SERVICE TAX EXEMPTION TO CHARITABLE ACTIVITIES

[Dr. Sanjiv Agarwal]

Services by an Entity Registered under section 12AA of the Income Tax Act, 1961 by way of Charitable Activities

"Charitable activities" as defined in clause (k) of definitions in the Notification No. 25/2012-ST, dated 20-6-2012 means activities relating to –

1. public health by way of -
2. care or counselling of -
3. terminally ill persons or persons with severe physical or mental disability,
4. persons afflicted with HIV or AIDS, or
5. persons addicted to a dependence-forming substance such as narcotics drugs or alcohol; or

2. public awareness of preventive health, family planning or prevention of HIV infection;

2. advancement of religion or spirituality
3. advancement of educational programmes or skill development relating to,-

1. abandoned, orphaned or homeless children;
2. physically or mentally abused and traumatized persons;
3. prisoners; or
4. persons over the age of 65 years residing in a rural area;

4. preservation of environment including watershed, forests and wildlife; or
5. advancement of any other object of general public utility up to a value of twenty five lakhs rupees in a financial year subject to the condition that total value of such

activities had not exceeded twenty five lakhs rupees during the preceding financial year.

W.e.f. 1-4-2013, entry in (e) above had been deleted vide Notification No. 3/2013-ST, dated 1-3-2013. Thus, this residual clause of general public utility for the purpose of charitable activities will not be in force. Thus, the benefit to charities providing services for advancement of any other object of general public utility upto Rs. 25 lakhs will not be available. However, the threshold exemption will continue to be available up to Rs. 10 lakhs.

For the purpose of this exemption, 'general public' means the body of people at large sufficiently defined by some common quality of public or impersonal nature. (defined in Clause 'q' of definitions in the Notification No. 25/2012-ST, dated 20-6-2012)

As per Oxford Dictionary, charitable means connected with a charity or charities; Helping people who are poor or in need.

For this purpose, rural area means the area comprised in a village as defined in land revenue records, excluding -

1. the area under any municipal committee, municipal corporation, town area committee, cantonment board or notified area committee; or
2. any area that may be notified as an urban area by the Central Government or a State Government.

If a registered entity is doing any activity falling in negative list of services or otherwise exempt, it is not required to pay service tax on that activity. In case, where the activity is covered explicitly in any of the specified charitable activities at 'a' to 'd', he is exempt from service tax without any value limit. For charitable activities mentioned at 'e' it is exempt up to a value of twenty five lakhs rupees in a financial year if the total value of such services had not exceeded twenty five lakhs rupees during the preceding financial year. However, if his activity is not for general public as defined in the notification, he is not eligible for exemption and required to pay service tax on such activities. General public is defined in the notification (clause q) as 'body of people at large sufficiently defined by some common quality of public or impersonal nature' with effect from 1-4-2013, exemption under 'e' shall not be available.

To claim this exemption, following two tests are important -

1. services should be provided by an entity registered u/s 12AA of Income Tax Act, 1961, and
2. services should be charitable activities. Both the above conditions must be complied with.

It may be noted that services provided by way of construction, erection, commissioning, installation, completion, fitting out, repair, maintenance, renovation or alteration of a building owned by an entity registered under section 12AA of the Income Tax Act, 1961 and meant predominantly for religious use by general public are also exempt under Sr. No. 13(b) of mega exemption Notification No. 25/2012-ST, dated 20-6-2012.

While services provided by the charitable trusts are not listed in the negative list, mega exemption notification exempts charitable activities as defined therein if provided by any entity registered under section 12AA of Income Tax Act, 1961. Charitable trusts could be registered or unregistered organization.

Following services are covered under negative list -

1. Pre-school education, education as a part of curriculum for obtaining a recognized qualification and approved vocational educational course (66D-l)
2. Funeral, burial, crematorium or mortuary services (66D -q)

Notification No. 25/2012-ST dated 20.06.2012 also contains following exemptions which may or may not be provided by unregistered charitable organizations -

1. veterinary clinic (clause 3)
2. renting of precincts of a religious place meant for general public or conduct of religious ceremony (clause 5)
3. training or coaching in recreational activities in arts, culture or sports (clause 8)
4. services to or by an educational institution in respect of exempt education services by way of auxiliary educational service or renting of immovable property (clause 9)
5. services provided to a recognized sports body by another recognized sports body (clause 10)
6. renting of hotel, inn, guest hose etc. meant for residential or lodging purposes with declared tariff below Rs. 1000 per day (clause 18)
7. serving of food etc. in a mess etc. (clause 19)
8. services provided to government authority in relation to functions carried out by municipality for water supply, public health, sanitation etc. (clause 25)

(i)    public libraries (clause 35)

(j)    public conveniences (clause 38)

It may be noted that charitable trusts and unregistered trusts do not enjoy blanket exemption towards the services received by them. Similarly, wherever reverse charge mechanism is applicable, there is no specific relief to charitable trusts and unregistered organizations. Whether trusts is a business entity or not can always be an issue of litigation if the department takes a different view.

Services by a Person by way of (a) Renting of Precincts of a Religious Place meant for General Public; or Conduct of any Religious Ceremony

Services provided by a person in relation to religious ceremony by way of following shall be exempt from service tax -

1. renting of precincts of a religious place meant for general public, or
2. conduct of any religious ceremony

Religious place is a place which is primarily meant for conduct of prayers or worship pertaining to a religion.

'Precincts' means an area within the walls or perceived boundaries of a particular building or place; an enclosed or clearly defined area of ground around a cathedral, church, temple, college etc.

Exemption is available only if the place is meant for general public. General public is also defined in the mega notification 25/2012-ST as the body of people at large sufficiently defined by some common quality of public or impersonal nature.

Conduct of religious ceremonies is exempt under Sr. no. 4 of mega exemption. Religious ceremonies are life-cycle rituals including special religious poojas conducted in terms of religious texts by a person so authorized by such religious texts. Occasions like birth, marriage, and death involve elaborate religious ceremonies.

Renting of precinct of a religious place as well as conduct of any religious ceremony, both shall be exempt. For example, if a marriage is performed in precincts of a church by renting of that place, it would be exempt. In certain decided cases, tribunals have held that marriage is a religious function.