TMI Blog2018 (12) TMI 1887X X X X Extracts X X X X X X X X Extracts X X X X ..... re has been incurred in respect of an 100 years old mandir situated at village Jogalsar where the pooja is performed regularly by the locals at their expenses however, certain expenses in terms of upkeep and maintenance of the temple premises, distribution of prasad, etc is contributed by the assessee society. It has been stated that the contributions have been made to keep alive the interest of the locals in the said old heritage temple which is ancillary to assessee society s main object to preserve and promote such heritage temple buildings. The temple is visited by all locals irrespective of their religion, caste, creed or gender and the temple premises is also used for various social and festival gatherings. The line of distinction between religious and charitable purposes is very thin and no water tight compartment between the two activities can be very established. In the facts of the present case, we donot believe that where the assessee has incurred certain expenses for upkeep and maintenance of the temple premises and distribution of prasad to public at large, it would be an activity related to a particular religion or community and the expenses so incurred would be in na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee are more than 5% of the total receipts. 5. The attention is invited to the Section 80G(5B) of the I.T Act, 1961 which is reproduced as under:- [(5B) Notwithstanding anything contained in clause (ii) of sub-section (5) and Explanation-3, an institution or fund which incurs expenditure, during any previous year, which is of a religious nature for an amount not exceeding five per cent of its total income in that previous year shall be deemed to be an institution or fund to which the provisions of this section apply]. The plain reading of section 80G(5) and 80G (5B) suggests that this section applies only to the charitable institution/fund. It also indicate that if the Institution/fund incurs expenses of religious nature not exceeding 5% of total income than also it will be eligible for approval u/s 80G. But if the expenses of religious nature exceed 5% of total income, the institution/fund cannot be granted approval. 3. Against the said order, the assessee society is in appeal before us. During the course of hearing, the ld. AR submitted that during proceedings before ld. CIT(Exemption), all the documents required by him vide letter dated 13.12.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such big building available for common assembly or performing common function of social importance at large. Merely on the basis of presentation in income expenditure, a conclusion has been drawn by the ld CIT(E). It is important to note that assessee has used the temple accommodation for Training of Stitching to the local women from time to time. The relevant paper cuttings is also enclosed (PBP 25-33). The assessee is also running and maintaining a Tempo to collect garbage under Swach Bharat Mission . The relevant paper cutting is also enclosed (PBP 34- 37). The said Tempo is also parked in the temple premises. These show the temple premises are always available and used by the assessee to pursue its main object. It is obvious that under these circumstances, otherwise also, assessee society have certain obligations to temple management. Contribution made is insignificant in comparison to the regular benefit taken by the Society free of cost from the temple management for pursuing its main object. Therefore, ld CIT(E) failed to appreciate the substance and merely considered the form (presentation in the annual) without any enquiry or application of mind. In support, reliance wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticular community or sect practicing one religion. Hinduism is not one particular religion and different sects following Hindu philosophy do visit temples of Lord Vishnu, be that Jains, Sikhs, Brahmins etc. There is no water tight compartment between different castes or sects following one particular religion. Freedom of religion is guaranteed in the Constitution of India under Article 25 of the Constitution of India. Therefore, taking such a pedantic and narrow approach, it cannot be said that character of the Charitable Trust is lost if one particular expenditure is made for repair and renovation of Lord Vishnu's temple and that too by way of contribution to another Trust. A perusal of the Trust-deed of the petitioner produced on record shows that objective of the trust was clearly charitable and was not for any particular religion even wholly or substantially. Nothing has been pointed out in the impugned order that the petitioner trust has been constantly spending money for a particular religion. One should discern and imbibe with great respects the observations of Hon'ble Supreme Court in Sri Jagannath Jew's case cited supra. b. Jaipur ITAT in case of Shri Ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of any specific or particular temple belonging to a specific sampradaya and if a temple which is maintained by the assessee keeping in view all the rits and rituals being followed in the said temple as per particular sampradaya, the same would be irrelevant for the purpose of construing the objects as charitable. c. ITAT Nagpur in case of Shiv Mandir Devsttan Panch Committee Sansthan Vs. CIT-1, Nagpur (ITA no. 223/Nagpur/2009 dated 11.10.2012) has held as under: 8. We have gone through the relevant clauses which have been regarded to be religious in nature by the CIT(A). The object clause of the trust reads as under: Worship of Lord Shiva , Hanumanji, Goddess Durga and maintaining of temple. To celebrate festivals like Shivratri, Hanuman Jayanti, Ganesh Uttasav, Makar Sankranti, renovation and maintenance of temple. To make available temple for general public and to provide facilities for the public visiting temple. Balance fund, if any after utilizing for the above mentioned objects, may be utilized for education, social and the cultural activities. To conduct nursery school, library, sports club, hostels and other activities. To help poor children for education ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r religion. No doubt the DR argued that it relate to Hindu Religion but in our opinion it is not so, Lord shiva. Hanumanji, goddess Durga does not represent any particular religions, they are merely regarded to be the super power of the universe. 11. In the case of Commissioner of Hindu Religious and Charitable Endowments Madras Vs. Sri Lakshmindra Thirhja Swamiar 154 SCJ335. Religion has been expressed to mean a matter of faith with individuals or communities and it is not necessarily theristic. There are well known religious in India, like Buddhism and Jainism, which do not believe in God or in any intelligent first cause. A religion undoubtedly has its basis in a system of belief or doctrines which are regarded by those who profess that religion as conducive to their spiritual well being, but is will not be correct to say that religions is nothing else but a doctrine or belief. A religion may not only lay down a code of ethical rules for its followers to accept, but it might prescribed rituals and observances, ceremonies and modes of worship which are regarded as integral parts of a religion, and these forms and observances might extent even to matters of food and dress. No m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch is not a religion. In this regard we rely on the case of TT Kuppuswamy Chettair Vs. State of Tamil Nadu (1987) 100 L.W 1031 in which it was held The word Hindu has not been defined in any of the texts nor in judgment made law. The word was given by British administrators to inhabitants of India, who were not Christians Muslims, Paris or Jewa. The alleged Hindu religion consists of four castes Brahmins, Kshatriyas, vaishyas and sudras belonging ultimately to two schools of law, mitasharas and dayabhaga. There is, however, no religion by the name Hindu'. It only shows that so called Hindu religion has been called for convenience. CIT must be aware of that the Hindu consists of a number of communities having the different gods who are being worshipped in a different manner, different rituals, different ethical codes. Even the worship of god is not essential for a person who has adopted Hinduism way of life. Thus Hinduism holds within its fold men of divergent views and traditions who have very little in common except a vague faith in what may be called the fundamentals of the Hinduism. The word 'community' means a society of people living in the same place. Under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est, does not have any business income, income from house property or any other source of income. The term Total Income has also not defined. It is trite law that the interpretation of term should be according to purpose and context in which, it has been used. Perusal of the Section shows that it is the intention to allow religious nature to be considered as charitable purpose but with certain limitations i.e. 5%. Under the circumstances, all income should be clubbed otherwise; it may take to irrational conclusion. In the instant case, apart from voluntary contribution and bank interest, there is accommodated income as well. Ld. CIT(E) has not included that accumulated income i.e. ₹ 87,212/-. After including that amount, the total income comes to ₹ 3,87,839/- and percentage of Mandir Pooja Expenses comes to 4.44%. 3.6 It was alternatively submitted that section 80G is related to deduction in respect of donation while computing the total income of the Assessee. It is relevant to note that income of assessee has to compute every year and every year is separate from each other. Section 80G(2)(iv) says donation to any other fund or institution to which this section app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e material available on record. The assessee, a society registered with Registrar of Societies has filed an application before the ld CIT(E) for seeking registration u/s 80G of the Act on 06.12.2017. Separately, the assessee also moved an application U/s 12AA of the Act. Though the date of moving the application u/s 12AA is not apparent, however, within six days of moving the first application u/s 80G, the ld CIT(E) granted registration to the assessee society u/s 12AA of the Act vide his order dated 12.12.2017. However, the first application seeking registration u/s 80G(5) was rejected by the ld CIT(E) vide his order dated 31.5.2018. While rejecting the assessee s society application under section 80G(5), the ld CIT(E) once again looked at the objects and activities of the assessee society for the last few years of its existence and no finding has been recorded by him in terms of any non-charitable objects or activities being carried out by the assessee society. In context of Section 80G(5), in absence of any adverse finding, the assessee society has also been found fully compliant with the conditions specified u/s 80G(ii) and 80G(iii) as well as Explanation 3 to section 80G of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arity by tenets of religion or spend a negligible amounts on purposes other than charitable. It would be harsh to deny the benefits to the institutions which are engaged in activities, the whole or substantially the whole of which are of charitable nature. 33.2 In order to mitigate hardship to such funds or institutions, the provisions of section 80G are amended so as to provide that in case such institutions or funds spend upto five per cent of their income during the relevant previous year for religious purpose, the benefit of deduction will not be denied to them. 33.3 This amendment will take effect from the 1st day of April, 2000 and will, accordingly, apply in relation to assessment year 2000-2001 and subsequent years. 8. Thus, the provisions of section 80G(5B) have been introduced as an enabler provision rather than disabler provision and more so in context of such fund or institution which are governed by the provisions of clause (ii) of sub-section (5) or Explanation 3 to section 80G of the Act. Therefore, the provisions of section 80G(5B) have to be read along with section 80G(5)(ii) and/or along with Explanation 3 to section 80G of the Act. In other words ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... society s main object to preserve and promote such heritage temple buildings. The temple is visited by all locals irrespective of their religion, caste, creed or gender and the temple premises is also used for various social and festival gatherings. The line of distinction between religious and charitable purposes is very thin and no water tight compartment between the two activities can be very established. In the facts of the present case, we donot believe that where the assessee has incurred certain expenses for upkeep and maintenance of the temple premises and distribution of prasad to public at large, it would be an activity related to a particular religion or community and the expenses so incurred would be in nature of religious expenses. In case of Umaid Charitable Trust (supra), the Hon ble Rajasthan High Court has held that unless objective of the assessee society is for spending its income for a particular religion and it is so found in the trust deed, the Revenue cannot reject the application seeking registration under section 80G merely because the assessee has incurred certain expenses for upkeep and maintenance of the temple premises and distribution of prasad to publ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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