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TMI Blog1977 (7) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... of these deductions on the ground that the relevant object in clause 4(g) of the trust deed of establishing, maintaining, running and helping gaushalas, panjarapoles and other similar institutions for animals, etc., was a religious object and, therefore, in view of clause 5, the trustees would be entitled to use the amount for non-charitable purposes and, therefore, this clause was held to violate section 80G(5)(ii). This view having been reversed by the Tribunal by following the binding decision in Vallabhdas Karsondas [1947] 15 ITR 32 (Bom), the Tribunal has referred the following question at the instance of the revenue : "Whether, on the facts and in the circumstances of the case, the Tribunal was correct in law in holding that the assessee was entitled to deduction under section 80G of the Act in respect of donation of Rs. 60,000 to P. G. Mehta Charitable Trust ?" This question is referred in the first reference. In the other two references the same question is referred and the only difference is as regards the amounts of donation. At the outset we would refer to the relevant provisions of the trust known as Parshottam Gordhandas Mehta Charitable Trust. The objects of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cue of dumb and infirm animals protected by panjarapoles or to assist the gaushalas kept for the well-being of bovine animals and only similar institutions were intended to be served by the philanthropic object of this entire charity. It is in the context of the aforesaid setting of this trust that we will have to consider the relevant provisions and the exemption in section 80G about deduction in respect of donation to a charitable fund or institution. Section 80G which provides for this deduction enacts in sub-section (2)(a)(iv) that it must be to any other fund or institution to which this section applies. Sub-section (5) provides that this section applies to donations to any institution or fund referred to in sub-clause (iv) of clause (a) of sub-section (2), only if it is established in India for a charitable purpose and if it fulfils the conditions set out therein. Condition in sub-section (5)(ii), which has been relied upon by the revenue as having been followed, runs as under : "(ii) the instrument under which the institution or fund is constituted does not, or the rules governing the institution or fund do not, contain any provision for the transfer or application at any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posed to selfishness. Therefore, the object beneficial to mankind or humanity is interpreted in a wide manner so as to embrace within its scope those acts of charity, which advance general public morality, alleviating suffering of weak, infirm animals or preventing cruelty to animals, encouraging compassionate feeling and tender treatment by protecting such domestic animals, by service of such animals or looking after and promoting the well-being of these domestic animals, including such bovine animals which are the mainstay of our agricultural community. Such objects are looked upon as proper objects of public charity in this country. In the earlier decision in Vallabhdas Karsondas Natha v. Commissioner of Income-tax [1947] 15 ITR 32 (Bom), the relevant question had arisen in the context of the two clauses 4 and 8 of the trust deed in question. Clause 4 was regarding supply of fodder to animals and cattle and clause 8 was regarding such other purpose beneficial to the Hindu community and Indians in general not falling under the preceding heads. The learned Chief justice, Stone C.J., considering clause 4, observed at page 44, that such a disposition, for supply of fodder to anima ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 122, was reproduced : "A gift for the benefit and protection of animals tends to promote and encourage kindness towards them, to discourage cruelty, and to ameliorate the condition of the brute creation, and thus to stimulate humane and generous sentiments in man towards the lower animals, and by these means promote feelings of humanity and morality generally, repress brutality, and thus elevate the human race." The borderline decision in In re Grove-Grady : Plowden v. Lawrence [1929] 1 Ch 557 (CA) was distinguished. Chagla J. then observed as under ([1947] 15 ITR 32, 49 (Bom)) : "It is perfectly true that the basis of holding a trust for the benefit of animals as a good charitable trust is that it falls within the fourth category of Lord Macnaghten's famous definition in Pemsel's case [1891] AC 531 (HL), namely, that it is a trust beneficial to the community. Whatever the view may be in England as to protection of animals and as to feeding of animals, we must consider what the views are in our own country, and it is patent that Indians as a race are extremely kindly disposed towards animals who have been the object of charity at the hands of many munificent donors." The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion would leave no doubt as to the object of the present trust even in clause 4(g) as being a charitable purpose. The learned standing counsel, however, wanted to rely on the two borderline English decisions in In re Grove-Grady : Plowden v. Lawrence [1929] 1 Ch 557 (CA), which was distinguished by Chagla J. in the aforesaid decision ; the trust was for founding, establishing and maintaining of a charitable institution to be called, "The Beaumont Animals Benevolent Society", and one of its objects was providing refuge for the preservation of "all animals, birds or other creatures not human". In the Court of Appeal, Lord Hanworth M.R. and Russel L.J. reversed the decision of Romer J. on the ground that although a trust if in its execution there was necessarily involved a benefit to the community, if that element was wanting, the trust would be bad. Even Lord Hanworth M.R., at page 570, pointed out the settled legal position of the English decisions which laid down that if the object was to enhance the condition of animals that were useful to mankind, or to secure good treatment for animals, whether those animals were useful to mankind or not, or to insure human conduct towards, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to take care of themselves were manifestations of the finer side of human nature, and gifts in furtherance of those objects were calculated to develop that side and were, therefore, calculated to benefit mankind. Even according to the view taken by Lord Hanworth M.R. in In re Grove-Grady [1929] 1 Ch 557 (CA), such a gift for the welfare of cats and kittens needing care and attention was with the object to prevent cruelty in relation to cats and kittens and had an elevating effect on mankind, and stood on the same footing as one whose object was to alleviate distress among cats and kittens. Therefore, the learned judge pointed out that this test of validity of charity of producing benefit to mankind would be satisfied in such charity for animals, especially when the animals were domestic animals because of the elevating effect on mankind. Therefore, these two borderline decisions in the context of obnoxious animals or in the context of vivisection, where this narrow test of producing benefit to mankind was not held to be satisfied could not be helpful in the present context, when the trust is for such domestic animals. Besides, the case has to be decided not by that English char ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the definition categorically laid down that, in order to bring the case within the fourth category of charitable purpose or advancement of any other object of general public utility, it was necessary to show that : (1) the purpose of the trust is the advancement of any other object of general public utility, and (2) the above purpose does not involve the carrying on of any activity for profit. What constitutes "business" activity was explained at page 243 and it was held that for the limitation to be attracted such a profit must pervade the whole series of transactions effected by the person in the course of his activities. In the concurring judgment by his Lordship Beg J. (as he then was), first, the entire history of this law about charity was examined. It was pointed out, at page 249, that the four-fold classification of charitable purposes had a history in English law. The statute of Elizabeth I had a preamble containing an illustrative list of charitable objects which was never treated as exhaustive, and in English law a purpose was considered, in the eye of law, to be charitable only if it came within the letter or the spirit and intendment of the preamble of the statute of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he income becomes entitled to exemption. That, in our opinion, is the most reliable test." Thereafter, the difficult question as to the meaning of the term "charitable purpose", which was only indicated in section 2(15), was examined. It was pointed out that a common concept or element of "charity" was shared by each of the four different categories of charity by observing as under --See ([1975] 101 ITR 234, 256 (SC) : "It is true that charity does not necessarily exclude carrying on an activity which yields profit, provided that profit has to be used up for what is recognised as charity. The very concept of charity denotes altruistic thought and action. Its object must necessarily be to benefit others rather than one's self. Its essence is selflessness. In a truly charitable activity any possible benefit to the person who does the charitable act is merely incidental or even accidental and immaterial. The action which flows from charitable thinking is not directed towards benefiting one's self. It is always directed at benefiting others. It is this direction of thought and effort and not the result of what is done, in terms of financially measurable gain, which determines that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... injunction to feed the poor was Narayan Seva for worship of God through service of man in a land where the divinity in Daridra Narayan is conceptually commonplace and, while it is overtly secular, its motive springs from spiritual sources. It is religion to love the poor. Likewise his insistence on the aviary and the menagerie and throwing open both to the people to see and delight is not a mundane mania but has deeper religious roots. Hinduism worships all creation : (Peace be unto all bipeds and so to all quadrupeds). Indeed, the love of sub-human brethren is high religion. "He prayeth best, who loveth best All things both great and small For the dear God who loveth us He made and loveth all. (Coleridge, in Ancient Mariner) From the Budha and Mahavira to St. Francis of Assissi and Gandhiji, compassion for living creatures is a profound religious motivation. The sublime mind of Mullick was obviously in religious sympathy with fellow beings of the lower order when he showed this tenderness to birds and beasts and shared it with the public. The art gallery too had link with religion in it's wider connotation although it is plainer to regard it as a gesture of aesthetic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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