Sanjay Jain Classes would provide the series of Taxation amendments
by Finance Act, 2015. We are also planning to post the major amendments of
Companies Act, 2013. We take a lot of pride in claiming that Sanjay Jain
Classes is the first ever institute which is providing its analysis on these
recent amendments. Notably, the renowned authors are yet to publish their
analysis on these all important amendments made by Finance Act, 2015.
In the first series,
we are explaining the amendment in the section 2(15) and section 2(24) of
Income Tax Act, 1961.
Amendment in section 2(15)
According to section 2(15), “Charitable purpose” includes-
i.
relief of the poor
ii.
education
iii.
medical relief
iv.
preservation of the environment (including
watersheds, forests and wildlife) and preservation of monuments or places or
objects of artistic or historic interest, and
v.
the advancement of any other object of general
public utility.
Further, section 2(15) clarifies that advancement of any other object of
general public utility shall not be a charitable purpose, if it involves the
carrying 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 a cess or fee or any other consideration, irrespective of the
nature of use or application, or retention of the income from such activity.
Amendments – The Finance Act, 2015 has made the following
amendments in the section 2(15) which would be applicable from the assessment
year 2016-17-
1. Yoga
– The activity of Yoga has been one of the focus areas in the present times.
The United Nation has also granted international recognition to it. Therefore,
the definition of “charitable purpose”
shall include “yoga as a specific category on the lines of education and
medical relief.
2.
Advancement of any other object of general
public utility – The advancement of any other object of general public utility
shall not be a charitable purpose, if it involves the carrying on of any
activity in the nature of trade, commerce or business, or any activity of
rendering of 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, unless,-
a.
such activity is undertaken in the course of
actual carrying out of such advancement of any other object of general public
utility; and
b.
the aggregate receipts from such activity or
activities, during the previous year, do not exceed 20 per cent of the total
receipts of the trust or institution undertaking such an activity or activities
for the previous year.
Analysis of the amendments
-
The whole world has celebrated the 21st
June as World Yoga Day. Considering the
benefits of Yoga, the Finance Ministry has included the Yoga in the definition
of “charitable purpose” by making an amendment to section 2(15).
-
As per the second amendment in section 2(15),
advancement of any other object of general public utility shall be considered as a charitable purpose even if it involves the
carrying of any activity in the nature of trade, commerce, etc. if both the following conditions are
cumulatively satisfied:-
1.
Such activity is undertaken in the course of
actual carrying out of such advancement of any other object of general public
utility.
2.
The aggregate receipts from such activity or
activities should be 20 percent or less than 20 percent of the total receipts
of such trust or institution during the previous year.
Point to be noted
1. By
virtue of the recent amendment in section 2(15), Advancement of any other object of general public utility shall not be
considered as charitable activity even if the aggregate value of the receipts
from the trade, commerce or business activities does not exceed Rs. 25 lakh in
the previous year.
Amendment in section 2(24)
The term “income” is defined under section 2(24). Sub-clause (xviii) has
been inserted in section 2(24) with effect from the assessment year 2016-17.
After this amendment, assistance in the form of a subsidy or grant or cash
incentive or duty drawback or waiver or concession or reimbursement (by
whatever name called) will be taxable as “income”. It will be taxable as income
regardless of the fact whether such subsidy or grant is received from the
Central Government or State Government or any authority or body or agency.
Further, it will be taxable whether it is received in cash or kind.
Analysis of the amendment
1.
In the judicial decision, Bombay High Court has
held that if the receipt of subsidy from government is not for trading purpose
then subsidy has to be treated as capital receipt. Hence, not chargeable to
tax. However, after the insertion of sub-clause (xviii) to section 2(24), it
will be chargeable to tax.
2.
As per the literal interpretation of this recent
amendment to section 2(24), even the LPG subsidy received by a
consumer of LPG (directly in his bank account on the basis of Aadhar Card) will
be taxable under sub-clause (xviii). Therefore, it is our humble
request to Finance Ministry that please issue the notification or circular for
clarifying the taxability of LPG subsidy. As of now, the current position is
that on the one hand, government is granting relief to the LPG consumers but at
the same time it is also imposing the tax burden on them.
3.
Scholarship received by a student from a
university or from a charitable organization will also be covered by the newly
inserted sub-clause (xviii). However, scholarship is exempt in the hands of recipient
as per section 10(16).
4.
Subsidy received by a manufacturing company from
the Central Government to acquire plant and machinery, will not be hit by the
provisions of sub-clause(xviii) because the amount of subsidy is deducted from
the “actual cost” for the purpose of claiming depreciation/investment allowance
by virtue of the Explanation 10 to section 43(1).
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