Definition of ‘Charitable purpose’ under section 2(15)

Circular No. 11/2008
F. No.134/34//2008-TPL
Government of India
Ministry of Finance
Department of Revenue
Central Board of Direct Taxes
(Tax Policy & Legislation Division)
……
New Delhi, the 19th December, 2008

Subject:-Definition of ‘Charitable purpose’ under section 2(15) of the Incometax
Act, 1961 – reg.

Section 2(15) of the Income Tax Act, 1961 (‘Act’) defines “charitable purpose” to
include the following:-
(i) Relief of the poor
(ii) Education
(iii) Medical relief, and
(iv) the advancement of any other object of general public utility.

An entity with a charitable object of the above nature was eligible for exemption from tax
under section 11 or alternatively under section 10(23C) of the Act. However, it was seen that a
number of entities who were engaged in commercial activities were also claiming exemption on
the ground that such activities were for the advancement of objects of general public utility in
terms of the fourth limb of the definition of ‘charitable purpose’. Therefore, section 2(15) was
amended vide Finance Act, 2008 by adding a proviso which states that the ‘advancement of any
other object of general public utility’ shall not be a charitable purpose if it involves the carrying
on of –

(a) any activity in the nature of trade, commerce or business; or
(b) any activity of rendering any service in relation to any trade, commerce or
business;
for a cess or fee or any other consideration, irrespective of the nature of use or application, or
retention of the income from such activity.

2. The following implications arise from this amendment –

2.1 The newly inserted proviso to section 2(15) will not apply in respect of the first three
limbs of section 2(15), i.e., relief of the poor, education or medical relief. Consequently, where
the purpose of a trust or institution is relief of the poor, education or medical relief, it will
constitute ‘charitable purpose’ even if it incidentally involves the carrying on of commercial
activities.

2.2. ‘Relief of the poor’ encompasses a wide range of objects for the welfare of the
economically and socially disadvantaged or needy. It will, therefore, include within its ambit
purposes such as relief to destitute, orphans or the handicapped, disadvantaged women or
children, small and marginal farmers, indigent artisans or senior citizens in need of aid. Entities
who have these objects will continue to be eligible for exemption even if they incidentally carry
on a commercial activity, subject, however, to the conditions stipulated under section 11(4A) or
the seventh proviso to section 10(23C) which are that

(i) the business should be incidental to the attainment of the objectives of the entity,
And

(ii) separate books of account should be maintained in respect of such business.
Similarly, entities whose object is ‘education’ or ‘medical relief’ would also continue to
be eligible for exemption as charitable institutions even if they incidentally carry on a
commercial activity subject to the conditions mentioned above.

3. The newly inserted proviso to section 2(15) will apply only to entities whose purpose is
‘advancement of any other object of general public utility’ i.e. the fourth limb of the definition of
‘charitable purpose’ contained in section 2(15). Hence, such entities will not be eligible for
exemption under section 11 or under section 10(23C) of the Act if they carry on commercial
activities. Whether such an entity is carrying on an activity in the nature of trade, commerce or
business is a question of fact which will be decided based on the nature, scope, extent and
frequency of the activity.

3.1. There are industry and trade associations who claim exemption from tax u/s 11 on the
ground that their objects are for charitable purpose as these are covered under ‘any other
object of general public utility’. Under the principle of mutuality, if trading takes place between
persons who are associated together and contribute to a common fund for the financing of
some venture or object and in this respect have no dealings or relations with any outside body,
then any surplus returned to the persons forming such association is not chargeable to tax. In
such cases, there must be complete identity between the contributors and the participants.
Therefore, where industry or trade associations claim both to be charitable institutions as well
as mutual organizations and their activities are restricted to contributions from and
participation of only their members, these would not fall under the purview of the proviso to
section 2(15) owing to the principle of mutuality. However, if such organizations have dealings
with non-members, their claim to be charitable organizations would now be governed by the
additional conditions stipulated in the proviso to section 2 (15).

3.2. In the final analysis, however, whether the assessee has for its object ‘the advancement of
any other object of general public utility’ is a question of fact. If such assessee is engaged in any
activity in the nature of trade, commerce or business or renders any service in relation to trade,
commerce or business, it would not be entitled to claim that its object is charitable purpose. In
such a case, the object of ‘general public utility’ will be only a mask or a device to hide the true
purpose which is trade, commerce or business or the rendering of any service in relation to trade,
commerce or business. Each case would, therefore, be decided on its own facts and no
generalization is possible. Assessees, who claim that their object is ‘charitable purpose’ within
the meaning of Section 2(15), would be well advised to eschew any activity which is in the
nature of trade, commerce or business or the rendering of any service in relation to any trade,
commerce or business.

(Pradip Mehrotra)
Director (TPL-I)


Regards,
Praveen Boda