‘Charitable Purpose’ includes relief of the poor, education, medical relief and the advancement of any object of general public utility. [Section 2(15)]. The Finance Act (No.2), 2009 has added two more limbs to the definition with retrospective effect from Assessment Year 2009-10 i.e. “preservation of environment (including watersheds, forest and wildlife) and preservation of monuments or places or objects of artistic or historic interest”, thus taking such activities outside the term “advancement of any other object of general public utility”. Where predominant object of the activity is to carry out charitable purpose, it would not lose its character of charitable purpose, merely because some profit arises from such activity. The Finance Act 2008, has amended the definition of ‘charitable purpose’ to provide that ‘advancement of any other object of general public utility’ will not be considered as ‘charitable purpose’ if it involves 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 any fee, cess or other consideration irrespective of nature of use or application or retention of the income from such activity.

Income of the Trust

Income derived from property under trust wholly for charitable or religious purposes is exempt to the extent such income is spent on the objects of the trust, during the year. The trust must apply at least 85% of such income on the objects.

[Section 11(2)]. If the amount applied by the trust is less than 85%, the shortfall in application is not taxable in the following cases —

1. Income is accumulated up to 5 years (10 years if income is accumulated before 1-4-2001) and the purpose of accumulation is specified to the AO in Form No. 10. If accumulated amount could not be spent due to order/ injunction of the court, such period will be excluded. The time limit for filing Form No. 10 is the same as time limit for filing return u/s 139(1) (Rule 17). However in the case of CIT vs. Nagpur Hotel Owners Association [247 ITR 201 SC] the Hon’ble Supreme Court has held that in the absence of reference to time limit in the section itself, such form can be submitted any time before the completion of assessment.

1.1 The income accumulated must be spent on the specified purpose within the period of accumulation or in the immediately following year. Till the accumulated amount is spent, it must be invested as specified in Section 11(5). This requirement of Section 11(5) is applicable also to those trusts who are claiming exemption under clauses (iv), (v), (vi) and (via) of Section 10(23C).

From A.Y. 2003-04, if the accumulated income is credited/ paid to any trust registered u/s 12AA or referred to in sub-clause (iv), (v), (vi) or (via) of 10(23C), it shall not be treated as application of income.

1.2 In the case of dissolution of the trust, the AO may allow the application of income in the year in which it is dissolved by way of transfer of the accumulation to other trust registered u/s. 12 AA or institution referred to in Section 10(23C). [2nd proviso to Section 11(3A)].

1.3 If there is violation of any of the conditions relating to accumulation of income, such income will be deemed to be income of the previous year in which the conditions are violated or the previous year immediately following the expiry of the period of accumulation. However, with the permission of the AO, u/s. 11(3A) accumulated amount, if not applied during the specified period, can be applied on other objects of the trust.

2. Where due to reason that whole or any part of the income has not been received during the year, the amount can be applied in the year of receipt or in the following year. However, intimation in writing must be sent to AO before the expiry of time allowed u/s. 139(1) for furnishing the return. In case the amount is not applied, it will be deemed to be the income of previous year immediately following year of receipt. [Explanation 2 to Section 11(1)].
    

3. If due to any other reason, income is not applied during the previous year, such income can be applied in the following previous year. However intimation in writing must be sent to AO before the expiry of time allowed u/s. 139(1) for furnishing the return. If such income is not applied, it shall be deemed to be the income of previous year immediately following the year in which such income was derived [Explanation 2 to Section 11(1)].
    

4. From A.Y. 2007-08 anonymous donations, as defined in section 115BBC, would be taxable at the rate of 30 per cent in the hands of trust/institutions referred to in Section 11 or in sub-clauses (iiiad), (iiiae), (iv), (v), (vi) and (via) of Section 10(23C),. Finance Act (No.2) of 2009 has provided that such donations, only to the extent of the higher of 5% of the total income of such trust and Rs. 1,00,000, would not be treated as anonymous donations.

REGISTRATION

The trust shall make an application to the Commissioner for registration u/s 12A in Form 10A. Exemption will be available from the assessment year immediately following the financial year in which the application for registration is made. The Commissioner’s power of condonation has now been removed Prior to 1st June, 2007, application had to be made within 1 year of the creation of trust. In case of delay, the registration could be granted from inception if Commissioner was satisfied with the reasons of delay. Otherwise, the registration would be granted from 1st day of financial year in which application is made. W.e.f. 1-6-2007 Commissioner’s power of condonation has now been withdrawn. There is no possibility of getting exemption for years earlier to the financial year during which the application is filed. Every order granting or rejecting registration has to be passed within 6 months from the end of the month in which application is made. The Commissioner can revoke the registration granted to the trust after giving an opportunity of being heard. The appeal against the order u/s 12AA can be made to Appellate Tribunal.

The income of the following Institutions are exempt u/s 10.

Sub-section	Trust or Institution
10(23C)(i)	The Prime Minister’s National Relief Fund
10(23C)(ii)	The Prime Minister’s Fund (Promotion of Folk Art)
10(23C)(iii)	The Prime Minister’s Aid to Students Fund
10(23C)(iiia)	The National Foundation for Communal Harmony
10(23C)(iiiab)	Educational Institution wholly or substantially financed by the Government
10(23C)(iiiac)	Medical Institution wholly or substantially financed by the Government
10(23C)(iiiad)	Educational Institution — Annual receipts do not exceed 1 crore rupees
10(23C)(iiiae)	Medical Institution — Annual receipts do not exceed 1 crore rupees
10(23C)(iv)**	Institution of National importance notified by the Govt.
10(23C)(v)**	Trust or Institution notified by the Central Government as for charitable purposes
10(23C)(vi)**	Educational Institution other than those mentioned in sub-clauses iiiab & iiiad and approved by prescribed Authority
10(23C)(via)**	Medical Institution other than those mentioned in sub-clauses iiiac & iiiae and approved by prescribed Authority.

** Subject to the condition of application of income to the extent of 85% of the income. Further, Investment of the Accumulation has also to be in accordance with provisions of Section 11(5) of the Act. In respect of other institutions listed above, these conditions do not apply.

AUDIT

Where total income before the exemptions u/ss. 11 and 12 of the trust exceeds the maximum amount not chargeable to tax; i.e., presently Rs. 1.60 lakh, in order to get exemption u/ss. 11 and 12, the accounts have to be audited by an accountant as defined in explanation below sub-section 2 of Section 288, who will give his report in Form 10B.

If the income of the trust/institution referred to in clause (iv), (v), (vi) or (via) of Sec.10(23C) without giving effect to the provisions of these clauses exceeds the maximum amount not chargeable to tax, such trusts will have to get their accounts audited by the accountant as defined in explanation below sub-section (2) of Section 288. (As provided in the Taxation (Amendment) Act, 2006) in form 10BB.

INVESTMENTS

All investments of the trust must be in forms and modes provided in Section 11(5), which are as under —

1. Investment in Government savings certificates/other securities/certificates issued by the Central Government under Small Savings Scheme;

2. Deposit in any account with the Post Office Saving Bank;

3. Deposit in any account with a scheduled/co-operative society engaged in carrying on the business of banking (including co-operative land mortgage bank or a co-operative land development bank),

4. Investment in units of the Unit Trust of India;

5. Investment in any security of the Central/State Government;

6. Investment in debentures whose principal and interest are fully and unconditionally guaranteed by Central/State Government;

7. Investment or deposit in any public sector company (PSC); Shares of PSC may be retained for three years and other investments or deposits till its maturity or PSC ceases to be a PSC;

8. Deposits with or investment in any bonds issued by

1. an approved financial corporation which is engaged in providing, long-term finance for industrial development in India;

2. a public company formed and registered in India with the main object of carrying on the business of providing long-term finance for construction or purchase of houses in India for residential purposes,

3. public company formed and registered in India with the main object of carrying on the business of providing long-term finance for urban infrastructure in India;

9. Investment in immovable property;

10. Deposit with the Industrial Development Bank of India;

11. Any other prescribed form or mode of investment or deposit (Please refer Rule 17C).

1. Units issued under any scheme of the mutual fund referred to in clause (23D) of Section 10 of the Income-tax Act, 1961;

2. Any transfer of deposits to the Public Account of India;

3. Deposits made with an authority constituted in India by or under any law enacted either for the purpose of dealing with and satisfying the need for housing accommodation or for the purpose of planning, development or improvement of cities, towns and villages, or for both;

4. Equity shares of a depository as defined in clause (e) of sub-section (1) of Section 2 of the Depositories Act, 1996 (22 of 1996).
   
   However, this provision will not apply to:

1. Any asset held as part of the corpus as on 1-6-1973 and any accretion thereto by way of bonus shares.

2. Any debentures acquired before 1-3-1983. If debentures acquired between 28-2-1983 and 25-7-1991, exemption is denied only in respect of income from such debentures, provided debentures are disinvested by 31-3-1992.

If investment is in contravention of the above provisions, it can be brought in its conformity within a period of 1(one) year from the end of the previous year.

CORPUS DONATION

Where a trust receives voluntary contributions made with a specific direction that they will form part of the corpus, such income will not be included in the total income of the trust. [Section 11(1)(d) r.w.s. 12].

BUSINESS INCOME

Section 11(4A) provides that tax exemption will not apply in relation to any income of a trust being profits and gains of the business unless the business is incidental to the attainment of the objectives of the trust and separate books of account are maintained by such trust in respect of such business. ICAI has expressed the view that running of hospital by a trust is a business activity. Therefore, if gross receipts from running of such hospital exceeds Rs. 40 lakhs, the accounts should be audited u/s 44AB.

CAPITAL GAINS

Where a capital asset is transferred and entire net consideration is utilised to acquire a new capital asset, the whole of capital gains is deemed to have been applied for charitable/religious purposes. If part of the net consideration is used to acquire a new capital asset, then the capital gains equal to the amount, if any, by which the amount so utilised exceeds the cost of the transferred asset, will be deemed to have been applied for charitable/religious purposes [Section 11(1A)]. Also refer Instruction 883 Dt 24.9.75.

TDS

The trust is required to deduct tax at source as per the provisions of the Act. The trust is also required to obtain certificate from the AO so that it can receive income without deduction of tax at source.

EXEMPTION U/S 11 NOT TO APPLY IN CERTAIN CASES (SECTION 13)

Section 13(1)(a)  —  Trust for private religious purposes.
Section 13(1)(b)  —  Trust established for the benefit of any particular religious community or caste.
Section 13(1)(c)  —  Income of the trust is applied directly or indirectly for the benefit of persons referred to in sub-section (3).
Section 13(1)(d)  —  Funds are invested otherwise than in any form or modes specified in 11(5).

MISCELLANEOUS POINTS

1. If whole or part of the relevant income is not exempt u/s 11 or 12 by virtue of provisions contained in clauses 13(1)(c) and (d), the tax will be charged at maximum marginal rate. [Proviso to Section 164].

2. New Section 115BBC — The anonymous donations as aforesaid will be taxed @ 30% (plus Surcharge and Education Cess), except in the following two situations:

1. The trust or institution is established wholly for religious purposes; and

2. If it is for both religious and charitable purposes, unless the donation is specifically for the educational or medical institution run by such trust.

3. Filing of return [Sec. 139(4A)] on or before 30th September.

4. Filing of return by the institutions referred to in clauses 21, 22B, 23A, 23B, sub-clauses a and b of clauses 24 of Section 10 and sub-clauses (iv), (v), (vi), (via) of clause 23C [Section 139(4C)].

5. Application for grant of approval or continuance thereof, wherever required in Section 10(23C), shall be filed during the financial year immediately preceding the assessment year from which exemption is sought (e.g. for A.Y. 2007-08, it should be filed on or before 31-3-2007). The Taxation (Amendment) Act, 2006, has replaced the present system of obtaining approval periodically in case the annual receipts are more than Rs. 1 crore by a one-time approval u/s 10(23C). This approval shall be granted or rejected within a period of 12 months from the end of the month in which such application is received.

   Further, Finance Act (No.2) of 2009, has laid down that institutions/trusts/funds seeking approval for exemption under clauses (iv), (v), (vi) & (via) of Section 10(23C) has to make the application for such exemption or continuance thereof by 30th September of the relevant assessment year. This is with effect from 1.4.2009. In simple words, applications has to be filed within 6 months from the end of financial year [for F.Y. 2008-09, by 30-9-2009].

6. Penalty of Rs. 100/- per day for failure to furnish return under sub-sections 4A and 4C of Section 139 [Section 272A(2)].

7. 13B [Electoral Trust]: The Finance Act (No. 2) of 2009 has recognized the concept of electoral trust for tax purposes. The salient features are

1. approved by CBDT as per scheme notified by Central Government

2. Donations received are exempt from tax if:

1. 95% of donations received plus surplus brought forward earlier years is distributed to registered political parties.

2. trust functions as per rules framed by Central Government.

IMPORTANT CIRCULARS OF CBDT

1. Instruction 883 dt. 24-9-1975 – FD exceeding 6 months is also a capital asset.

2. No. 5-P (LXX, 6) dt. 19-6-1968 — The Income of the trust is to be computed in the commercial sense; i.e., “book income”. Even when the trust derives income from property, or dividends, such income will be computed on actual commercial basis and not under provisions relating to income from house property or income from other sources.

3. No. 100 dt. 24-1-1973 — The repayment of loans originally taken to fulfil any of the objects of the trust is also considered as an application.
   The loan given by an educational trust is also an application for charitable purpose.

4. No. 566 dt. 17-7-1990 — Indira Vikas Patras and Kisan Vikas Patras are permitted investments u/s 11(5)(i).