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Income Tax Appellate Tribunal, MUMBAI BENCH “K”, MUMBAI
Before: SHRI MAHAVIR SINGH & SHRI RAJESH KUMAR
Per Rajesh Kumar, Accountant Member:
The present appeal has been preferred by the assessee against the order dated 28.10.2016 of the Commissioner of Income Tax (Exemption) [hereinafter referred to as the CIT(E)] relevant to assessment year 2008-09.
The only common issue raised in various grounds of appeal is against the order of Ld. CIT(E) not granting registration under section 12A as public and charitable trust.
The facts in brief are that the assessee trust was constituted vide trust deed dated 18.09.2015 which was 2 M/s. Tarehati Charitable Trust registered with the Assistant Charity Commissioner, Greater Mumbai region on 06.04.2016 vide registration No.E- 32136(M). The assessee filed application for registration under section 12A(a) of the Act on 12.04.2016. According to the Commissioner, the main object of the trust deed was to build Hindu temple and install idol of Shri Krishna as per Hindu shastras. Further, Commissioner observed that the trust deed provided that the temple premises would be used for worship only and not for any other purpose and birthday of deity will be celebrated every year and religious functions including kirtans pravachanas would be held as deemed fit to build and match the Hindu temple. So the Commissioner issued a show cause notice dated 18.10.2016 to the assessee that the main object of the trust is religious in nature meant for a particular religion and not for the public at large. Therefore, the trust is religious in nature and not a charitable trust for the benefit of public at large within the meaning of section 2(15) of the Act which was replied by the assessee vide letter dated 25.10.2016 which is reproduced as under:
"the trust is not a religious trust in nature. The object of the trust predominantly is of charitable nature for the public at large. As per the provisions of section 2(15) of the Act, the object of general public utility can be restricted to a section of society. The object pointed out in the notice is in fact beneficial to section of the public which is in object of the general public utility. In the said object clause section of the public being Hindu. It is submitted that, the word Hindu itself does not signify any religion and it is only an identification of group of people who worship the Hindu idols such as lord Krishna being one of them. The larger Constitution Bench of the Supreme Court have observed that “Hinduism is way of lift and not a religion”. The clause 3 a, b only refers to and managing Hindu temple in Mathura and to after performing rites as per Shastras to install deity of Lord Krishna. This is for the benefit for the public at large. In the country like India, wherein different group of people follows different religion like Hindu, Christians, Muslims, Jams, all of them are part of the public at large arid their temple. Mosque, Church are not restricted to particular religious community as being made out. The clause 3p and 3r refers to discourses and providing accommodation to all such persons who promote Hindu discourses. It mentions “all religious priest gurus. It does not restrict to any 3 M/s. Tarehati Charitable Trust particular faith or groups. None of these clauses restrict the public at large from participating in the discourses and worshipping the deity in temple. Thus the objects of the trust are charitable within the meaning of section 2(15) of the Act. As it is advancement of any other object of public utility. Clauses 6 a of the trust deed specifies that, "trust temple will be open to the public at large. It especially states that “it will be open to all persons irrespective of any “caste or creed”. (Emphasis supplied)
Thereafter, the Commissioner brushed aside the submissions of the assessee that the trust is for charitable purposes and registration was granted only as religious trust and hence the assessee is in appeal before us against the order Ld. CIT(E) not granting registration as charitable trust.
The Ld. A.R. vehemently submitted before us that Ld. CIT(E) has grossly erred in law in not granting the trust the exemption as charitable trust by ignoring the fact that the Hinduism is not a religion but a way of life. The Ld. A.R. submitted that the objects of the trust are charitable in nature for the public at large. The Ld. A.R. submitted that the word Hindu itself does not signify any religion and it is only an identification of group of people who worship the Hindu idols such as lord Krishna being one of them. The Ld. A.R. also submitted before the Bench that the larger Constitution Bench of the Supreme Court have observed that “Hinduism is way of lift and not a religion”. As regards clause 3 a, b of the trust, the Ld. A.R. submitted that the building of Hindu temple in Mathura and performing rites as per Shastras to install deity of Lord Krishna should not be taken the mean that it for the benefit of a particular society but for the public at large. The Ld. Counsel further clarified that in India the people having different faiths follows different religion like Hindu, Christians,
4 M/s. Tarehati Charitable Trust Muslims, Jains and all of them are part of the public at large and their temple, Mosque, Church are not restricted to any particular religious community as being made out by the Ld. CIT(E). Therefore, the temples are meant for every sect of the society and public at large and not restricted to any particular community. The Ld. A.R. also brought our attention to clause 6 b & 6 c which are in support of clause 6 a and provides that how the premises are to be used and expenses are to be made. The objects of the trust as per the trust deed are to run schools, literature, scholarship to students, librarian reading room build cemeteries, maintenance of gaushalas, orphanage, gardens, gymnasium etc. The trust deed specifically provides that all these facilities are provided by way of charity without any distinction as to caste, colour, race, creed or sex and it is for the benefits of all public at large. The Ld. A.R. relied on a series of decisions in defense of his arguments namely Shiv Mandir Devsttan Panch Committee Sanstan Nagpur vs. CIT-1, Nagpur in ITA No.223/Nagpur/2009 & Shri Radha Raman Niwas Trust in ITA Nos.541 & 542/Agra/2012. Finally, the Ld. A.R. prayed before the Bench that since the trust was constituted for the purpose of charitable purposes for the benefit of public at large as stated hereinabove, therefore the Commissioner should be directed to grant registration as charitable trust.
The Ld. D.R., on the other hand, relied heavily on the order of Ld. CIT(E) and submitted that the first and foremost objective of the trust was to build and manage the Hindu
5 M/s. Tarehati Charitable Trust temple at village Ganthovli, Madhura and install the idol of Shri Krishna after performing the due ceremonies according to Hindu Shastras, to invite a priest for any Hindu religious discourses and to facilitate such Hindu guru and to take guidance from Hindu gurus, to facilitate and to provide accommodation to all religious priest/gurus for promoting pushtimargiya religion and discourses. According to the Ld. D.R., in order to establish whether the trust is created wholly for charitable or religious purposes, it is to be seen the primary objective of the Trust as laid down by the Apex court in the case of Surat Art Silk Cloth Manufacturers Association (1979) 2 taxmann 501 (SC). According to the Ld. D.R. since the trust is established for religious purposes for the followers of Lord Krishna it has to be considered as separate religion and therefore in view of the said facts the decision of co- ordinate bench of the Tribunal in the case of Shiv Mandir Devsttan Panch Committee Sanstan Nagpur vs. CIT-1 and the decision of Hon’ble Chennai High Court in the case of T.T. Kuppuswamy Chettiar vs. State of Tamil Nadu (1987) 100 LW 1031 are not applicable. Thus the Ld. CIT(E) has correctly held the registered trust as religious trust. Moreover, the case of the assessee is also covered by the decision in the case of Boxar Diocesan Society, 62 taxmann.com 91 (Patna) against the assessee. Finally, the Ld. D.R. submitted that in view of these facts the order of Ld. CIT(E) should be upheld.
We have heard the rival submissions of both the parties and perused the material on record including the decisions
6 M/s. Tarehati Charitable Trust cited by the rival parties. We find from the facts before us that the trust was constituted for establishment of Hindu temple at village Ganthovli, Madhura and install the idol of Lord Shri Krishna and according to Hindu shastras. The trust funds include movable or immovable properties including the money offered before the deity in the temple would be part of the funds and to invite a priest for any Hindu religious discourses and to facilitate and to provide accommodation to all religious priests/Gurus for promoting pushtimargiya religion and discourses. It was also provided in the trust deed that funds of the trust would be utilised for running and maintenance of the temple, organizing schools, literature, scholarship to students, librarian reading room build cemeteries, maintenance of gaushalas, orphanage, gardens, gymnasium, to establish and maintain or grant aid to old age homes, orphanages, help to poor, destitute, widows and aged people, to establish and maintain institutions for physically handicapped people, to grant relief to the victims of natural calamities, to construct and manage cemeteries, murdghats and burial grounds besides other charitable objects etc. for the public at large and not confined to any caste, creed, colour, religion or sex. Looking to the overall objectives of the trust we are not in agreement with the finding of the Ld. CIT(E) that it is a religious trust. Hinduism is not a religion but a way of life which has been held by the Constitution bench of the Hon’ble Supreme Court. Moreover, the temple and other facilities are created not for the particular community but for the public at large. Therefore, the 7 M/s. Tarehati Charitable Trust conclusion that it is meant for a particular religion is wrong. The case of the assessee is supported by the decision of the co-ordinate bench of the Tribunal in the case of Shiv Mandir Devsttan Panch Committee Sanstan Nagpur vs. CIT-1 (supra) wherein the co-ordinate bench has held that Hindu is a way of life but not a religion. The operative part of the said order is reproduced as under: “8. We have gone through the relevant clauses which have been regarded to be religious in nature by the CIT(A). The object clause of the trust reads as under:
"Worshin of Lord Shiva, Hanumanji, Goddess Durga and maintaining of temple. To celebrate festivals like Shivratri, Hanuman Jayanti; Ganesh Uttasav, Makar Sankrant, renovation and maintenance of temple. To make available temple for general public and to provide facilities for the public visiting temple. Balance fund, if any after utilizing for the above mentioned objects, may be utilized for education, social and the cultural activities. To conduct nursery school, library, sports club, hostels and other activities. To help poor children for education. To provide medical aid for poor. To help the peoples affected 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 been 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 inclusive one. It includes relief of the poor, education, medical relief, and the advancement of any other object of general public utility. The objects as enumerated above held on by the assessee trust are charitable within the meaning of section 2 of sub section 15. Some of the objects fall within the "advancement of any other object of general public utility". Proviso to section 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.
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 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 "religion" means the belief in and worship to a superhuman controlling power, specially the 8 M/s. Tarehati Charitable Trust personal god or gods, a particular system of faith and worship. It means the trust should not be for the benefit of any particular group of persons having the common belief in worshiping of superhuman 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 propagation of a religion and its tenants, it could be said that a trust has violated the condition No. (iii) of section 80G(5). The objects as has been pointed out by CIT, nowhere talks of advancement, support or propagation of a particular religion, worshipping of Lord shiva, hanumanji , goddess Durga and maintaining of temple, in our opinion, cannot be regarded for the advancement support or propagation of a particular religion. No evidence or material was placed on record or brought before us by the learned DR which may prove that these object relate to a particular religion. No doubt the DR argued that it relate to Hindu Religion but in our opinion it is not so. Lord shiva, Hanumanji, goddess Durga does not represent any particular religion, they are merely regarded to be the super power of the universe.
In the case of Commissioner of Hindu Religious and Charitable Endowments Madras vs. Sri Lakshmindra Thirtha Swamiar 1954 5CJ335, Religion 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, which 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 conducive to their spiritual well being, but it will not be correct to say that religions is nothing else but a doctrine or belief. A religion may not only lay down a code of ethical rules for its followers to accept, but it might prescribed rituals and observances, ceremonies and modes of worship which are regarded as integral parts of a religion, and these forms and observances might extend even to matters of food and 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 follow a particular code of ethical rules and has to carry out the prescribed rituals and observances, ceremonies and modes of worship. The entry is not restricted to a particular group of persons. Any body whether want to worship or not and want to maintain or not can come to the temple and avail of all the facilities available to the public 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 activity religious purpose, it cannot be said that the assessee has not complied 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 expenses cannot be regarded to be the one incurred for religious object ,even if the object is regarded to be religious one. It is not denied that in the building the assesse was carrying yoga centre, tailoring training centre as well as food for the needy and optical centre for the poor.”
Similarly, in the case of Shri Radha Raman Niwas Trust (supra) the co-ordinate bench of the Tribunal has decided the issue as under:
9 M/s. Tarehati Charitable Trust “8. We have gone through the relevant clauses which have been regarded to be religious in nature by the CIT(A). The object clause of the trust reads as under:
Worship of Lord Shiva. Hanumanji, Goddess Durga and maintaining of temple.The celebrate festivals like shivaratri. Hanuman Jayanti, Ganesh Uttasav. Makar Sankranti renovation and maintenance of temple. To make available temple for general public and to provide facilities for the public visiting temple. Balance fund, if any after utilizing for the above mentioned objects, may be utilized for education, social and the cultural activities. To conduct nursery school, sports club hostels and other activities. To help poor children for education. To provide medical and for poor. To help the peoples affected 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 been incurred for the benefit of particular religion.
The charitable purpose has been defined u/s2(15) 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 utility. The objects as enumerated above held on by the assessee trust are charitable within the meaning of section 2 of sub section 15. Some of the objects fall within the "advancement of any other object of general public utility." Proviso to section 2 sub section 15 restricts the meaning "advancement of any8 other objects of general public utility." But CIT(A) has not stated that proviso to section2 sub section 15 is applicable in the case of the assessee.
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 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 "religion" means the belief in and worship to a superhuman controlling power, specially the personal god or gods, a particular system of faith and worship. It means the trust should not be for the benefit of any particular group of person having the common belief in worshiping of superhuman controlling power or having common system & faith and worship. If the trust is for the benefit of any particular community. It would include the advancement, support or propagation of a particular religion, worshipping of 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 or material was placed on record or brought before us by the learned DR which may prove that these object relate to a particular religion. No doubt the DR argued that it relate to Hindu Religion but in our opinion it is not so, Lord shiva. Hanumanji, goddess Durga does not represent 11.In the case of Commissioner of Hindu Religious and Charitable Endowments Madras Vs. Sri Lakshmindra Thirhja Swamiar 154 SCJ335. Religion has been expressed to mean a matter of faith with individuals or communities and it is not necessarily theristic. There are well known religious in India, like Buddhism and Jainism, which do not believe in God or in any intelligent first cause. A religion undoubtedly has its basis in a system of belief or doctrines which are regarded by those who profess that religion as conducive to their spiritual well being, but is will not be correct to say that religions is nothing else but a doctrine or belief. A religion may not only lay down a code of ethical rules for its followers to accept, but it might prescribed rituals and observances, ceremonies and modes of worship which are regarded as integral parts of a religion, and these forms and observances might extent even to matters of food and dress. No 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 follow a particular code of ethical rules and has to carry out the prescribed rituals and observances, ceremonies and modes of worship. The entry is not restricted to a particular group of persons. Any body whether want to worship or not and want to maintain or not can come to the temple and avail of all the facilities available 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 activity religious purpose, it cannot be said that the assessee has not completed with the condition No. (iii) enumerated u/s. 80G(5) of the Act.
Even we noted that all the building maintenance expenses. free food expenses and festival, prayer and daily expenses cannot be regarded to be the one incurred for religious object, even if the object is regarded to be religious one. It is not denied that in the building the assessee was carrying yoga centre, tailoring training centre as well as food for the needy and optical centre for the poor.
13.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 institution or fund shall be for a charitable purpose and may have a number of objects. If anyone of these objects is wholly or substantially wholly of a religious nature, the Institution or Funds falls outside the scope of section 80G and the donation to it will not make the donor entitled for the deduction u/s80G. The objects as per Explanation 3 must be wholly or substantially whose of which must be of religious nature. The assessee has submitted all the evidence including the objects and how the expenditure has been incurred by it. The onus, in our opinion, gets shifted on the Revenue to prove that the assessee-trust is wholly or substantially for the religious purpose. There is no allegation on the part of the revenue that the whole or substantially whole of the object of the trust is to propagate or advance support to a particular sect. We may observe that Hinduism is a way of life of a civilized society. It as such is not a religion. In this regard we rely on the case of TT Kuppuswamy Chettair Vs. State of Tamil Nadu (1987) 100 L.W 1031 in which it was held "The word "Hindu"has not been defined in any of the texts nor in judgment made law. The word was given by 11 M/s. Tarehati Charitable Trust British administrators to inhabitants of India, who were not Christians Muslims, Paris or Jewa. The alleged Hindu religion consists of four castes Brahmins, Kshatriyas, vaishyas and sudras belonging ultimately to two schools of law, mitasharas and dayabhaga. There is, however, no religion by the name Hindu'. It only shows that so called Hindu religion has been called for convenience." CIT must be aware of that the Hindu consists of a number of communities having the different gods who are being worshipped in a different manner, different rituals, different ethical codes. Even the worship of god is not essential for a person who has adopted Hinduism way of life. Thus Hinduism holds within its fold men of divergent views and traditions who have very little in common except a vague faith in what may be called the fundamentals of the Hinduism. The word 'community' means a society of people living in the same place. Under the same laws and regulations and who have common rights and privileges. This may apply to Christianity or Moslem but not to Hinduism. Therefore, it cannot be said that Hindu is a separate community or a separate religion. Technically Hindu is neither a religion nor a community. Therefore, expenses incurred for worshipping of Lord Shiva. Hanuman, Goddess Durga and for maintenance of temple cannot be regarded to be for religious purpose. Under these 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. 80G of the Act. We accordingly, set aside the order of the CIT and direct the CIT to grant approval to the assessee-trust u/s. 80G(5)(vi) of the Act.
In the result, the appeal of the assessee is allowed."
The case relied upon by the Revenue in the case of ACIT vs. Surat Art Silk Cloth Manufacturers Association (supra) is clearly distinguishable on facts and not applicable to the present case. Similarly, the decision of the co-ordinate bench of the Tribunal in the case of Boxar Diocesan Society (supra) is distinguishable on facts. In the said case, the society was incorporated for the benefit of particular section of the society. After considering the facts of the case in the light of ratio laid down in the various decisions as discussed above, we are of the considered view that the trust is for the charitable purposes and not for the religious purposes as held by the Ld. CIT(E) and therefore we set aside the order of the Ld. CIT(E) and direct him to grant registration as charitable trust.
Order pronounced in the open court on 27.07.2018.