Appeal Details
Counselvise Citation
[2011] 134 COUNSELVISE.COM (IT) 7018 (ITAT-AGRA)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
1 year(s) 25 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
31-05-2011
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
DB
Next Hearing Date
19-04-2011
Assessment Year
2010-2011
Appeal Filed On
05-05-2010
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE SHRI P.K. BANSAL, ACCOUNTANT MEMBER AND SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO. 132/AGRA/2010 ASSTT. YEAR : 2010-11 BRIJ VIKAS TRUST, VS. COMMISSIONER OF SHRI JI BABA ASHRAM, INCOME-TAX I, AGRA. BHUTESHWAR, MATHURA. (PAN : AABTB 2632 A) (APPELLANT) (RESPONDENT) FOR APPELLANT : SHRI S.K. BAJPAI, C.A. FOR RESPONDENT : SHRI A.K. SHARMA, JR. DR ORDER PER P.K. BANSAL, A.M. : THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINS T THE ORDER OF CIT-I, AGRA DATED 09.03.2010, WHEREBY THE APPLICATION OF ASSESSEE FOR RENEWAL OF APPROVAL U/S. 80G WAS REJECTED. THE EFFECTIVE GROUNDS RAISED IN APPEAL READ AS UNDE R : 1. THE LD. COMMISSIONER OF INCOME TAX HAS ERRED IN LAW AND ON FACTS IN REJECTING OUR APPLICATION FOR RENEWAL OF APPROVAL U /S. 80G OF THE INCOME TAX ACT ON MERE PRESUMPTIONS. 2. THE LD. COMMISSIONER OF INCOME TAX HAS ERRED IN LAW AND ON FACTS IN REJECTING OUR APPLICATION FOR RENEWAL OF APPROVAL U /S. 80G OF THE INCOME TAX ACT WITHOUT APPRECIATING THE FACTS MENTIONED IN TRUST DEED THAT TRUST WAS NOT DOING ANY RELIGIOUS ACTIVITY. 3. THE LD. COMMISSIONER OF INCOME TAX HAS ERRED IN LAW AND ON FACTS IN REJECTING OUR APPLICATION FOR RENEWAL OF APPROVAL U /S. 80G OF THE INCOME TAX ACT EVEN WHEN THE OBJECTS OF THE TRUST ARE CHAR ITABLE AS PROVIDED TO SECTION 2(15) AND THAT THE ACTIVITIES OF THE TRUST ARE GENUINE AND LEGAL. 2. THE BRIEF FACTS RELATING TO THE ISSUE ARE THAT T HE ASSESSEE TRUST MOVED APPLICATION DATED 09.04.2009 IN FORM NO. 10G FOR RENEWAL OF APPROVAL U/S. 80G BEFORE THE COMMISSIONER OF 2 INCOME-TAX-I, AGRA. THE SAID APPLICATION WAS FILED IN THE OFFICE OF CIT ON 11.09.2009. THE LEARNED CIT-I, AGRA ON PERUSAL OF THE TRUST DEED, N OTICED THAT THE OBJECTS INTER ALIA MENTIONED IN PARA 4(B) AND 4(B) OF THE TRUST DEED, I.E., CONSTRU CTION AND MAINTENANCE OF BRIJ CHAURASI KOS PARIKRAMA WAY AND CONSTRUCTION AND MAINTENANCE OF D HARAMSHALA, TENTS, NIGHT STAY CAMPS ETC. IN BRIJ CHAURASI KOS PARIKRAMA MARG AND TO PROVIDE ALL FACILITIES TO THE PILGRIMS COMING TO HAVE PARIKRAMA OF BRIJ CHAURASI KOS, ARE RELIGIOUS IN NA TURE AND FOR THE BENEFIT OF HINDU COMMUNITY. THE LD. CIT, THEREFORE, REJECTED THE APPLICATION ON THE FOLLOWING OBSERVATIONS : (A) THAT THE ASSESSEE TRUST HAS APPLIED THE FUND FO R THE PURPOSE OTHER THAN CHARITABLE AS CONTEMPLATED IN EXPLANATION 3 TO SECTION 80G(5) IN CONTRAVENTION OF SECTION 80G(5)(II) OF THE ACT; (B) THAT THE ASSESSEE-TRUST IS EXPRESSED TO BE FOR THE BENEFIT OF PARTICULAR RELIGIOUS COMMUNITY IN CONTRAVENTION OF SECTION 80G(5)(III) A ND (C) THAT THE ASSESSEE-TRUST HAS SPENT 21.6% AND 21 .72% OF ITS TOTAL INCOME IN THE F.Y. 2008-09 AND 2007-08 RESPECTIVELY ON RELIGIOUS ACTIV ITIES, WHICH IS AGAINST THE PERMISSIBLE LIMIT OF 5% AS PROVIDED U/S. 80G(5B) OF THE ACT. 3. WE HAVE HEARD BOTH THE PARTIES AND HAVE CAREFULL Y PERUSED THE ENTIRE MATERIAL AVAILABLE ON RECORD ALONG WITH THE ORDER OF CIT. THE PROVISIO NS OF SECTION 80G SUB-SECTION (5) OF THE INCOME-TAX ACT LAYS DOWN AS UNDER : (5). THIS SECTION APPLIES TO DONATIONS TO ANY INST ITUTION OR FUND REFERRED TO IN SUB- CLAUSE (IV) OF CLAUSE (A) OF SUB-SECTION (2), ON IF IT IS ESTABLISHED IN INDIA FOR A CHARITABLE PURPOSE AND IF IT FULFILS THE FOLLOWING CONDITIONS, NAMELY (I). WHERE THE INSTITUTION OR FUND DERIVES ANY INCO ME, SUCH INCOME WOULD NOT BE LIABLE TO INCLUSION IN ITS TOTAL INCOME UNDER TH E PROVISIONS OF SECTION 11 AND 12 OR CLAUSE (23AA) OR CLAUSE (23C) OF SECTION 10 : PROVIDED THAT WHERE AN INSTITUTION OR FUND DERIVES ANY INCO ME, BEING PROFITS AND GAINS OF BUSINESS, THE CONDITION THAT S UCH INCOME WOULD NOT BE LIABLE TO INCLUSION IN ITS TOTAL INCOME UNDER THE P ROVISIONS OF SECTION 11 SHALL NOT APPLY IN RELATION TO SUCH INCOME, IF (A) THE INSTITUTION OR FUND MAINTAINS SEPARATE BOO KS OF ACCOUNT IN RESPECT OF SUCH BUSINESS; 3 (B) THE DONATIONS MADE TO THE INSTITUTION OR FUND A RE NOT USED BY IT DIRECTLY OR INDIRECTLY, FOR THE PURPOSES OF SUCH BU SINESS; AND (C) THE INSTITUTION OR FUND ISSUES TO A PERSON MAKI NG THE DONATION A CERTIFICATE TO THE EFFECT THAT IT MAINTAINS SEPARAT E BOOKS OR ACCOUNT IN RESPECT OF SUCH BUSINESS AND THAT THE DONATIONS RECEIVED BY IT WILL NOT BE USED, DIRECTLY OR INDIRECTLY, FOR THE P URPOSES OF SUCH BUSINESS; (II) THE INSTRUMENT UNDER WHICH THE INSTITUTION OR FUND IS CONSTITUTED DOES NOT, OR THE RULES GOVERNING THE INSTITUTION OR FUND DO N OT, CONTAIN ANY PROVISION FOR THE TRANSFER OR APPLICATION AT ANY TIME OF THE WHOLE OR ANY PART OF THE INCOME OR ASSETS OF THE INSTITUTION OR FUND FOR ANY PURPOSE OTHER THAN A CHARITABLE PURPOSE; (III) THE INSTITUTION OR FUND IS NOT EXPRESSED TO BE FOR THE BENEFIT OF ANY PARTICULAR RELIGIOUS COMMUNITY OR CASTE; (IV) THE INSTITUTION OR FUND MAINTAINS REGULAR ACC OUNTS OF ITS RECEIPTS AND EXPENDITURE; (V) THE INSTITUTION OR FUND IS EITHER CONSTITUTED AS A PUBLIC CHARITABLE TRUST OR IS REGISTERED UNDER THE SOCIETIES REGISTRATION ACT, 18 60 (21 OF 1860), OR UNDER ANY LAW CORRESPONDING TO THAT ACT IN FORCE IN ANY PART OF INDIA OR UNDER SECTION 253 OF THE COMPANIES ACT, 1956 (1 OF 1956), OR IS A UNIVERSITY ESTABLISHED BY LAW, OR IS ANY OTHER EDUC ATIONAL INSTITUTION RECOGNISED BY THE GOVERNMENT OR BY A UNIVERSITY EST ABLISHED BY LAW, OR AFFILIATED TO ANY UNIVERSITY ESTABLISHED BY LAW, OR IS AN INSTITUTION FINANCED WHOLLY OR IN PART BY THE GOVERNMENT OR A LOCAL AUTH ORITY; AND ( VI) IN RELATION TO DONATIONS MADE AFTER THE 31ST DAY OF MARCH, 1992, THE INSTITUTION OR FUND IS FOR THE TIME BEING APPROVED BY THE COMMISSIONER IN ACCORDANCE WITH THE RULES MADE IN THIS BEHALF: PROVIDED THAT ANY APPROVAL SHALL HAVE EFFECT FOR SUCH ASSES SMENT YEAR OR YEARS, NOT EXCEEDING FIVE ASSESSMENT YEARS, AS MAY BE SPECIFIED IN THE APPROVAL. 4. FROM THE PERUSAL OF THE AFORESAID SECTION, IT IS APPARENT THAT SECTION 80G OF THE ACT PROVIDES FOR DEDUCTION IN RESPECT OF THE DONATIONS MADE BY THE TAX PAYERS TO CERTAIN TRUST OR INSTITUTION. THESE TRUSTS OR INSTITUTIONS HAVE TO C OMPLY WITH THE CONDITION AS LAID DOWN U/S. 80G(5)(I) TO (V) OF THE INCOME-TAX ACT. BY FINANCE ACT, 1991, THE DEDUCTION UNDER THE PROVISIONS 4 OF SECTION 80G FOR ANY FUND OR INSTITUTION NOT SPEC IFICALLY MENTIONED IS ALLOWED IF IT IS APPROVED BY THE COMMISSIONER OF INCOME-TAX IN ACCORDANCE WIT H SECTION 80G(5)(VI). THE APPROVAL HAS TO BE MADE IN ACCORDANCE WITH THE RULES MADE IN THIS B EHALF. RULE 11A UNDER THE INCOME-TAX RULES HAS BEEN INSERTED W.E.F. 21.09.1992. THIS RULE REQU IRES AN INSTITUTION OR FUND TO MAKE AN APPLICATION FOR APPROVAL UNDER SECTION 80G(5)(VI) I N FORM NO. 10G. THE APPLICATION WAS TO BE SUBMITTED IN TRIPLICATE. THIS RULE FURTHER REQUIRES THAT THE APPLICATION SHALL BE ACCOMPANIED WITH THE FOLLOWING DOCUMENTS NAMELY : (I). COPY OF REGISTRATION GRANTED U/S. 12A OR COPY OF THE NOTIFICATION ISSUED U/S. 10(23) OR 10(23C); (II). NOTES ON ACTIVITIES OF THE INSTITUTION OR FUN D SINCE ITS INCEPTION OR DURING THE LAST THREE YEARS, WHICHEVER IS LESS; (III). COPIES OF ACCOUNT OF THE INSTITUTION OR FUND SINCE ITS INCEPTION OR DURING THE LAST THREE YEARS, WHICHEVER IS LESS. 5. SUB-RULE (3) EMPOWERS THE COMMISSIONER TO CALL F OR SUCH DOCUMENTS OR INFORMATION FROM THE INSTITUTION OR FUND OR CAUSE SUCH ENQUIRIES TO BE MADE AS HE MAY DEEM NECESSARY IN ORDER TO SATISFY HIMSELF ABOUT THE GENUINENESS OF THE ACTIVI TIES OF SUCH INSTITUTION. SUB-RULE (4) LAYS DOWN THAT IF ALL THE CONDITIONS AS ENUMERATED IN CLAUSE (1) TO (V) OF SUB-SECTION (5) OF SECTION 80G ARE FULFILLED BY THE INSTITUTION OR FUND, CIT SHALL REC ORD SUCH SATISFACTION IN WRITING AND GRANT APPROVAL TO THE INSTITUTION OR FUND SPECIFYING THE ASSESSMENT YEAR OR YEARS FOR WHICH THE APPROVAL IS VALID. SUB-RULE (5) EMPOWERS THE CIT TO REJECT T HE APPLICATION FOR APPROVAL AFTER RECORDING THE REASONS FOR SUCH REJECTING IN WRITING WHERE THE CIT IS SATISFIED THAT ONE OR MORE CONDITIONS LAID DOWN IN CLAUSE (I) TO (V) OF SECTION 80G(5) ARE NOT FULFILLED. THIS RULE ALSO STATES THAT NO ORDER REJECTING THE APPLICATION SHALL BE PASSED WITHOUT G IVING AN OPPORTUNITY OF HEARING TO THE INSTITUTION OR TRUST. SUB-RULE(6) REQUIRES THE CIT TO PASS AN ORDER GRANTING OR REJECTING THE 5 APPLICATION WITHIN 6 MONTHS FROM THE DATE ON WHICH THE APPLICATION IS MADE. WE NOTED THAT IN THE CASE OF THE ASSESSEE-TRUST, THE CIT WAS OF THE OPIN ION THAT THE ASSESSEE-TRUST HAS NOT COMPLIED WITH THE CONDITIONS NO. (II) AND (III) OF SECTION 8 0G(5). HE IS OF THE OPINION THAT THE TRUST IS EXPRESSED FOR THE BENEFIT OF HINDU RELIGION AND HAS APPLIED THE FUND FOR THE PURPOSE OTHER THAN CHARITABLE AS CONTEMPLATED IN EXPLANATION 3 TO SECT ION 80G(5) IN CONTRAVENTION OF SECTION 80G(5)(II) OF THE INCOME-TAX ACT. THE EXPLANATION 3 TO THIS SECTION LAYS DOWN THAT CHARITABLE PURPOSE DOES NOT INCLUDE ANY PURPOSE THE WHOLE OR S UBSTANTIALLY WHOLE OF WHICH IS OF A RELIGIOUS NATURE. THE MAIN OBJECTION OF THE CIT IS THAT THE O BJECTS AS ENUMERATED IN THE TRUST DEED PROVIDE FOR CONSTRUCTION AND MAINTENANCE OF BRIJ CHAURASI K OSE PARIKRAMA MARG, CONSTRUCTION AND MAINTENANCE OF DHARMASHALAS, TENTS, NIGHT STAY CAMP S ETC. IN BRIJ CHAURASI KOSE PARIKRAMA MARG AND TO PROVIDE ALL FACILITIES TO THE TOURISTS COMING TO HAVE PARIKRAMA OF BRIJ CHAURASI KOS. ACCORDING TO THE CIT THESE OBJECTS ARE OF RELIGIOUS NATURE AND FOR THE BENEFIT OF HINDU COMMUNITY. HE HAS ALSO NOTED THAT A TRUST OR INSTIT UTION IS PERMITTED TO INCUR AN EXPENDITURE NOT EXCEEDING TO 5% OF HIS TOTAL INCOME IN THE PREVIOUS YEAR FOR RELIGIOUS PURPOSE SO THAT IT MAY NOT CONTRAVENE THE CONDITION NO. (II), AS STIPULATED U/ S. 80G(5) OF THE ACT. 6. WE HAVE GONE THROUGH THE RELEVANT OBJECT CLAUS ES WHICH HAVE BEEN REGARDED TO BE OF RELIGIOUS IN NATURE BY THE CIT. THESE CLAUSES STIPU LATE AS UNDER (ENGLISH TRANSLATION AS SUPPLIED TO US) : (B). TO CONSTRUCT THE BRIJ CHAURASI KOS PARIKRAMA WAY AND ITS REPAIRS. (C). TO MAKE CONSTRUCTION OF DHARMSHALA, TENTS, NIG HT STAY CAMPS ETC. IN BRIJ CHAURASI KOSE PARIKRAMA AND TO PROVIDE ALL FACILITIES TO THE PILGRIMS COMING TO HAVE PARIKRAMA OF BRIJ CHAURASI KOS. 6 NOW THE QUESTION ARISES WHETHER THESE OBJECTS CAN BE REGARDED TO BE OF RELIGIOUS NATURE AND THE EXPENDITURE INCURRED FOR FULFILLMENT OF THE SE OBJECTS CAN BE SAID TO HAVE BEEN INCURRED FOR THE BENEFIT OF HINDU COMMUNITY. 7. THE CHARITABLE PURPOSE HAS BEEN DEFINED U/S. 2(1 5) OF THE ACT. THE DEFINITION OF CHARITABLE PURPOSE IS INCLUSIVE ONE. IT INCLUDES RELIEF OF THE POOR, EDUCATION, MEDICAL RELIEF, AND THE ADVANCEMENT OF ANY OTHER OBJECT OF GENERAL PUBLIC U TILITY. THE CONSTRUCTION OF PARIKRAMA WAY AND ITS MAINTENANCE AND THE CONSTRUCTION OF THE DHA RMASHALAS, TENTS, NIGHT STAY CAMPS IN BRIJ CHAURASI KOSE PARIKRAMA MARG AND TO PROVIDE ALL FAC ILITIES TO THE PILGRIMS COMING TO HAVE PARIKRAMA OF BRIJ CHAURASI KOS IS A CHARITABLE PURP OSE WITHIN THE MEANING OF SUB-SEC. (15) OF SECTION 2 OF THE ACT. IT FALLS WITHIN THE ADVANCE MENT OF ANY OTHER OBJECT OF GENERAL PUBLIC UTILITY. THE USE OF THE WORDS OBJECT OF GENERAL PU BLIC UTILITY CAN BE INTERPRETED TO COVER SUCH TRUSTS WHERE THE INTENTION IS TO GIVE BENEFIT TO SI ZABLE MEMBERS OF PUBLIC IN CONTRAST TO INDIVIDUAL OR GROUP OF INDIVIDUALS. ANY PERSON WHO IS GOING TO HAVE BRIJ CHAURASI KOS PARIKRAMA CAN USE ALL THESE FACILITIES. THERE IS NO BAR FOR NOT USING THESE FACILITIES. EVEN THERE IS NO RESTRICTION OR CONDITION IMPOSED WHICH MAY PERMIT THE USE OF BRIJ CHAURASI KOS PARIKRAMA MARG ONLY BY THE PERSONS WHO ARE HAVING FAITH IN A PARTICULAR SECT. THE CONSTRUCTION OF DHARMASHALAS WERE CONSIDERED AS ADVANCEMENT OF THE CHARITABLE PURPOSE OF TRUST WHICH WAS HELD ENTITLED TO EXEMPTION U/S. 11 OF THE INCOME-TAX ACT IN THE CASE OF SATYA VIJAY PATEL HINDU DHARMASHALA TRUST VS. CIT, 86 ITR 683(GUJ.). THE HONBLE RAJASTH AN HIGH COURT IN THE CASE OF RAGUNATH DAS PARIHAR DHARMSHALA VS. CIT, 158 ITR 432 HAS HELD TH AT THE SOLE OBJECT OF THE TRUST WAS TO RUN A DHARMASHALA, WHICH IS AN OBJECT OF GENERAL PUBLIC U TILITY AND SO WHEN THIS WAS THE SOLE OBJECT, THE INCOME DERIVED THERE FROM IN THE SHAPE OF RENT FROM DHARMASHALA IS EXEMPT U/S. 11 READ WITH SUB-SECTION (15) OF SECTION 2. EVEN IN THE CASE OF CIT VS. PARAMHANS ASHRAM TRUST, THE 7 RAJASTHAN HIGH COURT, JAIPUR BENCH HAS HELD THE OBJ ECTS OF THE ASSESSEE-TRUST CONSISTING OF MAINTENANCE OF EXISTING DHARMSHALAS, HELP OF AGARWA LS AND OTHER WIDOWS AND CHILDREN, FEEDING OF MENDICANTS, CONSTRUCTION OF NEW DHARMASHALAS AND SCHOOLS AND HELP OF DESTITUTE TO BE CHARITABLE PURPOSE. WE DO NOT AGREE WITH THE CIT TH AT THE TRUST HAS INCURRED THE EXPENDITURE FOR ANY PURPOSE OTHER THAN CHARITABLE PURPOSE. THIS IS A FACT THAT THE CHARITABLE PURPOSE HAS BEEN DEFINED U/S. 2(15) OF THE ACT, BUT THERE IS NO DEFI NITION OF RELIGIOUS PURPOSE GIVEN IN THE INCOME-TAX ACT. HONBLE SUPREME COURT IN THE CASE O F SURAT ART SILK CLOTH MANUFACTURER ASSOCIATION, 121 ITR 1 HAS LAID DOWN THE FOLLOWING GENERAL PRINCIPLES TO DETERMINE WHEN A PURPOSE WOULD BECOME CHARITABLE. CHARITABLE PURPOSE INCLUDES NOT ONLY RELIEF OF TH E POOR,EDUCATION AND MEDICAL RELIEF ALONE, BUT ADVANCEMENT OF OTHER OBJECTS OF G ENERAL PUBLIC UTILITY AS WELL. SECTION 2(15) IS INTENDED TO SERVE AS A SPECIAL DEF INITION OF THE EXPRESSION CHARITABLE PURPOSE FOR THE ACT. IT IS AGAIN INCLU SIVE AND NOT EXHAUSTIVE. EVEN IF THE OBJECT OR PURPOSE MAY NOT BE REGARDED AS CHARIT ABLE IN ITS POPULAR SIGNIFICATION AS NOT INTENDED TO GIVE RELIEF TO THE POOR OR FOR THE ADVANCEMENT OF EDUCATION OR MEDICAL RELIEF, IT SHOULD STILL BE INC LUDED IN THE EXPRESSION CHARITABLE PURPOSE, IF IT ADVANCES AN OBJECT OF GENERAL PUBLI C UTILITY. THE EXPRESSION OBJECTS OF GENERAL PUBLIC UTILITY, HOWEVER, IS NO T RESTRICTED TO OBJECTS BENEFICIAL TO THE WHOLE OF MANKIND. AN OBJECT BENEFICIAL TO A SEC TION OF THE PUBLIC COULD ALSO BE TREATED AS AN OBJECT OF GENERAL PUBLIC UTILITY. TO SERVE A CHARITABLE PURPOSE, IT IS NOT NECESSARY THAT THE OBJECT SHOULD BE TO BENEFIT THE WHOLE OF MANKIND OR EVEN ALL PERSONS LIVING IN A PARTICULAR COUNTRY OR PROVI NCE. IT IS SUFFICIENT IF THE INTENTION IS TO BENEFIT A SECTION OF THE PUBLIC AS DISTINGUIS HED FROM SPECIFIED INDIVIDUALS. THE SECTION OF THE COMMUNITY SOUGHT TO BE BENEFITED MUST BE UNDOUBTEDLY DEFINED AND IDENTIFIABLE BY SOME COMMON QUALITY OF A PUBLIC OR IMPERSONAL NATURE. WHERE THERE IS NO COMMON QUALITY OF A PUBLI C OR IMPERSONAL NATURE; WHERE THERE IS NO COMMON QUALITY UNITING POTENTIAL BENEFICIARIES INTO A CLASS, IT MAY NOT BE REGARDED AS CHARITABLE. IN VIEW OF THE AFORESAID DICTUM OF LAW PRONOUNCED B Y THE APEX COURT THAT TO SERVE A CHARITABLE PURPOSE IT IS NOT NECESSARY THAT THE OBJECT SHOULD BE TO BENEFIT THE WHOLE OF MANKIND OR ALL PERSONS LIVING IN THE COUNTRY OR PROVINCE. HONBLE APEX COURT HAS CLEARLY HELD THAT IF THE INTENTION IS TO BENEFIT A SECTION OF THE PUBLIC AS DISTINGUISHED FROM SPECIFIED INDIVIDUALS, IT WOULD BE A CHARITABLE PURPOSE. THE SECTION OF THE COMMUN ITY SOUGHT TO BE BENEFITED MUST BE 8 UNDOUBTEDLY DEFINED AND IDENTIFIABLE BY SOME COMMON QUALITY OF A PUBLIC OR IMPERSONAL NATURE. THERE IS NO DOUBT BY THE ACTIVITIES SOUGHT TO BE DO NE OR DONE THE TOURIST FOR BRIJ CHOURASI KOS PARIKARMA ARE BENEFITED. THESE ARE NOT SPECIFIED I NDIVIDUALS BUT THESE MAY BE REGARDED TO BE A SECTION OF THE PUBLIC. THEREFORE, WE ARE OF THE VI EW THAT SUCH PURPOSE CANNOT BE REGARDED TO BE NON-CHARITABLE AND ARE VERY MUCH CHARITABLE PURPOSE AS DEFINED U/S 2(15) OF THE INCOME TAX ACT. WE DO NOT FIND ANY FORCE IN THE SUBMISSION OF THE L EARNED DR THAT THE ASSESSEE-TRUST HAS VIOLATED THE CONDITION AS STIPULATED U/S. 80G(5)(II) OF THE ACT. 8. NOW COMING TO THE QUESTION WHETHER THE ASSESSEE TRUST HAS VIOLATED THE CONDITIONS AS LAID DOWN IN CLAUSE (III) OF SECTION 80G(5), WE REPRODUC E THIS CLAUSE WHICH READS AS UNDER : (III). THE INSTITUTION OR FUND IS NOT EXPRESSED TO BE FOR THE BENEFIT OF ANY PARTICULAR RELIGIOUS COMMUNITY OR CASTE. THIS CLAUSE STIPULATES THAT THE INSTITUTION OR THE TRUST MUST NOT BE FOR THE BENEFIT OF ANY PARTICULAR RELIGIOUS COMMUNITY OR CASTE. THE WORDS RELIGIOUS COMMUNITY MEANS THE GROUP OF PEOPLE HAVING A COMMON RELIGION OR FAITH. THE WORD RELIGI ON MEANS THE BELIEF IN AND WORSHIP TO A SUPERHUMAN CONTROLLING POWER, SPECIALLY THE PERSONA L GOD OR GODS, A PARTICULAR SYSTEM OF FAITH AND WORSHIP. IT MEANS THE TRUST SHOULD NOT BE FOR T HE BENEFIT OF ANY PARTICULAR GROUP OF PERSONS HAVING THE COMMON BELIEF IN WORSHIPING OF SUPERHUMA N CONTROLLING POWER OR HAVING COMMON SYSTEM & FAITH AND WORSHIP. IF THE TRUST IS FOR THE BENEFIT OF ANY PARTICULAR RELIGIOUS COMMUNITY, IT WOULD INCLUDE THE ADVANCEMENT, SUPPORT OR PROPAG ATION OF A RELIGION AND ITS TENANTS, IT COULD BE SAID THAT A TRUST HAS VIOLATED THE CONDITION NO. (I II) OF SECTION 80G(5). THE OBJECTS AS HAS BEEN POINTED OUT BY CIT, NOWHERE TALKS OF ADVANCEMENT, S UPPORT OR PROPAGATION OF A PARTICULAR RELIGION. OBJECT NO. 4(B) DEALS WITH THE CONSTRUCTI ON OF BRIJ CHAURASI KOS WAY AND ITS REPAIR WHILE THE OBJECT NO. 4(C) DEALS WITH CONSTRUCTION O F DHARMASHALAS, TENTS, NIGHT STAY CAMPS ETC. IN 9 BRIJ CHAURASI KOS PARIKRAMA MARG AND TO PROVIDE ALL FACILITIES TO THE TOURISTS COMING TO HAVE PARIKRAMA OF BRIJ CHAURASI KOS. THE CONSTRUCTION OF ROAD OR THE PATH AND THE CONSTRUCTION OF DHARMASHALA, TENTS, NIGHT STAY CAMPS FOR THE PUBLIC AT LARGE, IN OUR OPINION, CANNOT BE REGARDED FOR THE ADVANCEMENT SUPPORT OR PROPAGATION OF A PAR TICULAR RELIGION. NO EVIDENCE OR MATERIAL WAS PLACED ON RECORD OR BROUGHT BEFORE US BY THE LEARNE D DR WHICH MAY PROVE THAT THE USE OF BRIJ CHAURASI KOS PARIKRAMA WAY OR THE DHARMASHALAS, TEN TS, NIGHT STAY CAMPS ARE MADE ONLY FOR THE PUBLIC HAVING FAITH IN A PARTICULAR RELIGION OR THR OUGH THESE THE TRUST WAS ADVANCING OR PROPAGATING THE HINDU RELIGION AS ALLEGED BY CIT. 9. IN THE CASE OF COMMISSIONER OF HINDU RELIGIOUS A ND CHARITABLE ENDOWMENTS MADRAS VS. SRI LAKSHMINDRA THIRTHA SWAMIAR 1954 SCJ335, RELIGI ON HAS BEEN EXPRESSED TO MEAN A MATTER OF FAITH WITH INDIVIDUALS OR COMMUNITIES AND IT IS NOT NECESSARILY THERISTIC. THERE ARE WELL KNOWN RELIGIONS IN INDIA, LIKE BUDDHISM AND JAINISM, WHIC H DO NOT BELIEVE IN GOD OR IN ANY INTELLIGENT FIRST CAUSE. A RELIGION UNDOUBTEDLY HAS ITS BASIS IN A SYSTEM OF BELIEFS OR DOCTRINES WHICH ARE REGARDED BY THOSE WHO PROFESS THAT RELIGION AS COND UCIVE TO THEIR SPIRITUAL WELL BEING, BUT IT WILL NOT BE CORRECT TO SAY THAT RELIGIONS IS NOTHING ELS E BUT A DOCTRINE OR BELIEF. A RELIGION MAY NOT ONLY LAY DOWN A CODE OF ETHICAL RULES FOR ITS FOLLO WERS TO ACCEPT, BUT IT MIGHT PRESCRIBED RITUALS AND OBSERVANCES, CEREMONIES AND MODES OF WORSHIP WH ICH ARE REGARDED AS INTEGRAL PARTS OF A RELIGION, AND THESE FORMS AND OBSERVANCES MIGHT EXT END EVEN TO MATTERS OF FOOD AND DRESS. NO MATERIAL OR EVIDENCE HAS BEEN BROUGHT ON RECORD BY THE DEPARTMENT WHICH MAY PROVE THAT THE TOURISTS USING THE BRIJ CHAURASI KOS PARIKRAMA PATH HAS TO FOLLOW A PARTICULAR CODE OF ETHICAL RULES AND HAS TO CARRY OUT THE PRESCRIBED RITUALS AND OBSERVANCES, CEREMONIES AND MODES OF WORSHIP. THEREFORE, THESE OBJECTS CANNOT BE REGARD ED TO BE THE RELIGIOUS OBJECTS. IN OUR OPINION, UNTIL AND UNLESS THE ACTIVITIES FOR WHICH THE TRUST IS ESTABLISHED, INVOLVE THE ACTIVITY RELIGIOUS 10 PURPOSE, IT CANNOT BE SAID THAT THE ASSESSEE HAS NO T COMPLIED WITH THE CONDITION NO. (III) ENUMERATED U/S. 80G(5) OF THE ACT. 10. EXPLANATION 3 TO SECTION 80G(V) STATES THAT IN THIS SECTION, CHARITABLE PURPOSE DOES NOT INCLUDE ANY PURPOSE THE WHOLE OR SUBSTANTIALLY THE WHOLE OF WHICH IS OF A RELIGIOUS NATURE. THIS EXPLANATION TAKES NOTE OF THE FACT THAT AN INS TITUTION OR FUND SHALL BE FOR A CHARITABLE PURPOSE AND MAY HAVE A NUMBER OF OBJECTS. IF ANY ONE OF THE SE OBJECTS IS WHOLLY OR SUBSTANTIALLY WHOLLY OF A RELIGIOUS NATURE, THE INSTITUTION OR FUNDS FAL LS OUTSIDE THE SCOPE OF SECTION 80G AND THE DONATION TO IT WILL NOT MAKE THE DONOR ENTITLED FOR THE DEDUCTION U/S. 80G. THE OBJECTS AS PER EXPLANATION 3 MUST BE WHOLLY OR SUBSTANTIALLY WHOLE OF WHICH MUST BE OF RELIGIOUS NATURE. THE ASSESSEE HAS SUBMITTED ALL THE EVIDENCE INCLUDING T HE OBJECTS AND HOW THE EXPENDITURE HAS BEEN INCURRED BY IT. THE ONUS, IN OUR OPINION, GETS SHIF TED ON THE REVENUE TO PROVE THAT THE ASSESSEE- TRUST IS WHOLLY OR SUBSTANTIALLY FOR THE RELIGIOUS PURPOSE. NO IOTA OF EVIDENCE IS PLACED ON RECORD BY THE CIT WHILE NOT GIVING APPROVAL TO THE ASSESSE E TRUST U/S. 80G(5)(VI) TO DISCHARGE ITS ONUS. MERELY ALLEGING THAT BRIJ CHAURASI KOS MARG IS MAIN LY USED BY THE TOURISTS WHO COME FOR HAVING PARIKRAMA AND WHO HAVE FAITH IN A PARTICULAR DEITY DOES NOT MEAN THAT THE PURPOSE OF THE TRUST IS WHOLLY OR SUBSTANTIALLY WHOLLY OF RELIGIOUS NATURE RELATING TO THE HINDU COMMUNITY. THERE IS NO ALLEGATION ON THE PART OF THE REVENUE THAT THE WHOL E OR SUBSTANTIALLY WHOLE OF THE OBJECT OF THE TRUST IS TO PROPAGATE OR ADVANCE SUPPORT TO A PARTI CULAR SECT. WE MAY OBSERVE THAT HINDUISM IS A WAY OF LIFE. IT AS SUCH IS NOT A RELIGION. IN THI S REGARD WE RELY ON THE CASE OF T T KUPPUSWAMY CHETTIAR VS. STATE OF TAMIL NADU (1987) 100 LW 1031 IN WHICH IT WAS HELD THE WORD HINDU HAS NOT BEEN DEFINED IN ANY OF THE TEXTS NOR IN JUD GMENT MADE LAW. THE WORD WAS GIVEN BY BRITISH ADMINISTRATORS TO INHABITANTS OF INDIA, WHO WERE NOT CHRISTIANS, MUSLIMS, PARSIS OR JEWS. THE ALLEGED HINDU RELIGION CONSISTS OF FOUR CASTES BRAHMINS, KSHATRIYAS, VAISHYAS AND SUDRAS 11 BELONGING ULTIMATELY TO TWO SCHOOLS OF LAW, MITAKSH ARAS 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 C ONSISTS OF A NUMBER OF COMMUNITIES HAVING THE DIFFERENT GODS WHO ARE BEING WORSHIPPED IN A DI FFERENT MANNER, DIFFERENT RITUALS, DIFFERENT ETHICAL CODES. EVEN THE WORSHIP OF GOD IS NOT ESSEN TIAL 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 SAME LAWS AND REGULATIONS AND WHO HAVE COMMON RIGHT S AND PRIVILEGES. THIS MAY APPLY TO CHRISTIANITY OR MOSLEM BUT NOT TO HINDUISM. THEREF ORE, IT CANNOT BE SAID THAT HINDU IS A SEPARATE COMMUNITY OR A SEPARATE RELIGION. TECHNICALLY HINDU IS NEITHER A RELIGION NOR A COMMUNITY. UNDER THESE FACTS AND CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE CIT IS NOT CORRECT IN LAW IN NOT ALLOWING THE APPROVAL TO THE ASSESSEE TRUST U/S. 80 G OF THE ACT. WE ACCORDINGLY, SET ASIDE THE ORDER OF THE CIT AND DIRECT THE CIT TO GRANT APPROV AL TO THE ASSESSEE-TRUST U/S. 80G(5)(VI) OF THE ACT. 11. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 31.05.11. SD/- SD/- (H.S. SIDHU) (P.K. BANSAL) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 31 ST MAY, 2011 *AKS/- COPY OF THE ORDER FORWARDED TO : BY ORDER 1. APPELLANT 2. RESPONDENT ASSTT. REGISTRAR 3. CIT(A) 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE
