SHRI BAIR SINGH JI NARAYAN SINGH JI MEMORIAL SANSTHAN , BIKANER V. COMMISSIONER OF INCOME TAX (EXEMPTION), JAIPUR

ITA 910/JPR/2018

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 7981 (ITAT-JAIPUR)
• Duration Of Justice: 5 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-12-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: misc
• Appeal Filed On: 24-07-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: V S KOTHARI
• Keywords: Business income; Charitable institution
• Section: 80G; 12AA; 15

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE - B, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA- @ ITA NO. 910/JP/2018 SHRI BAIR SINGH JI NARAYAN SINGH JI MEMORIAL SANSTHAN, BIKANER CUKE VS. COMMISSIONER OF INCOME TAX (EXEMPTIONS), JAIPUR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AANTS3452R VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI VINOD GUPTA (CA) JKTLO DH VKSJ LS @ REVENUE BY : SHRI V. S. KOTHARI (CIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 03/12/2018 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT : 31/12/2018 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF LD. CIT(E), JAIPUR DATED 31.05.2018 PASSED U/S 80G(5)(V I) OF THE ACT. DENYING THE APPROVAL U/S 80G OF THE ACT. 2. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE ASSESSEE IS A SOCIETY REGISTERED WITH REGISTRAR OF SOCIETIES AND ALSO REGISTERED U/S 12AA OF THE ACT VIDE REGISTRATION CERTIFICATE DATED 12.12.2017 ISSUED BY THE LD. CIT(E), JAIPUR. THE ASSESSEE SOCIETY HAS FI LED AN APPLICATION FOR SEEKING REGISTRATION U/S 80G OF THE ACT ON 06.12.20 17 IN PRESCRIBED FORM BEFORE THE LD CIT(E). ON REVIEW OF THE OBJECTS OF THE ASSESSEE ITA NO. 910/JP/2018 SHRI BAIR SINGH JI NARAYAN SINGH JI MEMORIAL SANST HAN, BIKANER VS. CIT(E), JAIPUR 2 SOCIETY AND THE INCOME & EXPENDITURE ACCOUNT FOR TH E F.Y 2013-14, 2014-15 AND 2015-16, THE LD. CIT(E) HAS RECORDED A FINDING THAT THE ASSESSEE SOCIETY HAS INCURRED EXPENSES OF RELIGIOUS NATURE EXCEEDING 5% OF ITS TOTAL INCOME AND IN VIEW OF THE PROVISION S OF SECTION 80G(5B), THE ASSESSEE SOCIETY DOES NOT QUALIFY FOR APPROVAL U/S 80G OF THE ACT. THE RELEVANT FINDINGS OF THE LD CIT(E) ARE CONTAINE D AT PARAS 4 AND 5 OF HIS ORDER WHICH ARE REPRODUCED AS UNDER: 4. WHILE CONSIDERING THE APPROVAL U/S 80G THE NAT URE OF ACTIVITIES UNDER TAKEN BY THE APPLICANT SANSTHAN IS TO BE EXAMINED SO AS TO ASCERTAIN THE CHARITABLE CHARACTER. ON PER USAL OF THE INCOME & EXPENDITURE ACCOUNT FOR THE F.Y 2014-15, I T IS SEEN THAT THE APPLICANT SANSTHAN HAS INCURRED RS. 17,230/- ON MANDIR POOJA EXPENSES WHICH IS RELIGIOUS NATURE. THIS EXP ENSES IS 5.73% OF TOTAL RECEIPTS OF RS. 3,00,627/-. THUS EXP ENSES INCURRED ON THE RELIGIOUS ACTIVITIES BY THE ASSESSEE ARE MOR E 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 O R FUND WHICH INCURS EXPENDITURE, DURING ANY PREVIOUS YEAR, WHICH IS OF A RELIGIOUS NATURE FOR AN AMOUNT NOT EXCEEDIN G FIVE PER CENT OF ITS TOTAL INCOME IN THAT PREVIOUS YEAR SHALL BE DEEMED TO BE AN INSTITUTION OR FUND TO WHICH THE PR OVISIONS OF THIS SECTION APPLY]. ITA NO. 910/JP/2018 SHRI BAIR SINGH JI NARAYAN SINGH JI MEMORIAL SANST HAN, BIKANER VS. CIT(E), JAIPUR 3 THE PLAIN READING OF SECTION 80G(5) AND 80G (5B) SU GGESTS THAT THIS SECTION APPLIES ONLY TO THE CHARITABLE INSTITU TION/FUND. IT ALSO INDICATE THAT IF THE INSTITUTION/FUND INCURS EXPENS ES OF RELIGIOUS NATURE NOT EXCEEDING 5% OF TOTAL INCOME THAN ALSO I T WILL BE ELIGIBLE FOR APPROVAL U/S 80G. BUT IF THE EXPENSES OF RELIGIOUS NATURE EXCEED 5% OF TOTAL INCOME, THE INSTITUTION/F UND 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 SUBMI TTED THAT DURING PROCEEDINGS BEFORE LD. CIT(EXEMPTION), ALL THE DOCU MENTS REQUIRED BY HIM VIDE LETTER DATED 13.12.2017 WERE FURNISHED APA RT FROM FORM 10G AND ENCLOSURES THERETO. THESE DOCUMENTS ALSO CONTAI N THE FINANCIAL STATEMENTS OF FINANCIAL YEARS 2013-14, 2014-15 AND 2015-16. IN PARA 4 OF HIS ORDER, IT HAS BEEN POINTED OUT BY THE LD CIT (E) THAT APPLICANT SOCIETY HAVE INCURRED RS. 17,230/- ON MANDIR POOJA EXPENSES AS APPEARING IN INCOME & EXPENDITURE ACCOUNT FOR FINAN CIAL YEAR 2014-15 WHICH IS 5.73% OF THE TOTAL RECEIPTS OF RS. 3,00,62 7/-. IT IS FURTHER OBSERVED THAT THESE EXPENDITURE ARE RELIGIOUS IN NA TURE AND, THEREFORE, SOCIETY UNDER CONSIDERATION IS NOT CHARITABLE INSTI TUTION AS DEFINED U/S 80G(5B). 3.1 IT WAS SUBMITTED BY THE LD AR THAT A PERUSAL OF THE OBJECT OF THE SOCIETY SHOWS THAT APART FROM OTHER OBJECTS, SOCIET Y HAS OBJECT OF PRESERVATION AND PROMOTION OF TEMPLE, DHARMSHALA, R ELIGIOUS PLACES, AASHRAMS OR HISTORIC BUILDINGS. ASSESSEE SOCIETY IN CURRED EXPENDITURE GROUPED UNDER MANDIR POOJA EXPENSES ON OLD MANDIR S AY APPROX 100 ITA NO. 910/JP/2018 SHRI BAIR SINGH JI NARAYAN SINGH JI MEMORIAL SANST HAN, BIKANER VS. CIT(E), JAIPUR 4 YEARS OLD SITUATED AT JOGALSAR VILLAGE NEAR BIKANER . THAT VILLAGE IS HAVING POPULATION APPROX 6000. THE BUILDING IS HAVING HIST ORICAL IMPORTANCE IN THE AREA. THE BUILDING IS VISITED BY ALL LOCALS IRR ESPECTIVE OF CASTE, CREED OR GENDER BUT ONLY DUE TO ITS HISTORICAL IMPORTANCE . IN THE LOCAL AREA, SAID BUILDING IS BELIEVED TO BE A PLACE WHERE PEOPL E FEEL SPIRITUAL AND SEEK MENTAL ENRICHMENT. IN SUCH SMALL PLACES, IT IS A BIG TEMPLE BUILDING AND COMMON PLACE OF THE VILLAGE WHERE PEOPLE VISITS TO GET SPIRITUAL AND MENTAL ENRICHMENT IRRESPECTIVE OF CASTE, CREED OR G ENDER. THE POOJA IS PERFORMED REGULARLY BY THE LOCALS AT THEIR EXPENSES IN THE SAID TEMPLE. HOWEVER, CERTAIN EXPENSES WHICH ARE ALSO IN PART LI KE: CLEANING, MAINTENANCE, PRASAD SOME TIME FOR DISTRIBUTION, AGA RBATTI ETC. HAVE BEEN CONTRIBUTED BY THE ASSESSEE SOCIETY. THE CONTR IBUTIONS HAVE BEEN MADE ONLY TO KEEP ALIVE THE INTEREST OF THE LOCALS IN THE SAID OLD HERITAGE TEMPLE WHICH IS ANCILLARY TO THE MAIN OBJECT OF THE ASSESSEE TO PRESERVE OR PROMOTE SUCH OLD TEMPLE BUILDING. UNDER THE FACT S AND CIRCUMSTANCES, PRESERVATION AND PROMOTION OF SUCH B UILDINGS CANNOT BE HELD AS RELIGIOUS IN NATURE. 3.2 IT WAS SUBMITTED THAT THE LD. CIT(E) HAS ERRED BY NOT APPRECIATING THE FACT THAT THE TEMPLE UNDER CONSIDERATION IS SIT UATED IN A VERY SMALL PLACE AND HAVE SPIRITUAL IMPORTANCE FOR ENTIRE POPU LATION OF THE AREA HAVING HISTORICAL IMPORTANCE AS WELL AS THAT AREA I S NOT HAVING SUCH BIG BUILDING AVAILABLE FOR COMMON ASSEMBLY OR PERFORMIN G COMMON FUNCTION OF SOCIAL IMPORTANCE AT LARGE. MERELY ON THE BASIS OF PRESENTATION IN INCOME & EXPENDITURE, A CONCLUSION HAS BEEN DRAWN B Y THE LD CIT(E). IT IS IMPORTANT TO NOTE THAT ASSESSEE HAS USED THE TEM PLE ACCOMMODATION FOR TRAINING OF STITCHING TO THE LOCAL WOMEN FROM T IME TO TIME. THE ITA NO. 910/JP/2018 SHRI BAIR SINGH JI NARAYAN SINGH JI MEMORIAL SANST HAN, BIKANER VS. CIT(E), JAIPUR 5 RELEVANT PAPER CUTTINGS IS ALSO ENCLOSED (PBP 25-33 ). THE ASSESSEE IS ALSO RUNNING AND MAINTAINING A TEMPO TO COLLECT GAR BAGE UNDER SWACH BHARAT MISSION. THE RELEVANT PAPER CUTTING IS ALSO ENCLOSED (PBP 34- 37). THE SAID TEMPO IS ALSO PARKED IN THE TEMPLE PR EMISES. THESE SHOW THE TEMPLE PREMISES ARE ALWAYS AVAILABLE AND USED B Y THE ASSESSEE TO PURSUE ITS MAIN OBJECT. IT IS OBVIOUS THAT UNDER TH ESE CIRCUMSTANCES, OTHERWISE ALSO, ASSESSEE SOCIETY HAVE CERTAIN OBLIG ATIONS TO TEMPLE MANAGEMENT. CONTRIBUTION MADE IS INSIGNIFICANT IN C OMPARISON TO THE REGULAR BENEFIT TAKEN BY THE SOCIETY FREE OF COST F ROM 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 O F MIND. IN SUPPORT, RELIANCE WAS PLACED ON THE DECISION OF ITAT NAGPUR IN CASE OF SHIV MANDIR DEVSTTAN PANCH COMMITTEE SANSTHAN VS. CIT-1, NAGPUR (ITA NO. 223/NAGPUR/2009 VIDE ORDER DATED 11.10.201 2) WHEREIN IN PARA 12 OF THE ORDER, IT WAS HELD AS UNDER: 12. EVEN WE NOTED THAT ALL THE BUILDING MAINTENANC E EXPENSES. FREE FOOD EXPENSES AND FESTIVAL, PRAYER AND DAILY E XPENSES CANNOT BE REGARDED TO BE THE ONE INCURRED FOR RELIGIOUS OB JECT, EVEN IF THE OBJECT IS REGARDED TO BE RELIGIOUS ONE. IT IS N OT DENIED THAT IN THE BUILDING THE ASSESSEE WAS CARRYING YOGA CENTRE, TAILORING TRAINING CENTRE AS WELL AS FOOD FOR THE NEEDY AND O PTICAL CENTRE FOR THE POOR. ITA NO. 910/JP/2018 SHRI BAIR SINGH JI NARAYAN SINGH JI MEMORIAL SANST HAN, BIKANER VS. CIT(E), JAIPUR 6 3.3 IT WAS FURTHER SUBMITTED THAT EVEN OTHERWISE, M ANDIR POOJA EXPENSES ARE NOT RELIGIOUS IN NATURE AND RELIANCE W AS PLACED ON FOLLOWING CASE LAWS: A. HONBLE RAJASTHAN HIGH COURT IN CASE OF UMAID CHARITABLE TRUST VS. THE UNION OF INDIA (ORDER DATED 02.05.2008) WHEREIN IT WAS HELD AS UNDER: 30. I HAVE HEARD THE LEARNED COUNSEL FOR THE PARTI ES AT LENGTH AND GIVEN MY THOUGHTFUL CONSIDERATION TO THE FACTS OF THE PRESENT CASE AND THE CASE LAWS CITED AT THE BAR. 31. THIS C OURT IS OF THE CONSIDERED OPINION THAT MERE ONE CONTRIBUTION BY TH E CHARITABLE TRUST TO ANOTHER TRUST WHICH CARRIED OUT REPAIR AND RENOVATION OF LORD VISHNU'S TEMPLE DOES NOT DISENTITLE THE PETITI ONER - TRUST FROM RENEWAL OF ITS EXEMPTION CERTIFICATE UNDER SEC TION 80G OF THE ACT. THE LINE OF DISTINCTION BETWEEN RELIGIOUS PURPOSES AND CHARITABLE PURPOSES IS VERY THIN AND AND NO WATER T IGHT COMPARTMENT BETWEEN THE TWO ACTIVITIES CAN BE VERY WELL ESTABLISHED. UNLESS OBJECTIVE OF THE CHARITABLE TRU ST IN QUESTION ITSELF IS FOR SPENDING ITS INCOME FOR A PARTICULAR RELIGION AND IT IS SO FOUND IN THE TRUST-DEED, THE INCOME TAX DEPARTMENT CANNOT REJECT THE RENEWAL OF THE TRUST AS CHARITABLE TRUST UNDER SECTION 80G OF THE ACT MERELY BECAUSE ONE PARTICULAR EXPEND ITURE IS FOR AN ACTIVITY WHICH MAY BE TERMED AS SPENDING FOR A P ARTICULAR RELIGION. IN THE PRESENT CASE THE REPAIR AND RENOVA TION OF LORD VISHNU'S TEMPLE DOES NOT NECESSARILY MEAN THAT EXPE NDITURE IN QUESTION WAS FOR A PARTICULAR RELIGION ONLY. ITA NO. 910/JP/2018 SHRI BAIR SINGH JI NARAYAN SINGH JI MEMORIAL SANST HAN, BIKANER VS. CIT(E), JAIPUR 7 31. ALL PEOPLE WHO HAVE FAITH IN LORD VISHNU'S TEM PLE BELONG TO DIFFERENT SECTS AND HAVE FAITH IN DIFFERENT RELIGIO NS AND ALSO VISIT SUCH TEMPLE OF LORD VISHNU. THE REVENUE HAS NOT SHO WN THAT ENTRY IN THE SAID TEMPLE WAS RESTRICTED TO THE PERS ONS OF ONE PARTICULAR COMMUNITY OR SECT PRACTICING ONE RELIGIO N. HINDUISM IS NOT ONE PARTICULAR RELIGION AND DIFFERENT SECTS FOL LOWING HINDU PHILOSOPHY DO VISIT TEMPLES OF LORD VISHNU, BE THAT JAINS, SIKHS, BRAHMINS ETC. THERE IS NO WATER TIGHT COMPARTMENT B ETWEEN DIFFERENT CASTES OR SECTS FOLLOWING ONE PARTICULAR RELIGION. FREEDOM OF RELIGION IS GUARANTEED IN THE CONSTITUTION OF IN DIA UNDER ARTICLE 25 OF THE CONSTITUTION OF INDIA. THEREFORE, TAKING SUCH A PEDANTIC AND NARROW APPROACH, IT CANNOT BE SAID THAT CHARACT ER OF THE CHARITABLE TRUST IS LOST IF ONE PARTICULAR EXPENDIT URE IS MADE FOR REPAIR AND RENOVATION OF LORD VISHNU'S TEMPLE AND T HAT TOO BY WAY OF CONTRIBUTION TO ANOTHER TRUST. A PERUSAL OF THE TRUST-DEED OF THE PETITIONER PRODUCED ON RECORD SHOWS THAT OBJ ECTIVE OF THE TRUST WAS CLEARLY CHARITABLE AND WAS NOT FOR ANY PA RTICULAR RELIGION EVEN WHOLLY OR SUBSTANTIALLY. NOTHING HAS BEEN POIN TED OUT IN THE IMPUGNED ORDER THAT THE PETITIONER TRUST HAS BEEN C ONSTANTLY SPENDING MONEY FOR A PARTICULAR RELIGION. ONE SHOUL D 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 RADHA KRISHNA MANDIR FOUNDATION VS. CIT-II, JAIPUR (ITA NO. 814/JP/2012 DATED 29.05.2013) HAS HELD AS UNDER: ITA NO. 910/JP/2018 SHRI BAIR SINGH JI NARAYAN SINGH JI MEMORIAL SANST HAN, BIKANER VS. CIT(E), JAIPUR 8 2.4 .PRESERVE ANCIENT HERITAGE PROPERTY & TEMPLES IN CASE OF TAKE OVER. I) TO DO PRESERVE OF ANCIENT PROPERTY LIKE FORT, PL ACES, HERITAGE PROPERTY, TEMPLE, ETC. II) IN CASE OF TAKEOVER, THE TRUST SHALL MAINTAIN T HE TEMPLE WORSHIP, PUJA, FESTIVALS ACCORDING TO THE SAMPRADAY A IN WHICH THE TEMPLE BELONG TO. III) IN CASE OF THE TRUST TAKE OVER AN EXISTING TEM PLE OF VALLABHA SAMPRADAYA THE TRUST WILL WORK AND MAINTAIN ACCORDI NG TO THE VALLABHA SAMPRADAYA.' FROM BARE READING OF THE ABOVE OBJECTS WHAT WE UNDE RSTAND IS THAT NONE OF THE OBJECTS ARE NON-CHARITABLE OR FOR THE BENEFIT OF ANY INDIVIDUAL OR GROUP OF INDIVIDUAL. THEREFORE, T HE OBJECTS (ORIGINAL AS WELL AS NEWLY ADDED) ARE CHARITABLE IN NATURE. 2.8 THE NEXT OBJECTION OF THE LD. CIT IS REGARDING MAINTENANCE OF TEMPLE SITUATED AT AKSHYA PATRA AND AKSHYA PATRA FO UNDATION. THE LD. CIT HAS RAISED THE QUESTION THAT THE ASSESS EE IS NOT AUTHORIZED BY FOUNDATION TO LOOK AFTER THE MANAGEME NT OF THE TEMPLE AS NO AUTHORIZATION LETTER HAS BEEN PRODUCED BY THE ASSESSEE. IT IS PERTINENT TO NOTE THAT EVEN IF THER E IS NO WRITTEN AUTHORIZATION PRODUCED BY THE ASSESSEE, THE ACTIVIT Y OF MAINTENANCE AND MANAGEMENT OF TEMPLE ITSELF IS A CH ARITABLE IN NATURE AND THEREFORE, NON-PRODUCTION OF AUTHORIZATI ON WOULD NOT CHANGE THE NATURE OF THE ACTIVITIES UNDERTAKEN BY T HE ASSESSEE. THUS THE EXPENDITURE INCURRED BY THE ASSESSEE IN RE LATION TO THE ITA NO. 910/JP/2018 SHRI BAIR SINGH JI NARAYAN SINGH JI MEMORIAL SANST HAN, BIKANER VS. CIT(E), JAIPUR 9 ACTIVITY OF MAINTENANCE AND MANAGEMENT OF TEMPLE WO ULD BE THE EXPENDITURE FOR CHARITABLE WORK. 2.9 THE ANOTHER OBJECTION RAISED BY THE LD. CIT IS BASED ON THE REPORT OF THE AO THAT AS PER THE NEWLY ADDED OBJEC TS, THE ASSESSEE TRUST SHALL MAINTAIN THE TEMPLE WORSHIP, P OOJA, FESTIVALS ACCORDING TO SAMPRADAYA IN WHICH THE TEMPLE BELONGS TO. WE DO NOT FIND THAT SUCH AN ACTIVITY OF MAINTAINING THE T EMPLE AS PER RITS AND RITUALS OF PARTICULAR SAMPRADAYA TO WHICH THE T EMPLE BELONGS WOULD AMOUNT THE ACTIVITY RELATED TO A PARTICULAR R ELIGION OR COMMUNITY. WHEN THE TEMPLES WHICH ARE SUPPOSED TO M AINTAIN BY THE ASSESSEE ARE OPEN FOR GENERAL PUBLIC THEN PE RFORMING POOJA OR FESTIVALS IN A PARTICULAR MANNER DOES NOT CHANGE THE PUBLIC CHARITABLE NATURE OF THE ACTIVITIES TO NON-C HARITABLE. EVEN OTHERWISE THE OBJECTS OF ASSESSEE TRUST DO NOT SPEC IFY THE MAINTENANCE OF ANY SPECIFIC OR PARTICULAR TEMPLE BE LONGING TO A SPECIFIC SAMPRADAYA AND IF A TEMPLE WHICH IS MAINTA INED BY THE ASSESSEE KEEPING IN VIEW ALL THE RITS AND RITUALS B EING FOLLOWED IN THE SAID TEMPLE AS PER PARTICULAR SAMPRADAYA, THE S AME WOULD BE IRRELEVANT FOR THE PURPOSE OF CONSTRUING THE OBJECT S 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). T HE OBJECT CLAUSE OF THE TRUST READS AS UNDER: ITA NO. 910/JP/2018 SHRI BAIR SINGH JI NARAYAN SINGH JI MEMORIAL SANST HAN, BIKANER VS. CIT(E), JAIPUR 10 WORSHIP OF LORD SHIVA , HANUMANJI, GODDESS DURGA A ND MAINTAINING OF TEMPLE. TO CELEBRATE FESTIVALS LIKE SHIVRATRI, HANUMAN JAYANTI, GANESH UTTASAV, MAKAR SANKRANTI, R ENOVATION AND MAINTENANCE OF TEMPLE. TO MAKE AVAILABLE TEMPLE FOR GENERAL PUBLIC AND TO PROVIDE FACILITIES FOR THE PUBLIC VIS ITING 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, SPO RTS CLUB, HOSTELS AND OTHER ACTIVITIES. TO HELP POOR CHILDREN FOR EDU CATION. TO PROVIDE MEDICAL AID FOR POOR. TO HELP THE PEOPLES A FFECTED BY NATURAL CALAMITY. NOW THE QUESTION ARISE WHETHER THESE OBJECTS CAN BE REGARDED TO BE OF RELIGIOUS NATURE AND THE EXPENDITURE INCURRED FOR THE FULFILLMENT OF THESE OBJECTS CAN BE SAID TO HAVE BE EN INCURRED FOR THE BENEFIT OF PARTICULAR RELIGION. 9. THE CHARITABLE PURPOSE HAS BEEN DEFINED U/S. 2( 15) OF THE ACT. THE DEFINITION OF CHARITABLE PURPOSE IS INCLUS IVE ONE. IT INCLUDES RELIEF OF THE POOR, EDUCATION, MEDICAL REL IEF, AND THE ADVANCEMENT OF ANY OTHER OBJECT OF GENERAL PUBLIC U TILITY. THE OBJECTS AS ENUMERATED ABOVE HELD ON BY THE ASSESSEE TRUST ARE CHARITABLE WITHIN THE MEANING OF SECTION 2 OF SUB S ECTION 15. SOME OF THE OBJECTS FALL WITHIN THE ADVANCEMENT OF ANY OTHER OBJECT OF GENERAL PUBLIC UTILITY. PROVISO TO SECTI ON 2 SUB SECTION 15 RESTRICTS THE MEANING ADVANCEMENT OF ANY OTHER OBJECTS OF GENERAL PUBLIC UTILITY. BUT CIT(A) HAS NOT STATED THAT PROVISO TO SECTION 2 SUB SECTION 15 IS APPLICABLE IN THE CASE OF THE ASSESSEE. ITA NO. 910/JP/2018 SHRI BAIR SINGH JI NARAYAN SINGH JI MEMORIAL SANST HAN, BIKANER VS. CIT(E), JAIPUR 11 10. NOW COMING TO THE QUESTION WHETHER THE ASSESSEE TRUST HAS VIOLATED THE CONDITIONS AS LAID DOWN IN CLAUSE (III) OF SECTION 80G(5), WE REPRODUCE THIS CLAUSE WHICH READS AS UND ER: '(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 COMMUNI TY OR CASTE. THE WORDS 'RELIGIOUS COMMUNITY' MEANS THE GROUP OF PEOP LE HAVING A COMMON RELIGION OR FAITH. THE WORD 'RELIGION' MEANS THE BELIEF IN AND WORSHIP TO A SUPERHUMAN CONTROLLING POWER, SPEC IALLY THE PERSONAL GOD OR GODS, A PARTICULAR SYSTEM OF FAITH AND WORSHIP. IT MEANS THE TRUST SHOULD NOT BE FOR THE BENEFIT OF AN Y PARTICULAR GROUP OF PERSON HAVING THE COMMON BELIEF IN WORSHIP ING OF SUPERHUMAN CONTROLLING POWER OR HAVING COMMON SYSTE M & FAITH AND WORSHIP. IF THE TRUST IS FOR THE BENEFIT OF ANY PARTICULAR COMMUNITY. IT WOULD INCLUDE THE ADVANCEMENT, SUPPOR T OR PROPAGATION OF A PARTICULAR RELIGION, WORSHIPPING O F LORD SHIVA, HANUMANJI. GODDESS. DURGA AND MAINTAINING OF TEMPLE TEMPLE, IN OUR OPINION, CANNOT BE REGARDED FOR THE ADVANCEMENT SUPPORT OR PROPAGATION OF A PARTICULAR RELIGION. NO EVIDENCE O R MATERIAL WAS PLACED ON RECORD OR BROUGHT BEFORE US BY THE LEARNE D DR WHICH MAY PROVE THAT THESE OBJECT RELATE TO A PARTICULAR RELIGION. NO DOUBT THE DR ARGUED THAT IT RELATE TO HINDU RELIGIO N BUT IN OUR OPINION IT IS NOT SO, LORD SHIVA. HANUMANJI, GODDES S DURGA DOES NOT REPRESENT ANY PARTICULAR RELIGIONS, THEY ARE ME RELY REGARDED TO BE THE SUPER POWER OF THE UNIVERSE. ITA NO. 910/JP/2018 SHRI BAIR SINGH JI NARAYAN SINGH JI MEMORIAL SANST HAN, BIKANER VS. CIT(E), JAIPUR 12 11. IN THE CASE OF COMMISSIONER OF HINDU RELIGIOUS AND CHARITABLE ENDOWMENTS MADRAS VS. SRI LAKSHMINDRA TH IRHJA 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 RELIGIO US IN INDIA, LIKE BUDDHISM AND JAINISM, WHICH DO NOT BELIEVE IN GOD O R 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 SPIRITU AL WELL BEING, BUT IS WILL NOT BE CORRECT TO SAY THAT RELIGIONS IS NOT HING ELSE BUT A DOCTRINE OR BELIEF. A RELIGION MAY NOT ONLY LAY DOW N A CODE OF ETHICAL RULES FOR ITS FOLLOWERS TO ACCEPT, BUT IT M IGHT PRESCRIBED RITUALS AND OBSERVANCES, CEREMONIES AND MODES OF WO RSHIP WHICH ARE REGARDED AS INTEGRAL PARTS OF A RELIGION, AND T HESE FORMS AND OBSERVANCES MIGHT EXTENT EVEN TO MATTERS OF FOOD AN D DRESS. NO MATERIAL OR EVIDENCE HAS BEEN BROUGHT ON RECORD BY THE DEPARTMENT WHICH MAY PROVE THAT ANY PERSON COMING. WORSHIPPING AND MAINTAINING THE TEMPLE HAS TO FOLLO W A PARTICULAR CODE OF ETHICAL RULES AND HAS TO CARRY OUT THE PRES CRIBED RITUALS AND OBSERVANCES, CEREMONIES AND MODES OF WORSHIP. T HE ENTRY IS NOT RESTRICTED TO A PARTICULAR GROUP OF PERSONS. AN Y BODY WHETHER WANT TO WORSHIP OR NOT AND WANT TO MAINTAIN OR NOT CAN COME TO THE TEMPLE AND AVAIL OF ALL THE FACILITIES AVAILABL E TO THE PROFIT AT LARGE. THEREFORE, THESE OBJECTS CANNOT BE REGARDED TO BE THE RELIGIOUS OBJECTS. IN OUR OPINION, UNTIL AND UNLESS THE ACTIVITIES FOR WHICH THE TRUST IS ESTABLISHED, INVOLVE THE ACTIVIT Y RELIGIOUS ITA NO. 910/JP/2018 SHRI BAIR SINGH JI NARAYAN SINGH JI MEMORIAL SANST HAN, BIKANER VS. CIT(E), JAIPUR 13 PURPOSE, IT CANNOT BE SAID THAT THE ASSESSEE HAS NO T COMPLETED WITH THE CONDITION NO. (III) ENUMERATED U/S. 80G(5) OF THE ACT. 12. EVEN WE NOTED THAT ALL THE BUILDING MAINTENANCE EXPENSES. FREE FOOD EXPENSES AND FESTIVAL, PRAYER AND DAILY E XPENSES CANNOT BE REGARDED TO BE THE ONE INCURRED FOR RELIGIOUS OB JECT, EVEN IF THE OBJECT IS REGARDED TO BE RELIGIOUS ONE. IT IS N OT DENIED THAT IN THE BUILDING THE ASSESSEE WAS CARRYING YOGA CENTRE, TAILORING TRAINING CENTRE AS WELL AS FOOD FOR THE NEEDY AND O PTICAL CENTRE FOR THE POOR. 13. EXPLANATION 3 TO SECTION 80G(V) STATES THAT 'IN THIS SECTION. 'CHARITABLE PURPOSE' DOES NOT INCLUDE ANY PURPOSE T HE WHOLE OR SUBSTANTIALLY THE WHOLE OF WHICH IS OF A RELIGIOUS NATURE.' THIS EXPLANATION TAKES NOTE OF THE FACT THAT AN INSTITUT ION OR FUND SHALL BE FOR A CHARITABLE PURPOSE AND MAY HAVE A NUMBER O F OBJECTS. IF ANYONE OF THESE OBJECTS IS WHOLLY OR SUBSTANTIALLY WHOLLY OF A RELIGIOUS NATURE, THE INSTITUTION OR FUNDS FALLS OU TSIDE THE SCOPE OF SECTION 80G AND THE DONATION TO IT WILL NOT MAKE TH E DONOR ENTITLED FOR THE DEDUCTION U/S80G. THE OBJECTS AS P ER EXPLANATION 3 MUST BE WHOLLY OR SUBSTANTIALLY WHOSE OF WHICH MU ST BE OF RELIGIOUS NATURE. THE ASSESSEE HAS SUBMITTED ALL TH E EVIDENCE INCLUDING THE OBJECTS AND HOW THE EXPENDITURE HAS B EEN INCURRED BY IT. THE ONUS, IN OUR OPINION, GETS SHIFTED ON TH E REVENUE TO PROVE THAT THE ASSESSEE-TRUST IS WHOLLY OR SUBSTANT IALLY FOR THE RELIGIOUS PURPOSE. THERE IS NO ALLEGATION ON THE PA RT OF THE REVENUE THAT THE WHOLE OR SUBSTANTIALLY WHOLE OF TH E OBJECT OF THE TRUST IS TO PROPAGATE OR ADVANCE SUPPORT TO A PARTI CULAR SECT. WE ITA NO. 910/JP/2018 SHRI BAIR SINGH JI NARAYAN SINGH JI MEMORIAL SANST HAN, BIKANER VS. CIT(E), JAIPUR 14 MAY OBSERVE THAT HINDUISM IS A WAY OF LIFE OF A CIV ILIZED SOCIETY. IT AS SUCH IS NOT A RELIGION. IN THIS REGARD WE RELY O N 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 W ORD WAS GIVEN BY BRITISH ADMINISTRATORS TO INHABITANTS OF I NDIA, WHO WERE NOT CHRISTIANS MUSLIMS, PARIS OR JEWA. THE ALLEGED HINDU RELIGION CONSISTS OF FOUR CASTES BRAHMINS, KSHATRIYAS, VAISH YAS AND SUDRAS BELONGING ULTIMATELY TO TWO SCHOOLS OF LAW, MITASHA RAS AND DAYABHAGA. THERE IS, HOWEVER, NO RELIGION BY THE NA ME HINDU'. IT ONLY SHOWS THAT SO CALLED HINDU RELIGION HAS BEEN C ALLED 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 DIFFERENT 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 H INDUISM HOLDS WITHIN ITS FOLD MEN OF DIVERGENT VIEWS AND TR ADITIONS 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 MOSLE M BUT NOT TO HINDUISM. THEREFORE, IT CANNOT BE SAID THAT HINDU I S A SEPARATE COMMUNITY OR A SEPARATE RELIGION. TECHNICALLY HINDU IS NEITHER A RELIGION NOR A COMMUNITY. THEREFORE, EXPENSES INCUR RED FOR WORSHIPPING OF LORD SHIVA. HANUMAN, GODDESS DURGA A ND FOR MAINTENANCE OF TEMPLE CANNOT BE REGARDED TO BE FOR RELIGIOUS ITA NO. 910/JP/2018 SHRI BAIR SINGH JI NARAYAN SINGH JI MEMORIAL SANST HAN, BIKANER VS. CIT(E), JAIPUR 15 PURPOSE. UNDER THESE CIRCUMSTANCES, WE ARE OF THE V IEW THAT THE CIT IS NOT CORRECT IN LAW IN NOT ALLOWING THE APPRO VAL TO THE ASSESSEE TRUST U/S. 80G 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. D. ITAT AGRA IN CASE OF RADHA RAMAN NIWAS TRUST VS. CIT-I, AGRA (ITA NO. 541& 542/AGRA/2012 DATED 22.03.2013) HAS GIVEN DECISION IN FAVOUR OF ASSESSEE BY RELYING ON ABOVE REFERRED JUDGEMENT JUDGEMENT OF HONBLE ITAT NAGPUR IN CASE OF SHIV MA NDIR DEVSTTAN PANCH OMMITTEE SANSTHAN. E. HONBLE GUJARAT HIGH COURT IN CASE OF HIRALAL BHAGWATI VS. COMMISSIONER OF INCOME-TAX (2000) 246 ITR 188 HAS HELD THAT: 30. IN THE RESULT, WE ALLOW THIS PETITION AND WE Q UASH AND SET ASIDE AN ORDER REJECTING THE APPLICATION FOR EXEMPT ION UNDER S. 80G(5) OF THE ACT, WITH A DIRECTION TO DECIDE THE S AME IN ACCORDANCE WITH LAW. THE PROCEEDINGS INITIATED UNDE R S. 148 OF THE IT ACT AGAINST THE ASSESSEE FOR THE ASST. YR. 1 984-85, AND THE NOTICES ISSUED UNDER SS. 271(1)(A), 271(I)(C) AND 2 73(2)(B) FOR THE ASST. YR. 1985-86 ARE HEREBY QUASHED AND SET AS IDE. RULE IS MADE ABSOLUTE TO THE AFORESAID EXTENT. 3.4 IT WAS FURTHER SUBMITTED THAT THE LD. CIT(E) HA S MERELY PROCEEDED IN MECHANICAL MANNER TO DERIVE CONCLUSION AND REJEC TED THE APPLICATION BY HOLDING THAT IN ONE OF THE THREE FINANCIAL YEARS I.E. F.Y 2014-15, MANDIR POOJA EXPENSES IS 5.73% OF THE TOTAL RECEIPT S WHICH IS IN EXCESS OF 5% TO THE TOTAL RECEIPTS. IT WAS SUBMITTED THAT THE LD. CIT(E) HAS ITA NO. 910/JP/2018 SHRI BAIR SINGH JI NARAYAN SINGH JI MEMORIAL SANST HAN, BIKANER VS. CIT(E), JAIPUR 16 TAKEN THE MANDIR POOJA EXPENSES FROM THE FACE OF TH E INCOME & EXPENDITURE ACCOUNT WITHOUT GOING INTO THE ACTUAL N ATURE OF EXPENDITURE DEBITED IN SAID LEDGER. 3.5 IT WAS FURTHER SUBMITTED THAT EVEN FOR CALCULAT ION OF PERCENTAGE OF MANDIR POOJA EXPENSES, LD. CIT(E) USED TOTAL REC EIPTS, WHEREAS, THE RELEVANT SECTION USED THE WORD TOTAL INCOME. IN T HAT CASE, ASSESSEE HAVE RECEIVED VOLUNTARY CONTRIBUTION AND BANK INTER EST, DOES NOT HAVE ANY BUSINESS INCOME, INCOME FROM HOUSE PROPERTY OR ANY OTHER SOURCE OF INCOME. THE TERM TOTAL INCOME HAS ALSO NOT DEF INED. 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 CO NSIDERED 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 VOLUNTA RY CONTRIBUTION AND BANK INTEREST, THERE IS ACCOMMODATED INCOME AS WELL . LD. CIT(E) HAS NOT INCLUDED THAT ACCUMULATED INCOME I.E. RS. 87,21 2/-. AFTER INCLUDING THAT AMOUNT, THE TOTAL INCOME COMES TO RS. 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 TH E 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 INSTI TUTION TO WHICH THIS SECTION APPLIES. SECTION 80G(5) IS ABOUT TO WHICH F UND OR INSTITUTION ITA NO. 910/JP/2018 SHRI BAIR SINGH JI NARAYAN SINGH JI MEMORIAL SANST HAN, BIKANER VS. CIT(E), JAIPUR 17 REFERRED IN SECTION 80G(2)(IV), IT WILL APPLY. PERU SAL OF ALL ABOVE SECTIONS IN MEANINGFUL MANNER, IT IS CLEAR THAT IT IS ANNUAL EXERCISE WHILE COMPUTING THE INCOME OF ANY ASSESSEE TO FIND OUT WH ETHER GIVEN TO PARTICULAR INSTITUTE OR FUND IS ELIGIBLE FOR DEDUCT ION UNDER SECTION 80G OR NOT. SECTION 80G(5B) IS ALSO STATES CERTAIN CRITERI A TO DETERMINE WHETHER SECTION 80G APPLY OR NOT. FOR READY REFERENCE, WE P RODUCED THE SAME AS FOLLOWS:- (5B) NOTWITHSTANDING ANYTHING CONTAINED IN CLAUSE (II) OF SUB- SECTION (5) AND EXPLANATION 3, AN INSTITUTION OR FU ND 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 APP LY. IN VIEW OF FORGOING DISCUSSIONS OF LAW, IT IS CLEAR THAT ON YEAR TO YEAR BASIS, IT HAVE TO SEE THAT WHETHER A PARTICULAR TRU ST OR FUND HAVE INCURRED EXPENDITURE MORE THAN 5% OF RELIGIOUS NATU RE. FILING OF APPLICATION AND EXAMINATION BY CIT(E) IS A PROCEDUR AL PART AND CAN NOT OVER RIDE THE LEGAL PROVISION. IN THE INSTANT CASE, THE FINDING OF THE CIT(E) OF NON APPLICABILITY IS ONLY WITH RESPECT TO F.Y. 2014-15 AND SAME CAN NOT BE APPLY TO OTHER YEARS. 4. THE LD CIT-DR IS HEARD WHO HAS SUBMITTED THAT T HE PROVISIONS OF SECTION 80G(5B) ARE CLEAR TO THE EFFECT THAT WHERE THE ASSESSEE SOCIETY INCURS ANY EXPENDITURE WHICH IS OF RELIGIOUS NATURE DURING ANY PREVIOUS YEAR AND SUCH AN EXPENDITURE EXCEEDS FIVE PERCENT O F ITS TOTAL INCOME, ITA NO. 910/JP/2018 SHRI BAIR SINGH JI NARAYAN SINGH JI MEMORIAL SANST HAN, BIKANER VS. CIT(E), JAIPUR 18 THE ASSESSEE SOCIETY CANNOT BE ALLOWED REGISTRATION UNDER SECTION 80G OF THE ACT. IT WAS FURTHER SUBMITTED THAT WHILE GR ANTING THE APPROVAL, THE LD CIT(E) HAS TO CALL FOR AND EXAMINE THE FINAN CIAL STATEMENTS OF LAST THREE YEARS AND IN THE INSTANT CASE, ON SUCH EXAMIN ATION, THE LD CIT(E) HAS FOUND THAT IN THE FINANCIAL YEAR, POOJA EXPENSE S AS PER ASSESSEES OWN INCOME AND EXPENDITURE ACCOUNT EXCEEDS 5% OF TO TAL INCOME FOR THE FINANCIAL YEAR 2014-15, THE PROVISIONS OF SECTI ON 80G(5B) ARE CLEARLY ATTRACTED. HE ACCORDINGLY RELIED ON THE ORDER OF T HE LD CIT(E) AND SUBMITTED THAT THE ASSESSEE SOCIETY HAS BEEN RIGHTL Y DENIED THE REGISTRATION UNDER SECTION 80G AND THE ORDER OF THE LD CIT(E) MAY THEREFORE BE CONFIRMED. 5. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE ASSESSEE, A SOCIETY REGIST ERED WITH REGISTRAR OF SOCIETIES HAS FILED AN APPLICATION BEFORE THE LD CI T(E) FOR SEEKING REGISTRATION U/S 80G OF THE ACT ON 06.12.2017. SEP ARATELY, THE ASSESSEE ALSO MOVED AN APPLICATION U/S 12AA OF THE ACT. THO UGH THE DATE OF MOVING THE APPLICATION U/S 12AA IS NOT APPARENT, HO WEVER, WITHIN SIX DAYS OF MOVING THE FIRST APPLICATION U/S 80G, THE L D CIT(E) GRANTED REGISTRATION TO THE ASSESSEE SOCIETY U/S 12AA OF TH E ACT VIDE HIS ORDER DATED 12.12.2017. HOWEVER, THE FIRST APPLICATION S EEKING REGISTRATION U/S 80G(5) WAS REJECTED BY THE LD CIT(E) VIDE HIS O RDER DATED 31.5.2018. WHILE REJECTING THE ASSESSEES 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 ASSE SSEE SOCIETY. IN ITA NO. 910/JP/2018 SHRI BAIR SINGH JI NARAYAN SINGH JI MEMORIAL SANST HAN, BIKANER VS. CIT(E), JAIPUR 19 CONTEXT OF SECTION 80G(5), IN ABSENCE OF ANY ADVERS E FINDING, THE ASSESSEE SOCIETY HAS ALSO BEEN FOUND FULLY COMPLIAN T WITH THE CONDITIONS SPECIFIED U/S 80G(II) AND 80G(III) AS WELL AS EXPLA NATION 3 TO SECTION 80G OF THE ACT. IN OTHER WORDS, THE ASSESSEE SOCIETY IS REGISTERED AS A CHARITABLE SOCIETY, NONE OF ITS OBJECTS PROVIDE FOR TRANSFER OR APPLICATION OF WHOLE OR ANY PART OF THE INCOME FOR ANY PURPOSE OTHER THAN CHARITABLE PURPOSE, IT IS NOT FOR THE BENEFIT OF AN Y PARTICULAR RELIGIOUS COMMUNITY OR CASTE AND NONE OF ITS OBJECTS INCLUDE ANY OBJECT THE WHOLE OR SUBSTANTIALLY THE WHOLE OF WHICH IS RELIGI OUS IN NATURE. 6. HAVING SAID THAT, FOR THE SOLE REASON THAT IN ON E OF THE PRECEDING FINANCIAL YEARS I.E., FINANCIAL YEAR 2014-15, CERTA IN EXPENSES UNDER THE HEAD MANDIR POOJA EXPENSES AMOUNTING TO RS 17,230 , REFLECTED IN ITS AUDITED INCOME & EXPENDITURE ACCOUNT, HAS BEEN INCU RRED BY THE ASSESSEE SOCIETY AND SUCH EXPENSES EXCEED 5% OF ITS TOTAL INCOME AMOUNTING TO RS 3,00,627 FOR THE SAID FINANCIAL YEA R, THE REGISTRATION U/S 80G(5) HAS BEEN DENIED INVOKING PROVISIONS OF S ECTION 80G(5B) OF THE ACT WHICH READS AS UNDER: (5B) NOTWITHSTANDING ANYTHING CONTAINED IN CLAUSE (II) OF SUB- SECTION (5) AND EXPLANATION 3, AN INSTITUTION OR FU ND 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 APP LY. ITA NO. 910/JP/2018 SHRI BAIR SINGH JI NARAYAN SINGH JI MEMORIAL SANST HAN, BIKANER VS. CIT(E), JAIPUR 20 7. SUB-SECTION (5B) TO SECTION 80G WAS INSERTED BY THE FINANCE ACT, 1999 AND THE INTENT BEHIND INTRODUCTION OF SUCH PRO VISION HAS BEEN EXPLAINED BY THE CBDT IN ITS CIRCULAR NO. 779, DATE D 14-9-1999 IN FOLLOWING WORDS: 33.1 UNDER THE PROVISION OF SECTION 80G OF THE INC OME-TAX ACT, 1961, A DEDUCTION IN RESPECT OF DONATIONS TO CERTAI N FUNDS, INSTITUTIONS ETC. IS PROVIDED. HOWEVER, CLAUSE (II) OF SUB-SECTION (5) OF THAT SECTION PROVIDES THAT IF SUCH FUND OR I NSTITUTION HAS IN ITS INSTRUMENT ANY PROVISION FOR THE TRANSFER OR AP PLICATION OF THE WHOLE OR ANY PART OF THE INCOME OR ASSET FOR ANY PU RPOSE OTHER THAN A CHARITABLE PURPOSE, IT COULD NOT AVAIL OF TH E BENEFIT UNDER THIS SECTION. IT HAS ALSO BEEN PROVIDED IN EXPLANAT ION 3 THAT FOR THE PURPOSE OF THIS SECTION, 'CHARITABLE PURPOSE' D OES NOT INCLUDE ANY PURPOSE THE WHOLE OR SUBSTANTIALLY THE WHOLE OF WHICH IS OF A RELIGIOUS NATURE. THESE PROVISIONS HAVE BEEN INTERP RETED TO DENY THE BENEFIT TO EVEN SUCH FUNDS OR INSTITUTIONS AS A RE PREDOMINENTLY ENGAGED IN CHARITABLE ACTIVITIES BUT ARE EITHER INSPIRED TO DO CHARITY BY TENETS OF RELIGION OR SPE ND A NEGLIGIBLE AMOUNTS ON PURPOSES OTHER THAN CHARITABLE. IT WOULD BE HARSH TO DENY THE BENEFITS TO THE INSTITUTIONS WHICH ARE ENG AGED 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 ITA NO. 910/JP/2018 SHRI BAIR SINGH JI NARAYAN SINGH JI MEMORIAL SANST HAN, BIKANER VS. CIT(E), JAIPUR 21 INCOME DURING THE RELEVANT PREVIOUS YEAR FOR RELIGI OUS PURPOSE, THE BENEFIT OF DEDUCTION WILL NOT BE DENIED TO THEM . 33.3 THIS AMENDMENT WILL TAKE EFFECT FROM THE 1ST D AY OF APRIL, 2000 AND WILL, ACCORDINGLY, APPLY IN RELATION TO AS SESSMENT YEAR 2000-2001 AND SUBSEQUENT YEARS. 8. THUS, THE PROVISIONS OF SECTION 80G(5B) HAVE BEE N INTRODUCED AS AN ENABLER PROVISION RATHER THAN DISABLER PROVISION AND MORE SO IN CONTEXT OF SUCH FUND OR INSTITUTION WHICH ARE GOVER NED 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 EXPLANATI ON 3 TO SECTION 80G OF THE ACT. IN OTHER WORDS, WHERE ANY SUCH FUND OR INSTITUTION HAS IN ITS INSTRUMENT ANY PROVISION FOR THE TRANSFER OR APPLIC ATION OF THE WHOLE OR ANY PART OF THE INCOME OR ASSET FOR ANY PURPOSE OTH ER THAN A CHARITABLE PURPOSE, IT COULD STILL AVAIL THE BENEFIT UNDER THI S SECTION PROVIDED SUCH INSTITUTIONS OR FUNDS SPEND UPTO FIVE PER CENT OF T HEIR TOTAL INCOME DURING THE RELEVANT PREVIOUS YEAR FOR RELIGIOUS PUR POSE. HOWEVER, WHERE ANY SUCH FUND OR INSTITUTION DOESNT HAVE IN ITS IN STRUMENT ANY PROVISION FOR THE TRANSFER OR APPLICATION OF THE WHOLE OR ANY PART OF THE INCOME OR ASSET FOR ANY PURPOSE OTHER THAN A CHARITABLE PURPO SE, THEN EVEN THOUGH IT SPEND CERTAIN AMOUNT FOR RELIGIOUS PURPOS ES, IT CANNOT BE DENIED THE EXEMPTION AS IT IS NOT COVERED BY THE PR OVISIONS OF SECTION 80G(5)(II) AND THUS NOT COVERED BY SECTION 80G(5B) OF THE ACT. WE ARE THEREFORE OF THE VIEW THAT THE PROVISIONS OF SECTIO N 80G(5B) HAVE TO BE READ SUB-SERVIENT TO THE PROVISIONS OF SECTION 80G( 5)(II) AND THE SAME ITA NO. 910/JP/2018 SHRI BAIR SINGH JI NARAYAN SINGH JI MEMORIAL SANST HAN, BIKANER VS. CIT(E), JAIPUR 22 SHOULD NOT BE READ AS AN ADDITIONAL AND AN INDEPEND ENT CONDITION WHICH A FUND OR INSTITUTION HAS TO COMPLY WITH IN ORDER T O SEEK REGISTRATION UNDER SECTION 80G OF THE ACT. IN THE INSTANT CASE, IT IS NOT THE CASE OF THE REVENUE THAT THE ASSESSEE SOCIETY IS GOVERNED B Y SECTION 80G(5)(II) AND HAS IN ITS INSTRUMENT/OBJECT ANY PROVISION FOR THE TRANSFER OR APPLICATION OF THE WHOLE OR ANY PART OF THE INCOME OR ASSET FOR ANY PURPOSE OTHER THAN A CHARITABLE PURPOSE. IT IS ALS O NOT THE CASE OF THE REVENUE THAT IT IS FOR THE BENEFIT OF ANY PARTICULA R RELIGIOUS COMMUNITY OR CASTE AND ANY OF ITS OBJECTS INCLUDE ANY OBJECT THE WHOLE OR SUBSTANTIALLY THE WHOLE OF WHICH IS RELIGIOUS IN NA TURE. IN VIEW OF THE SAME, THE PROVISIONS OF SECTION 80G(5B) CANNOT BE I NVOKED IN THE INSTANT CASE AND THE ORDER OF THE LD CIT(E) DESERVE TO BE SET-ASIDE ON THIS GROUND ITSELF. 9. IN TERMS OF THE NATURE OF THE MANDIR POOJA EXPE NSES, IT IS NOTED THAT THE SAID EXPENDITURE HAS BEEN INCURRED IN RESP ECT OF AN 100 YEARS OLD MANDIR SITUATED AT VILLAGE JOGALSAR WHERE THE P OOJA IS PERFORMED REGULARLY BY THE LOCALS AT THEIR EXPENSES HOWEVER, CERTAIN EXPENSES IN TERMS OF UPKEEP AND MAINTENANCE OF THE TEMPLE PREMI SES, DISTRIBUTION OF PRASAD, ETC IS CONTRIBUTED BY THE ASSESSEE SOCIE TY. 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 ANC ILLARY TO ASSESSEE SOCIETYS MAIN OBJECT TO PRESERVE AND PROMOTE SUCH HERITAGE TEMPLE BUILDINGS. THE TEMPLE IS VISITED BY ALL LOCALS IRR ESPECTIVE OF THEIR RELIGION, CASTE, CREED OR GENDER AND THE TEMPLE PRE MISES IS ALSO USED FOR VARIOUS SOCIAL AND FESTIVAL GATHERINGS. THE LIN E OF DISTINCTION BETWEEN RELIGIOUS AND CHARITABLE PURPOSES IS VERY THIN AND NO WATER TIGHT ITA NO. 910/JP/2018 SHRI BAIR SINGH JI NARAYAN SINGH JI MEMORIAL SANST HAN, BIKANER VS. CIT(E), JAIPUR 23 COMPARTMENT BETWEEN THE TWO ACTIVITIES CAN BE VERY ESTABLISHED. IN THE FACTS OF THE PRESENT CASE, WE DONOT BELIEVE THAT WH ERE THE ASSESSEE HAS INCURRED CERTAIN EXPENSES FOR UPKEEP AND MAINTENANC E OF THE TEMPLE PREMISES AND DISTRIBUTION OF PRASAD TO PUBLIC AT LA RGE, IT WOULD BE AN ACTIVITY RELATED TO A PARTICULAR RELIGION OR COMMUN ITY AND THE EXPENSES SO INCURRED WOULD BE IN NATURE OF RELIGIOUS EXPENSE S. IN CASE OF UMAID CHARITABLE TRUST (SUPRA), THE HONBLE RAJASTHAN HIG H COURT HAS HELD THAT UNLESS OBJECTIVE OF THE ASSESSEE SOCIETY IS FO R 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 EX PENSES FOR UPKEEP AND MAINTENANCE OF THE TEMPLE PREMISES AND DISTRIBU TION OF PRASAD TO PUBLIC AT LARGE. SIMILARLY, THE COORDINATE BENCH IN CASE OF SHRI RADHA KRISHNA MANDIR FOUNDATION (SUPRA) HAS HELD AS UNDER: 2.9 THE ANOTHER OBJECTION RAISED BY THE LD. CIT IS BASED ON THE REPORT OF THE AO THAT AS PER THE NEWLY ADDED OBJECTS, THE ASSESSEE TRUST SHALL MAINTAIN THE TEMPLE WORSHIP, POOJA, FESTIVALS ACCOR DING TO SAMPRADAYA IN WHICH THE TEMPLE BELONGS TO. WE DO NOT FIND THAT SUCH AN ACTIVITY OF MAINTAINING THE TEMPLE AS PER RITS AND RITUALS OF P ARTICULAR SAMPRADAYA TO WHICH THE TEMPLE BELONGS WOULD AMOUNT THE ACTIVI TY RELATED TO A PARTICULAR RELIGION OR COMMUNITY. WHEN THE TEMPLES WHICH ARE SUPPOSED TO MAINTAIN BY THE ASSESSEE ARE OPEN FOR GENERAL PU BLIC THEN PERFORMING POOJA OR FESTIVALS IN A PARTICULAR MANNER DOES NOT CHANGE THE PUBLIC CHARITABLE NATURE OF THE ACTIVITIES TO NON-CHARITAB LE. EVEN OTHERWISE THE OBJECTS OF ASSESSEE TRUST DO NOT SPECIFY THE MAINTE NANCE OF ANY SPECIFIC OR PARTICULAR TEMPLE BELONGING TO A SPECIFIC SAMPRA DAYA AND IF A TEMPLE ITA NO. 910/JP/2018 SHRI BAIR SINGH JI NARAYAN SINGH JI MEMORIAL SANST HAN, BIKANER VS. CIT(E), JAIPUR 24 WHICH IS MAINTAINED BY THE ASSESSEE KEEPING IN VIEW ALL THE RITS AND RITUALS BEING FOLLOWED IN THE SAID TEMPLE AS PER PA RTICULAR SAMPRADAYA, THE SAME WOULD BE IRRELEVANT FOR THE PURPOSE OF CON STRUING THE OBJECTS AS CHARITABLE. 10. IN LIGHT OF ABOVE DISCUSSIONS AND IN THE FACTS AND CIRCUMSTANCES OF THE PRESENT CASE, WE HEREBY DIRECT THE LD CIT(E) TO GRANT THE NECESSARY REGISTRATION U/S 80G TO THE ASSESSEE SOCI ETY. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWE D. ORDER PRONOUNCED IN THE OPEN COURT ON 31/12/2018. SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 31/12/2018. * GANESH KR. VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- SHRI BAIR SINGH JI NARAYAN SINGH JI MEMORIAL SANSTHAN, BIKANER 2. IZR;FKHZ@ THE RESPONDENT- COMMISSIONER OF INCOME TAX (E), JAI PUR 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE {ITA NO. 910/JP/2018} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR