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DTC Bill 2010: Anomalies in Charities Law & Suggestions

Shri. M. A. Bakshi

DTC Bill 2010: Anomalies in Charities Law & Suggestions

Shri M. A. Bakshi, Vice President (Retd), ITAT

The author, using his vast experience as Lawyer & Judge, has not only meticulously & critically examined the provisions of the Direct Tax Code Bill relating to charities and identified several anomalies and loopholes therein, but also made several valuable suggestions on how the law should be amended to make it just & effective.

Suggestion No. 1:-

Charitable trust/institutions carrying out “any other object of public utility” not to carry on any business etc.

It would be relevant to mention that under the Income Tax Act, 1961 following are the broad principles of law relating to taxation of charitable/religious trusts/institutions:

Income derived from the property held under Trust wholly for charitable or religious purposes is exempt from taxation subject to fulfillment of certain conditions laid down under the Act. The relevant provisions are contained in Section 11 to 13. Section 2 (15) of the Income Tax Act, 1961 is also relevant as it defines” charitable purposes.”

The proposed provisions of section 102 in the DTC Bill 2010 read with section 103(vi) has the potential of denying the benefit of exemption to charitable trusts/institutions even in respect of charitable activities not involving any business when some activity in the form business is also carried out by such organizations The NPO should not lose exemption if one activity of an NPO is not deemed to be Charitable activity but the income from the said activity should be taxed at maximum marginal rate

Under the Income-tax Act 1961 before 1st April 1984 the term charitable purpose was defined to include:-

(i) relief of the poor,
(ii) education,
(iii) medical relief; and
(iv) advancement of any other object of general public utility not involving the carrying on of any activity for profit.

However, with effect from 1st April 1984 the words “not involving the carrying on of any activity for profit” were omitted.

With effect from 1st April 2009 the following objects were added to the definition of charitable purposes :-

(v) preservation of environment (including water sheds, forests and wild life) and
(vi) Preservation of monuments or places or objects of artistic or historic significance.

By the Finance Act 2008 a proviso has been added to Section 2(15) to provide that if advancement of any other object of general public utility involves carrying on any activity in the nature of business or any activity of rendering any services in relation to any business for a consideration, it shall cease to be a charitable purpose.

From Assessment Year 2009-2010 second proviso has been added to Section 2 (15) of the Act to the effect that first proviso will not apply if the aggregate value of the receipts from the activities referred to in the first proviso is Rs.10 lacs or less in the previous year.

Under the Direct Taxes Code Bill 2010 the above stated position of law is sought to be retained. However, section 103 of the DTC Bill 2010 in its present form does not produce the desired result of simplification of law. In order to appreciate our submissions it will be useful to compare the relevant provisions in its present form with the provisions proposed under the Direct Tax Code 2010.

PROVISION UNDER INCOME TAX ACT 1961

CORRESPONDING PROVISION UNDER THE DIRECT TAX CODE BILL 2010

Section 2(15) if the Income-tax Act 1961:-

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 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;

Provided further that the first proviso shall not apply if the aggregate value of the receipts from the activities referred to therein is ten lakh rupees or less in the previous year;

Section 103:-

103. In this Chapter, unless the context otherwise requires,—

(a)……….

(b) “Charitable activity” means the following activities carried out in India,

Namely:—

(i) Relief of the poor;
(ii) Advancement of education;
(iii) Medical relief;
(iv) Preservation of environment (including watersheds, forests and wildlife);
(v) preservation of monuments or places or objects of artistic or historic

interest; or

(vi) advancement of any other object of general public utility, not involving the carrying on of any activity in the nature of trade, commerce or business or any activity of rendering any service in relation thereto, for a cess, fee or any other consideration (irrespective of nature of use, application or retention of the income from such activity) and where the gross receipts during the financial year from such activity exceed ten lakh rupees;

When we compare the definition of Charitable purpose under section 2(15) of Income Tax Act 1961 with the definition of charitable activity under the corresponding provision being section 103 Clause (vi) of the DTC Bill 2010 it cannot but be said that the purpose is defeated by the language used in clause (vi) of section 103 of the DTC Bill 2010.

It is respectfully submitted that such an omission has far reaching consequences for the trusts/ institutions/ organizations created before 1st April 1962 which presently continue to enjoy exemption under the Income Tax Act 1961. We are confident that this omission is not deliberate. The organizations created before 1st April 1962 have been granted exemption for the last five decades. There is neither any declaration nor any intention expressed by the government/legislature for withdrawing the exemption to such organizations. We are confident that the omission is inadvertenant and not deliberate.

In my respectful submission, language of first and second proviso to Section 2(15) of the Income Tax Act, 1961 convey the intention of the legislature without any ambiguity in contrast to the proposed Clause (vi) to Section 103 of the Direct Taxes Code Bill 2010. It is suggested that Clause (vi) to section 103 of the DTC Bill 2010 may be redrafted as under if earlier suggestion is not accepted.

103 (vi) Advancement of any other object of general public utility:

Provided that 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 services in relation to any trade, commerce or business, for a cess and fee or any other consideration, irrespective of the nature of use or application or retention of income from such activity;

provided further that the first proviso shall not apply to the aggregate value of the receipts from the activities referred to therein is Rs.10 lacs or less in the previous year.”

The above suggestion if accepted will be as per the law that exists now under the Income-tax Act 1961.

However there is a strong case for reconsideration of the amendment made in 2009 to section 2(15) of the Income-tax Act 1961 and streamline the provisions for taxation of profits of business in the case of charitable trusts. The proposed provisions of section 102 in the DTC Bill 2010 read with section 103(vi) has the potential of denying the benefit of exemption to charitable trusts/institutions even in respect of charitable activities not involving any business when some activity in the form business is also carried out by such organizations The NPO should not loose exemption if one activity of an NPO is not deemed to be Charitable activity but the income from the said activity should be taxed at maximum marginal rate.

The purpose of taxing the business profits in the case of such organizations will be achieved if following suggestion is accepted.

It is suggested section 103(b)(vi) of the DTC Bill 2010 may be substituted as under :-

103(b)(vi) “advancement of any other object of general public utility,

Provided that where advancement of any object of general public utility involves the carrying on of any activity in the nature of trade, commerce or business or any activity of rendering any service in relation thereto, for a cess, fee or any other consideration( irrespective of nature of use, application or retention of the income from such activity), not being an activity referred to in Sec 93(1)(c), the income from business exceeding Rupees 10 lakhs shall be taxed at Maximum Marginal Rate.

BESIDES SECTION 102 be amended as under

Suggested Section 102 of the DTC Bill 2010

102. Notwithstanding anything contained in chapter IV any person shall be liable to tax at maximum marginal rate on the specified income for the relevant assessment year as under :-

(1) On the business income even when the person :-

(a) holds any business under trust, notwithstanding any specific direction that—

(i) the business shall form part of the corpus of such person; or

(ii) the income from the business shall be applied only for charitable

activity;

(b) on the income in respect of which the person fails to comply with the conditions specified in section 97;

(c) on the entire income for the relevant year if it ceases to be a non-profit organisation at any time during the financial year ,irrespective of registration granted under sub-section (4) of section 98;

(d) on the business income if it is not a business incidental to charitable activity.

(2) Without prejudice to sub-section (1), the non-profit organisation which ceases to be so due to conversion, merger or dissolution as referred to in sub-section (1) of section 101 shall be liable to income-tax in respect of its net worth in accordance with that section.

(3) The total income of any person falling under clauses (a), (b), (c) or clause (d) of sub section 1 shall be computed in accordance with the provisions of this code

The above suggestion is my respectful submission shall simplify the law and restrict the scope of litigation

Suggestion No. 2:-

Religious Trust /Institutions for the benefit of any particular Religious community created before 1st April 1962 entitled to exemption under the Income Tax Act 1961

The Income Tax Act 1961 provides for exemption in the case of charitable as well as religious trust in accordance with the provisions of Section 11 to 13 read with Section 2 (15). Under Section 13 of the Income Tax Act 1961, the Trust or Institutions created for the benefit of any particular religious community or caste are excluded from the benefit of exemption available under Section 11 of the Income Tax Act 1961. However, the trusts/institutions created before the commencement of the Income Tax Act, 1961 have been excluded from the operation of the negative category and are accordingly entitled to the exemption from taxation under the Income Tax Act 1961

The DTC Bill 2010 has provided exemption to the religious trust by including the category in the Seventh Schedule being the list of entities entitled to exemption from taxation.

Section 97 of the DTC Code Bill 2010 corresponds to Section 13 of the Income Tax Act 1961. Under section 97 whereas religious trust/institutions created or established for the benefit of any particular religion or excluded from the benefit of exemption under the DTC Bill 2010 the exception provided in respect of such trust created or established before 1st April 1962 allowed under the Income tax Act 1961 has not been mentioned under Section 97 of the DTC Bill 2010 inadvertenantly.

Similarly, under the Income Tax Act 1961 Section 13 provides that if any benefit is provided to the specified persons by the charitable/religious trusts/institutions, such amount of income applied by the trust/institution will be taxable. For operation of this provision also certain exceptions are provided under the said section. Under the DTC Bill 2010 similar provision is contained in Section 97 read with Section 314 (169), so however the exception provided under Section 13 of the Income Tax Act 1961is not provided under Section 97 of the DTC Bill 2010.

It will be useful to reproduce the relevant portion of section 13 of the Income-tax Act 1961 and its corresponding provision being Section 97 of the DTC Bill 2010.

Section 13 as on 26/11/2010

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-

(a) any part of the income from the property held under a trust for private religious purposes which does not ensure for the benefit of the public;

(b) 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;

(c) 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 ensures, or

(ii) if any part of such income or any property of the trust or the 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, 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-

(i) 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

(ii) 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 continue to remain so invested or deposited after the 30th day of November, 1983; or

(iii) any shares in a company, other than—

(A) shares in a public sector company;

(B) shares prescribed as a form or mode of investment under clause (xii) of sub-section (5) of section 11 are held by the trust or institution after the 30th day of November, 1983:

Provided that nothing in this clause shall apply in relation to-

(i) any assets held by the trust or institution where such assets form part of the corpus of the trust or institution as on the 1st day of June, 1973 ;

(ia) any accretion to the shares, forming part of the corpus mentioned in clause (i), by way of bonus shares allotted to the trust or institution;

(ii) any assets (being debentures issued by, or on behalf of, any company or corporation) acquired by the trust or institution before the 1st day of March, 1983;

(iia) any asset, not being an investment or deposit in any of the forms or modes specified in sub-section (5) of section 11, where such asset is not held by the trust or institution, otherwise than in any of the forms or modes specified in sub-section (5) of section 11, after the expiry of one year from the end of the previous year in which such asset is acquired or the 31st day of March, 1993, whichever is later;

(iii) any funds representing the profits and gains of business, being profits and gains of any previous year relevant to the assessment year commencing on the 1st day of April, 1984 or any subsequent assessment year.

Explanation.-Where the trust or institution has any other income in addition to profits and gains of business, the provisions of clause (iii) of this proviso shall not apply unless the trust or institution maintains separate books of account in respect of such business.

Explanation.-For the purposes of sub-clause (ii) of clause (c), in determining whether any part of the income or any property of any trust or institution is during the previous year used or applied, directly or indirectly, 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 July, 1972, no regard shall be had to the amendments made to this section by section 7 [other than sub-clause (ii) of clause (a) thereof] of the Finance Act, 1972.

(2) Without prejudice to the generality of the provisions of clause (c) and clause (d) of sub-section (1), the income or the property of the trust or institution or any part of such income or property shall, for the purposes of that clause, be deemed to have been used or applied for the benefit of a person referred to in sub-section (3),-

(a) if any part of the income or property of the trust or institution is, or continues to be, lent to any person referred to in sub-section (3) for any period during the previous year without either adequate security or adequate interest or both;

(b) if any land, building or other property of the trust or institution is, or continues to be, made available for the use of any person referred to in sub-section (3), for any period during the previous year without charging adequate rent or other compensation;

(c) if any amount is paid by way of salary, allowance or otherwise during the previous year to any person referred to in sub-section (3) out of the resources of the trust or institution for services rendered by that person to such trust or institution and the amount so paid is in excess of what may be reasonably paid for such services;

(d) if the services of the trust or institution are made available to any person referred to in sub-section (3) during the previous year without adequate remuneration or other compensation;

(e) if any share, security or other property is purchased by or on behalf of the trust or institution from any person referred to in sub-section (3) during the previous year for consideration which is more than adequate;

(f) if any share, security or other property is sold by or on behalf of the trust or institution to any person referred to in sub-section (3) during the previous year for consideration which is less than adequate;

(g) if any income or property of the trust or institution is diverted during the previous year in favour of any person referred to in sub-section(3):

Provided that this clause shall not apply where the income, or the value of the property or, as the case may be, the aggregate of the income and the value of the property, so diverted does not exceed one thousand rupees;

(h) if any funds of the trust or institution are, or continue to remain, invested for any period during the previous year (not being a period before the 1st day of January, 1971), in any concern in which any person referred to in sub-section (3) has a substantial interest.

(3) The persons referred to in clause (c) of sub-section (1) and sub-section (2) are the following, namely:-

(a) the author of the trust or the founder of the institution;

(b) any person who has made a substantial contribution to the trust or institution, that is to say, any person whose total contribution up to the end of the relevant previous year exceeds fifty thousand rupees;

(c) where such author, founder or person is a Hindu undivided family, a member of the family;

(cc) any trustee of the trust or manager (by whatever name called) of the institution;

(d) any relative of any such author, founder, person , member, trustee or manager as aforesaid;

(e) any concern in which any of the persons referred to in clauses (a), (b), (c), (cc) and (d) has a substantial interest.

(4) Notwithstanding anything contained in clause (c) of sub-section (1) but without prejudice to the provisions contained in clause (d) of that sub-section, in a case where the aggregate of the funds of the trust or institution invested in a concern in which any person referred to in sub-section (3) has a substantial interest, does not exceed five per cent. of the capital of that concern, the exemption under section 11 or section 12 shall not be denied in relation to any income other than the income arising to the trust or the institution from such investment, by reason only that the funds of the trust or the institution have been invested in a concern in which such person has a substantial interest.

(5) Notwithstanding anything contained in clause (d) of sub-section (1), where any assets (being debentures issued by, or on behalf of, any company or corporation) are acquired by the trust or institution after the 28th day of February, 1983 but before the 25th day of July, 1991, the exemption under section 11 or section 12 shall not be denied in relation to any income other than the income arising to the trust or the institution from such assets, by reason only that the funds of the trust or the institution have been invested in such assets if such funds do not continue to remain so invested in such assets after the 31st day of March, 1992.

(6) Notwithstanding anything contained in sub-section (1) or sub-section (2), but without prejudice to the provisions contained in sub-section (2) of section 12, in the case of a charitable or religious trust running an educational institution or a medical institution or a hospital, the exemption under section 11 or section 12 shall not be denied in relation to any income, other than the income referred to in sub-section (2) of section 12, by reason only that such trust has provided educational or medical facilities to persons referred to in clause (a) or clause (b) or clause (c) or clause (cc) or clause (d) of sub-section (3).

CORRESPONDING PROVISIONS UNDER THE DIRECT TAX CODE BILL 2010

Under the Direct Taxes Code Bill 2010 the charitable/religious trusts/institutions have been classified in the category of Non-Profit Organizations. The provisions of Section 90 to 103 read with Section 314(169) relate to the taxability of non-profit organizations.

Section 314 (169) of the Direct Taxes Code Bill 2010 defines non-profit organization as under:

314(169) “non-profit organisation” means an organisation, by whatever name called, including a trust, if—

(i) it is not established for the benefit of any particular caste or religious community;

(ii) it does not provide any benefit for the members of any particular caste or religious community;

(iii) it is established for the benefit of the general public or for the benefit of the Scheduled Castes, the Scheduled Tribes, backward classes, women or children;

(iv) it is established for carrying on charitable activities;

(v) it is not established for the benefit of any of its members;

(vi) it actually carries on the charitable activities during the financial year;

(vii) the actual beneficiaries of its activities are the general public, the Scheduled Castes, the Scheduled Tribes, backward classes, or women or children; and

(viii) it is registered as such under section 98;

Section 97 of the DTC Bill 2010 is also relevant and accordingly reproduced here under:-

97. (1) The funds or the assets of the non-profit organisation shall not be used or applied, directly or indirectly, for the benefit of an interested person.

(2) Without prejudice to sub-section (1), the funds or the assets of the non-profit organisation shall be deemed to have been used or applied for the benefit of an interested person, if—

(a) the funds or the assets of the non-profit organisation are, or continue to be, lent to any interested person, for any period during the financial year, without either adequate security or adequate interest or both;

(b) the land, building or other asset of the non-profit organisation is, or continues to be, made available for the use of any interested person, for any period during the financial year, without charging adequate rent or other compensation;

(c) any amount is paid by way of salary, allowance or otherwise during the financial year to any interested person, out of the resources of the non-profit organisation for services rendered by that person to such organisation and the amount so paid is in excess of what may be reasonably paid for such services;

(d) the services of the non-profit organisation are made available to any interested person, during the financial year, without adequate remuneration or other compensation;

(e) any share, security or other property is purchased by or on behalf of the non-profit organisation from any interested person, during the financial year, for consideration which is more than adequate;

(f) any share, security or other property is sold by or on behalf of the non-profit organisation to any interested person, during the financial year, for consideration which is less than adequate;

(g) any fund or asset of the non-profit organisation is diverted during the financial year in favour of any interested person where the fund or the value of the asset, as the case may be, or the aggregate of the funds and the value of the assets so diverted exceeds one thousand rupees; or

(h) any funds of the non-profit organisation are, or continue to remain, invested for any period during the financial year (not being a period before the 1st day of January, 1971), in any concern in which any interested person has a substantial interest and such investment exceeds five percent of the capital of that concern.

(v) any relative of the settler, founder, member, trustee or manager; or

(vi) any concern in which any of the persons referred to in clauses (i) to (v) has a substantial interest;

(e) “trust” includes legal obligation

It is evident from Section 13 of the Income Tax Act 1961 that the benefit of exemption under Section 11 is not available to any trust/ institution created for any particular religious community except those which were created or established before 1st April 1962. This law is sought to be retained under the DTC Bill 2010. So however, a perusal of Section 13 of the Income-tax Act 1961 and the corresponding provisions namely Section 314 (169) read with Section 97 of the DTC Bill 2010 relating to charitable/ religious trusts/institutions, it is observed that the benefit available to the organizations created for the benefit of any particular religious community established before the commencing of the Income Tax Act 1961 i.e. before 1st April 1962 has been omitted inadvertently. It is respectfully submitted that such an omission has far reaching consequences for the trusts/institutions/organizations created before 1st April 1962 which presently continue to enjoy exemption under the Income Tax Act 1961. We are confident that this omission is not deliberate. The organizations created before 1st April 1962 have been granted exemption for the last five decades. There is neither any declaration nor any intention expressed by the government/legislature for withdrawing the exemption to such organizations. We are confident that the omission is inadvertenant and not deliberate. It is therefore suggested that the following changes may be made in the DTC Bill 2010 to make the law it in accord with the law in respect of such organizations created/established for the benefit of any particular religious community before 1st April 1962

Section 314(169) may be modified as under:-

“314(169): Non-Profit Organizations: means an organization by whatever name called including a Trust if

(i) It is not established for the benefit of any particular caste or religious community.
(ii) It does not provide any benefit for the members of any particular caste or religious community.

(proviso may be added after sub-clause (i) and (ii) Section 314 (169) to read as under)

(Provided clause (i) and (ii) above shall not apply to such trust/institutions/organizations created/established before 1st April 1962)

It is further suggested that following clause 41 may be added to the Seventh Schedule to DTC Bill 2010.

Proposed Clause 41 in Seventh Schedule

“41: Any religious trust/ institution/organization by whatever name called established before 1st April 1962 for the benefit of any religious community/caste.

Suggestion No. 3:-

It is further pointed out that, Section 13 of the Income Tax Act 1961 prohibits application of any funds or assets directly or indirectly for the benefit of any interested person. So however exception is provided in the case of organizations created before 1st April 1962 if such use or application is by way of compliance with the mandatory term of the trust or a mandatory rule governing the institution.

Under the Direct Taxes Code Bill 2010 there is no corresponding provision in this regard.

Clause 39(g) of Seventh Schedule of the Direct Taxes Code Bill 2010 reads as under:

“These funds or assets are not used or applied or deemed to have been used or applied, directly or indirectly, for the benefit of any interested person.”

It is suggested that in order to bring the law in accord with the existing law, following proviso may be added to entry 39(g) of the Seventh Schedule.

Entry 39(g) “These funds or assets are not used or applied or deemed to have been used or applied, directly or indirectly for the benefit of any interested person.”

Provided that in case of a trust/institution created or established prior to 1st April 1962, the provisions of Entry 39(g) of the Seventh Schedule of Direct Taxes Code Bill 2010 shall not apply if such funds or assets are used or applied directly or indirectly for any interested person if such use or application is by way of compliance with the mandatory permission of the Trust or a mandatory rule governing the organization.”

It is further suggested that the other exceptions provided under Section 13 of the Income Tax Act 1961 may be adopted in Section 97 of the Direct Tax Code 2010.

Suggestion No. 4:-

As mentioned earlier, religious trusts are included in the list of entities not liable to tax and entry no. 39 of Seventh Schedule provides for exemption in the case of public religious trusts or institutions subject to certain conditions contained therein. One of the conditions is that such a trust is registered under Section 98 of the Code.

It is pertinent to mentioned that Section 98 of the Code provides for registration of public charitable trusts/ religious trusts. However the trust/institutions as are already registered under the provisions of Income Tax Act 1961 are not required to apply for registration under the said Section. The relevant Section 98 is reproduced here under:

“98: (1) A non-profit organisation shall make an application for its registration in the prescribed form and manner to the Commissioner.

(2) The provisions of sub-section (1) shall not apply to any non-profit organization which has been granted approval or registration under the Income Tax Act 1961 as it stood before the commencement of this Code, if the organisation fulfils such conditions as may be prescribed.

(3)The Commissioner, on receipt of the application for registration of a non-profit organisation made under sub-section (1), shall call for such documents or information as he

considers necessary in order to satisfy himself about the objects and genuineness of its activities and may make such further inquiries as may be required.

(4) The Commissioner shall, within a period of six months from the end of the month in which the application under sub-section (1) was received, pass an order in writing—

(a) registering the non-profit organisation if he is satisfied about its objects and the genuineness of its activities; or

(b) refusing to register the non-profit organisation if he is not so satisfied, after giving the organisation an opportunity of being heard.

(5) The registration granted under sub-section (4) shall be valid from the financial year in which the application under sub-section (1) was made.

(6) Where the Commissioner is satisfied that the activities of the non-profit organisation are—

(i) not genuine; or

(ii) not being carried out in accordance with its objects; or

not being carried out in accordance with any other law which is applicable to it or under which it is registered or approved, he shall pass an order in writing cancelling the registration or withdrawing the approval, as the case may be, granted under this section or the Income tax Act, 1961, as it stood before the commencement of this Code, after giving the organisation an opportunity of being heard.

As submitted earlier one of the conditions for eligibility of trust/institutions for exemption under entry 39 of Seventh Schedule to DTC Bill 2010 is” that the religious trust/institutions is registered under Section 98 of the Code”. Since the trust/institutions which are already registered under the Income Tax Act 1961 are not required to apply for registration under the DTC Bill 2010 a doubt will arise as to whether such trust/institutions can said to be registered under the DTC Bill 2010.

We are confident that the intention of the legislature is not to deprive the exemption to such trusts or institutions which are registered under the provisions of the Income Tax Act 1961. It is therefore suggested that Clause 39 (a) of Seventh Schedule to Direct Taxes Code Bill 2010 may be modified as under:

It is registered under Section 98 of this Code or under Section 12 (AA) of the Income Tax Act, 1961.

Suggestion No. 4A:-

Similarly, Section 79 of the Direct Taxes Code Bill 2010 provides for deduction to the persons making donations to the specified trust/institutions as are approved under Section 98 of the DTC Bill 2010. Part IV of the Sixteenth Schedule provides for deduction in respect of certain trusts/institutions/organizations @ 50%.

Item 6 of part 4 reads as under:

Schedule Sixteenth

Donations eligible for 50% deduction.

(6) Any other funds or any institution or any organization which is approved under Section 98.

As pointed out earlier, Section 98 provides that any organization which has been granted approval or registration under the Income Tax Act 1961 as it stood before the commencing of the code will not be required to make an application for registration or approval.

If technical view is strictly taken, any organization which is registered or approved under the Income Tax Act 1961 would not be an organization approved or registered under the DTC Bill 2010. A genuine doubt in the mind of the tax administrators as to whether such organization would be eligible for the benefit of the deduction under Section 79 read with Sixteenth Schedule of the Direct Taxes Code Bill 2010 cannot be ruled out.

Therefore, it is humbly suggested that a clarificatory clause may be added to provide the benefit to such organizations as are presently approved or registered under the provisions of the Income Tax Act, 1961. It is suggested that entry 6 of Part IV of Sixteenth Schedule to DTC Bill 2010 may be modified as under:

Schedule Sixteenth

Donations eligible for 50% deduction.

(6) Any other funds or any institution or any organization which is approved under Section 98 or under Section 80G of Income Tax Act 1961.

Suggestion No. 5:-

Partly religious and partly charitable organizations

Direct Taxes Code Bill 2010 is silent about such trusts/institutions which are partly religious and partly charitable. Reference may be made to the revised discussion paper issued in June 2010

chapter V of discussion paper reads as under

(c) Partly religious and partly charitable institutions will also be treated as NPOs if they are registered under the Code. Their income from public religious activity will be exempt subject to the fulfillment of the following conditions.

(i) The trust deed/memorandum of the institution shall contained a clause specifying the application of its gross receipts in pre determined ratio between charitable and religious activities
(ii) It shall maintained separate books of account and separate financials statements in respect of religious and charitable activities
(iii) It shall fulfill the conditions in clause (b) above

The conditions provided in clause (b) of Para 3 of the revised discussion paper is reproduced here under:

(b)The income of a public religious institutions will be exempt subject to fulfillment of all the following conditions:

(A) it shall be registered under the Code
(B) the trust/institutions shall apply its income wholly for public religious purposes.
(C) it shall be registered under the state law, if any.
(D) it established for the benefit of the general public
(E) the trust/institution shall file the return of tax basis before the due date
(F) it shall maintain books of account and obtain an audit report from a qualified accountant, in case its gross receipts exceed a prescribed limit.
(G) the funds or the assets of the trust/institution shall be invested or held, at any time during the financial year, in specified permitted forms or modes: and
(H) the funds or the assets of the trust/institution shall not be used or applied or deemed to have been used or applied, directly or indirectly, for the benefit of interested persons.

Donations to these institutions will not be eligible for any deduction in the hands of the donor.

It appears that there is inadvertenent omission in the DTC Bill 2010 relating to partly religious and partly charitable organizations

It is evident from the said discussion paper that Direct Taxes Code 2009 circulated in June 2010 contained a provision relating to partly religious and partly charitable trusts/institutions. It was provided that in case the trust deed/memorandum of the institutions contains a clause specifying the application of its gross receipts in the pre-determined ratio between charitable and religious activities the trust would be entitled to exemption in respect of the income from public religious activities. The income from charitable activities of the trust would be governed by the provisions as applicable to NPOs.

As stated above there is no mention of such trusts/institutions in the DTC Bill 2010.

The omission in the DTC Bill 2010 in this regard may be rectified by including provisions relating to partly religious and partly charitable organizations. So however, the condition relating to the specification of percentage of respective activities, in the memorandum or trust deed is not practical. It is suggested that the organizations carrying on their activities partly for religious and partly for charitable activities should be given an opportunity before the commissioner of income tax under Section 98 of DTC Bill 2010 to specify such percentage to be recorded in the registration certificate on the basis of which exemption/deduction be allowed.

Suggestion No. 6:-

Capital expenditure for earning or obtaining any receipt under Section 93

As pointed out earlier Sections 90 to 103 of Direct Taxes Code Bill 2010 relate to the computation of income relating to non-profit organizations. Section 93 of the Direct Taxes Code Bill 2010 gives the items of “gross receipts” to be taken into consideration for computation of income of non-profit organizations.. Section 93(1)(b) provides for inclusion of “any rent received in respect of property held by non-profit organizations consisting of any building or land appurtenant thereto”. Section 94 of the Direct Taxes Code Bill 2010 gives the list of outgoings for the purpose of computation of total income of non-profit organizations. Clause (a) of Section 94 provides for a deduction in respect of the amount paid for any expenditure not being capital expenditure incurred wholly and exclusively for earning or obtaining any receipt referred to in Section 93.

It is evident from the above provisions of Direct Taxes Code Bill 2010 that any expenditure of capital nature incurred by the trust/institution or organization incurred wholly or exclusively for earning of the rental income is not allowed as an outgoing for computation of the income of the organization.

The above provision is contrary to the decision of several High Courts. The decision of the Karnataka High Court in the case of CIT Vs. Janabhumi Trust, 2000, 242 ITR 457 may be quoted as one of the cases to support the issue. When the income of the trust is spent for acquisition/construction of asset for the purpose of generation of income to be applied for the objects of the trust. It would be just an reasonable to allow the existing established law to be continued under the DTC Bill 2010. The income applied for creation of such an asset justifies to be allowed as application of income for the objects of the trust. It is therefore humbly submitted that the words “not being capital expenditure” may be omitted from Section 94(a) of the Direct Taxes Code Bill 2010.

Suggestion No. 7:-

Repayment of loans as “ application of income”

Section 93(2) of the Direct Taxes Code Bill 2010 provides that any loan taken during financial year shall not be included in the “gross receipts” of the non-profit organization. This is fully justified.

Section 94 of DTC 2010 gives the list of outgoings from “gross receipts” mentioned under Section 93. It is pertinent to mention that under the Income Tax Act, 1961 the repayment of loan by any trust/organization is considered as application of income for the objects of the trust if the loan has been used for the objects of the trust/organization.. Reference may be made to CBDT Circular No. 100 dated 24th November 1973 which provides that any loan originally taken to fulfill one of the objects of the trust, will amount to application of the income for charitable and religious purpose. The decision of the Karnataka High Court in case of CIT Vs. Janabhumi Trust, 2000, 242 ITR 457 and several other decisions support the view.

It is suggested that in order to avoid any litigation a clause may be added in Section 94 in Direct Taxes Code Bill 2010 to provide for deduction in respect of any repayment of loan originally taken to fulfill any one objects of the trust. In case the suggestion is accepted, it would be reasonable to also include a provision to the effect that deduction in respect of the expenditure incurred out of the loans will not be considered as application of income for the objects of the trust until the amount is repaid.

Suggestion No. 8:-

Period of accumulation/setting apart be increased

Under Section 94(f) of the Direct Taxes Code Bill 2010, deduction is provided for any amount accumulated or set apart for carrying on any charitable activities to the extent of 15% of the total income or 10% of the gross receipts whichever is higher if such amount is invested or deposited in the mode specified under Section 95 for a period not exceeding 3 years from the end of the financial year.

It is submitted that under the Income Tax Act 1961 a period for accumulation or setting apart earlier was 10 years which was reduced to 5 years. It is respectfully submitted that there is no justification for reducing the period for accumulation or setting apart of income. It is submitted that the period of accumulation may be restored to 10 years and in any case may not be less than 5 years as presently available under the Income Tax Act 1961.

Suggestion No. 9 the:-

Deduction of administrative expenses/depreciation on assets.

Section 94 of the Direct Taxes Code Bill 2010 provides for deduction in respect of the outgoings in the case of non-profit organizations. Clause (a) of Section 94 provides” the amount paid for any expenditure incurred wholly and exclusively for earning or obtaining any receipts referred to in Section 93” as an outgoing. It is suggested that in order to simplify the law and to avoid ligation, it may be specifically provided that the administrative expenses including depreciation on the fixed assets would be allowed as an outgoing. It is therefore suggested that clause (a) of 94 may be modified as under:

“94. The amount of outgoings during the financial year for the purpose of computation of the total income shall be the aggregate of:-

(a) the amount paid for any expenditure including administrative expenditure incurred wholly and exclusively for earning or obtaining any receipts referred to in Section 93

(a)i. depreciation on asset in respect of which no deduction is claimed under any other provisions of the Code.

It may be pertinent to mention that there is no scope for double deduction in respect of depreciation as there are safeguards already provided under the Direct Taxes Code Bill 2010 prohibiting double deduction. Please refer to Sections 18(c), 18(2), 36(3), 38(4)(b) and 44(7).

The suggestion is made in order to make the law simple to understand and avoid litigation.

Suggestion No. 11:-

Benefit for investment out of capital gains

Section 93(d) of the Direct Taxes Code Bill 2010 provides for inclusion of capital gains in the gross receipts of any non-profit organization. Whereas there can be no objection to the inclusion of capital gains in the gross receipts the denial of benefit allowed under Section 11(1A) of the Income Tax Act 1961 is not justified.. It is suggested that the benefit which is presently available under Section 11(1A) may be retained by adding the relevant clause of Section 11(1A) in this regard as a proviso to Clause (d) of Section 93 of DTC Bill 2010.

Provided that –

For the purposes of sub-section (1),—

(a) where a capital asset, being property held under trust wholly for charitable or religious purposes, is transferred and the whole or any part of the net consideration is utilised for acquiring another capital asset to be so held, then, the capital gain arising from the transfer shall be deemed to have been applied to charitable or religious purposes to the extent specified hereunder, namely:—

(i) where the whole of the net consideration is utilised in acquiring the new capital asset, the whole of such capital gain ;

(ii) where only a part of the net consideration is utilised for acquiring the new capital asset, so much of such capital gain as is equal to the amount, if any, by which the amount so utilised exceeds the cost of the transferred asset;

(b) where a capital asset, being property held under trust in part only for such purposes, is transferred and the whole or any part of the net consideration is utilised for acquiring another capital asset to be so held, then, the appropriate fraction of the capital gain arising from the transfer shall be deemed to have been applied to charitable or religious purposes to the extent specified hereunder, namely:—

(i) where the whole of the net consideration is utilised in acquiring the new capital asset, the whole of the appropriate fraction of such capital gain;

(ii) in any other case, so much of the appropriate fraction of the capital gain as is equal to the amount, if any, by which the appropriate fraction of the amount utilised for acquiring the new asset exceeds the appropriate fraction of the cost of the transferred asset.

Explanation.—In this sub-section,—

(i) “appropriate fraction” means the fraction which represents the extent to which the income derived from the capital asset transferred was immediately before such transfer applicable to charitable or religious purposes;

(ii) “cost of the transferred asset” means the aggregate of the cost of acquisition (as ascertained for the purposes of section 48 and 49) of the capital asset which is the subject of the transfer and the cost of any improvement thereto within the meaning assigned to that expression in sub-clause (b) of clause (1) of section 55;

“net consideration” means the full value of the consideration received or accruing as a result of the transfer of the capital asset as reduced by any expenditure incurred wholly and exclusively in connection with such transfer.

Suggestion No. 12:-

  1. Benefit of carry forward of deficit

There is no provision for carry forward of deficit (excess of expenditure over income) in the case of charitable organizations. It is suggested that a provision may be made for permitting the excess of expenditure incurred in any year to be carried forward and set off against the gross receipts of the subsequent year.

Suggestion No. 13:-

Organizations carrying on business

Section 102 of the Direct Taxes Code Bill 2010 excludes the application of beneficial provision of Chapter IV to any person who holds any business under trust notwithstanding any specific direction in the instrument of trust etc. that the business shall form part of the corpus of such organization or the income from the business shall be applied only for charitable activities. It is respectfully submitted that this provision is harsh and will create hardship in genuine cases. It is suggested that such organizations may not be excluded from the benefits of Chapter IV. So however the income earned from business may be taxed at maximum marginal rate. This will ensure that there is no loss of revenue on business income earned by such organizations to the exchequer and at the same time the benefit under the DTC Bill 2010 is not lost by such organizations for carrying out charitable/religious activities.

Suggestion No. 14:-

Exemption from Wealth Tax

The Direct Taxes Code Bill 2010 provides for the levy of Wealth Tax on all assesses except non-profit organizations. Since the religious trusts created before 1st April 1962 have been excluded from the definition of non-profit organizations, it is suggested that Section 112(1) may be modified to provide as under:

“Subject to the provisions of this Code every person other than the persons specified below shall be liable to pay Wealth Tax on the Net Wealth on the valuation date of the financial year:

(i) Non-Profit Organizations as defined under Section 314(169).
(ii) Religious Trusts or Institutions.
(iii) Trusts or Institutions created or established before 1st April 1962 for the benefit of any religious community/caste.

One comment on “DTC Bill 2010: Anomalies in Charities Law & Suggestions
  1. CA.pushkar NATH says:

    sir, i would like to inform that any ancilliary activity(i.e, including business activity) by trust for fulfilling for the object of trust. it is also exempt from tax. under current provision of ITA,1961. BUT UNDER DTC THEIR IS DISPUTE whether business for attainment for object of trust is exempt or not. situation not clear till today. proposed Tax rate for Dtc is 15 % for surplus and capital gain. it mean surplus generated from permitted welfare activities.

    Thx
    CA.PUSHKAR NATH
    09971714366

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