/2008 dated 19-12-2008, issued by Director (TPL-l),Central Board of Direct Taxes, wherein, in the relevant paragraph No.2.l to 3.2 .....

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ereunder- "2.1. The newly inserted proviso to section 2(15) will not apply in respect of the firstthree limbs of section 2(15), i.e. relief of the poor, education or medical relief. Consequently, where the purpose of a trust or institution is relief of the poor, education or medical relief, it will constitute 'charitable purpose' even if it incidentally involves the carrying on of commercial activities. 2.2. 'Relief of the poor' encompasses a wide range of objects for the we .....

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th proviso to section 10(23C) which are that:- i) the business should be incidental to the attainment of the objectives of the entity, ii) separate books of account should be maintained in respect of such business. Similarly, entities whose object is 'education' or 'medical relief would also continue to be eligible for exemption as charitable institutions even if they incidentally carry on a commercial activity subject to the conditions mentioned above. 3. The newly inserted proviso .....

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will be decided based on the nature, scope, extent and frequency of the activity. 3.1 There are industry and trade associations who claim exemption from tax u/s. 11 on the ground that their objects are for charitable purpose as these are covered under' any other object of general public utility'. Under the principle of mutuality, if trading takes place between persons who are associated together and contribute to a common fund for the financing of some venture or object and in this resp .....

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w of the proviso to section 2(15) owing to the principle of mutuality. However, if such organizations have dealings with non-members, their claim to be charitable organizations would now be governed by the additional conditions stipulated in the proviso to section 2(15). 3.2 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 .....

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ssees, 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." 4. The instant case falls under 1st and 3rd limb of Sec. 2(15), so, action of AO applying 4th limb of Sec. 2(15) of the IT Act is found to be erroneous and misconceived. In view of above discussion, in my consid .....

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ables/goods purchased from there. Therefore, the running of cafeteria cannot be considered as charitable activities because it is run for the business purposes and even the rates are not subsidized. Therefore, the AO rightly charged to tax the surplus of income from Premwati Cafeteria and ld. CIT(A) was not justified in deleting the addition made by the AO. 12. In his rival submissions the ld. Counsel for the assessee reiterated the submissions made before the authorities below and further submi .....

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ief by giving medical treatment, medicines and surgical relief to the poor and to assist in maintaining and improving the standard of health of the people and to preserve the standard of public health. It was emphasized that the cafeteria was run to generate the funds to achieve the object and as such it is incidental to the attainment of main objects of providing medical relief to the poor. It was stated that the Premwati cafeteria was setup by the assessee trust, since inception to provide hyg .....

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Sri Radha Damodar Charitable Trust (2012) 24 Taxmann.com 141 (Mum) 13. It was submitted that the AO made the arbitrary addition and the ld. CIT(A) was fully justified in deleting the same. 14. We have considered the submissions of both the parties and carefully gone through the material available on the record. In the present case, it is an admitted fact that the assessee is having the registration u/s 12A of the Act and also having the approval for exemption u/s 80G of the Act. The assessee is .....

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s in different educational faculties; to establish hostels and boardings and to provide facilities for residence and food to students; to provide monetary or other help to suitable educational institutions which are interested in building character of and promoting moral values amongst children, adolescents and youths; to establish and maintain libraries, reading halls, museums, etc. and to spread education in diverse other way to make Indian culture more lively and popular. The word education s .....

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standard of health. 15. The assessee vide supplementary trust deed dated 29.06.2006 inserted the following clause in its aims and objectives: The trust may establish or carry out Cafeteria Premwati at Swaminarayan Akshardham Complex, NH-24, Opposite Nizamudin Bridge, Akshardham Setu, Delhi-110092 to provide hygienic vegetarian dishes made without eggs/garlic/onion to thousands of people/tourists visiting the Akshardham everyday and the surplus generated from this activities will be utilized to a .....

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established one Cafeteria known as Premwati at Swaminarayan Akshardham Complex for providing hygienic vegetarian dishes in order to achieve its objective of improving the standard of health of the people. The main objects of the assessee i.e. imparting education and to provide relief by giving medical treatment and to improve the standard of health are undoubtedly charitable in nature. However, the income generated by the assessee from the Cafeteria which was run to achieve the main objects, was .....

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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. 17. If the aforesaid provisions are co .....

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r any particular caste or creed. In other words, this Cafeteria is open to all and the income generated from the said Cafeteria is claimed to be utilized for the main objects of the assessee. The said claim of the assessee was not rebutted by bringing any cogent material on record. 18. On a similar issue the ITAT Delhi Bench B in the case of Divya Yog Mandir Trust Vs JCIT (supra) has held as under: 6.6.7 The first issue as to whether the appellant trust did fall within the purview of providing o .....

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roduced as under :- "Section 2(15) of the Act defines "charitable purpose" as under:- "** ** ** (15) "charitable, purpose" includes relief of the poor, education, medical relief, preservation of environment (including watersheds, forests and wildlife and preservation of monuments or places or objects of artistic or historic interest, and the advancement of any other object of general public utility: ** ** ** The proviso inserted in section 2(15) of the Act by the Fi .....

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ch activity; ** "(Emphasis supplied) Therefore, the aforesaid proviso does not apply to a trust/institution engaged in the charitable object of providing relief to the poor, imparting education and providing medical relief. The vision with which the applicant trust has been set up and which is being followed over the years are as under:- ' - To make a disease free world through a scientific approach to Yoga and Ayurved and to fulfil the resolution of making a new world free from disease .....

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rveda, for Surgery and Emergency cases, Allopathy, Homoepathy, Unani and Acupressure to soothe patients suffering from unbearable pains and rid them of disease. - To evaluate methods of treatment of Physical Body, Etheric Body , Astral Body, Mental Body and Casual Body beyond the present incomplete system of treatment for cure of physical body alone; - Imparting Yoga and health education and to begin degree and diploma courses for students in disciplines of Yoga and Ayurveda.' As discussed a .....

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bout the advancement of any other object of general public utility. The aforesaid predominant objects and the vision make it clear that the objects of the appellant are to provide 'medical relief 'impart education' to the society at large and 'relief to the poor' hence the proviso to section 2 (15) does not apply in the case of the assessee/appellant. The forth issue as to whether donation of ₹ 38.35 crores made to Patanjali Yog Peeth for the purpose of setting up Yog B .....

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the pre-dominant objects and the vision make it clear that the main object of the assessee is to provide medical relief, impart education to the society at large and relief to the poor. Hence, the proviso to Section 2(15) does not apply to the facts of the assessee s case. In our opinion, the proviso is an exception to the main section, the definition of the charitable purpose has been given in sub-Section (15) of Section 2 of the Act, which is an inclusive definition and includes relief to the .....

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of public utility as laid down in the proviso to Section 2(15) of the Act and not were the receipts within the meaning of Section 11(4A) of the Act. However, nothing is brought on record to substantiate that the income generated from the said Cafeteria was not utilized by the assessee for achievement of the main objects i.e. to provide medical relief to the poor or to impart the education. To resolve this controversy, it is also relevant to discuss the provision contained in Section 11(4) & .....

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e as shown in the accounts of the undertaking, such excess shall be deemed to be applied to purposes other than charitable or religious purposes[* * *]. [(4A) Sub-section (1) or sub-section (2) or subsection (3) or sub-section (3A) shall not apply in relation to any income of a trust or an institution, being profits and gains of business, unless the business is incidental to the attainment of the objectives of the trust or, as the case may be, institution, and separate books of account are maint .....

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ttainment of main object which is charitable in nature. In the present case also nowhere it is established that the income earned by the assessee trust was not used for attainment of the main object or it was used elsewhere. Therefore, the addition made by the AO was not justified and the ld. CIT(A) rightly deleted the same. For the aforesaid view we are also fortified by the decision of the co-ordinate bench in the aforesaid case of Divya Yog Mandir Trust Vs JCIT (supra) wherein relevant findin .....

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nditions profit from such business are exempt u/s 11/12 of the Act. Thus it is clear that the charitable trust can carry on business and utilize its profits therefrom for the charitable purposes but a charitable trust cannot have its purpose, an activity that involves the buying and selling of goods and making profits. The business undertaking of the appellant as discussed above are thus the means for effectuating a charity, but not a charitable object itself. We find that in the case of appella .....

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e intention of earning profits. It is also pertinent to note that the total donations/voluntary contributions received by the appellant trust during the assessment year under consideration amounted to ₹ 3,89,14,100/- only. Whereas the total revenue expenditure incurred by the appellant trust in the assessment year under consideration for undertaking its charitable activities amounted to ₹ 48,54,93,383/- (excluding depreciation). Further it is apparent from page 26 of the paper book i .....

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ominant object of the activity whether it is to carry out a charitable purpose or to earn profit ? If the predominant object is to carry out as charitable purpose and not to earn profit the organization would not lose its charitable character merely because some profits arises from the activity. The Hon'ble Supreme Court in the case of Surat Art Silk Cloth Manufacturers (supra) has been pleased to observe that the expression 'for the purpose of 'profit' implies that the predomina .....

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(supra), American Hotel Lodging Association Education Institute (supra), Delhi Kannada Education Society (supra), Samaj Kalyan Parishad (supra). 6.7.9 Thus we find that there is no bar in the charitable trust/institutioncarrying on business provided the conditions prescribed in section 11(4)/11(4A) of the Act are satisfied. The Hon'ble Supreme Court in the case of P. Krishna Warriers (supra) has been pleased to hold with reference to income tax Act 1922 that if the trust carried on business .....

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the ground that part of the income from business was not applied for charitable purposes, the Hon'ble Supreme Court held that where business is held for charitable purposes the conditions prescribed in proviso (b) to section 4(3) (i) of the Income Tax Act is not applicable and the assessee was held to be eligible for exemption. The decision of Delhi High Court in the case of Hamdard Dawakhana (Waqf) (supra) though rendered in the context of the pre amended law i.e. before insertion of secti .....

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the business of the trust was incidental to the attainment of the objectives of the trust, namely the objectives of education and relief to the poor. Their lordships observed that after amendment of section 11(4A) in 1992, all that is required for the business income of the trust or institution to be exempt from tax is that the business should be incidental to the attainment of the objects of the trust or institution. The Hon'ble Court further held that if business whose income is utilized b .....

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cidental to the attainment of main objects: (b) profits from business are applied for charitable objects ; and (c) separate books of accounts are maintained. They were thus not justified in holding that the charitable objects was sub-serving the business, whereas as a matter of fact it was the other way round. We find that in the case of Bombay Keraleeya Samaj (supra) the objects of the assessee registered u/s 12A was inter alia propogation of the Kerala system of Ayurveda and for this purpose t .....

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non-members and claimed to have utilized the amount so collected for running the dispensaries. In the preceding assessment years, benefit of section 11 was given to the assessee. The assessee claimed the benefit u/s 10(22A) which was refused by the assessing officer mainly on the basis that the dominant object of the trust was to sell medicines and derive profit therefrom. The first appellate authority rejected the assessee's appeal. The Tribunal has however given relief with this finding t .....

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horities below have grossly erred in holding that the appellant's activities in relation to production and sale of ayurvedic preparations are not incidental to its main objective as the same are commercial in nature. Likewise in the case of Baun Foundation Trust v. Chief CIT [2013] 33 taxmann.com 677, the Hon'ble Bombay High Court has been pleased to hold that activity of running chemist shop within the premises of the hospital was incidental or ancillary to the dominant object of runnin .....

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