It depends on two conditions, and application of the profits is not one of them. Section 11(4A) says the exemption does not apply to profits and gains of business unless the business is incidental to the attainment of the objectives of the trust and separate books of account are maintained for it. Both have to be satisfied. The Supreme Court in ACIT v. Thanthi Trust read the first condition broadly enough to be met where the income is used for the objects — but that is a reading of the word 'incidental', not a substitute test, and the separate books condition stands on its own. For a general public utility trust the proviso to s.2(15), with both of its conditions, has to be cleared before any of this is reached.
Start with the words, because the version that circulates is not them. Section 11(4A) reads: "Sub-section (1) or sub-section (2) or sub-section (3) or sub-section (3A) shall not apply in relation to any income of a trust or an institution, being profits and gains of business, unless the business is incidental to the attainment of the objectives of the trust or, as the case may be, institution, and separate books of account are maintained by such trust or institution in respect of such business."
That gives two cumulative conditions — incidental to the attainment of the objectives, and separate books of account for the business — and it gives no third condition about where the profits go. Application of income to the objects is a requirement, but it is the requirement in section 11(1) that operates on all the trust's income; it is not the section 11(4A) test. A reply that says only "the profits were spent on our religious purposes" has answered a question the sub-section does not ask, and has said nothing about separate books.
Note also what the sub-section does not distinguish. It speaks of "a trust or an institution" without any division between religious and charitable. There is no separate rule for a religious trust here. The provisions that do turn on the religious or charitable character of a trust sit elsewhere — section 115BBC(2) for anonymous donations, section 13(1)(b) for a charitable trust for the benefit of a particular religious community or caste — and neither of them is about business income.
Section 11(4) is the companion provision and does something different. It provides that for the purposes of section 11 "property held under trust" includes a business undertaking so held, and that where the claim is made that the income of such an undertaking is not to be included in total income, the Assessing Officer has power to determine the income of the undertaking in accordance with the provisions of the Act relating to assessment; where the income so determined is in excess of the income shown in the accounts of the undertaking, the excess is deemed to be applied to purposes other than charitable or religious purposes. In plain terms: the officer may recompute the business income under the ordinary computation provisions, and any difference between his figure and the book figure is automatically treated as not applied to the objects. That is a real exposure for a trust whose business accounts carry disallowable expenditure, and it is one reason the separate books have to be capable of standing up to an ordinary assessment.
On the meaning of "incidental", the authority is the Supreme Court in ACIT v. Thanthi Trust (2001) 247 ITR 785. The trust published a newspaper and used the surplus for education and relief of the poor. The Court held that the sub-section as substituted with effect from 1 April 1992 is more beneficial to a trust than the one it replaced, and that "A business whose income is utilised by the trust or the institution for the purpose of achieving the objectives of the trust or the institution is, surely, a business which is incidental to the attainment of the objectives of the trust." It recorded that the income of the newspaper had been employed to achieve the objectives and that separate books had been maintained. So on that reading the connection required is one of destination rather than of subject matter — the business need not itself be an act of charity. Two cautions. First, the Court said this while also noting that separate books had been kept; it is not authority for waiving that condition. Second, it is a reading of the statute as it stood, and it has been qualified since.
The qualification is the proviso to section 2(15). A trust whose object falls in the residual limb — the advancement of any other object of general public utility — is not charitable at all if it carries on an activity in the nature of trade, commerce or business, or an activity of rendering a service in relation to trade, commerce or business, for a cess or fee or any other consideration, unless two conditions are both satisfied: (i) "such activity is undertaken in the course of actual carrying out of such advancement of any other object of general public utility", and (ii) "the aggregate receipts from such activity or activities during the previous year, do not exceed twenty per cent of the total receipts, of the trust or institution undertaking such activity or activities, of that previous year". Clearing the receipts test alone does not clear the proviso; the actual-carrying-out condition is the one Ahmedabad Urban Development Authority spent most of its reasoning on. The Supreme Court in ACIT (Exemptions) v. Ahmedabad Urban Development Authority (2022), which this library already carries, held that section 11(4A) has to be read harmoniously with section 2(15). For a general public utility trust, therefore, clearing section 11(4A) is not enough; the receipts test in the proviso has to be cleared as well. For a trust for relief of the poor, education, medical relief, or a religious trust, the proviso does not apply and section 11(4A) is the operative gate.
Institutions approved under section 10(23C) face the same structure through their own provisos, and the Supreme Court's decision in New Noble Educational Society v. CCIT — also in this library — is the authority on how a society running incidental activities alongside education is assessed there.
Trusts run canteens, guest houses, publication units, kalyana mandapams, pharmacies and training programmes, and the officer's first move is to carve the receipts out as business income under section 11(4A). The version of the test that most practitioners reply with — that the profits were applied to the objects — is not the statutory test and leaves the separate books point unanswered, which is the point the officer will actually decide on. Knowing that section 11(4) lets him recompute the business income and deem the excess to be unapplied also changes how the business accounts should be kept in the first place.
We charge fees for our public utility work. Does that cost us charitable status under s.2(15)?
A binding decision that covers my point was never considered when my order was passed. Is that a mistake apparent from the record?
My trust already has registration under section 12A. Can the Assessing Officer go behind it and re-examine whether the objects are charitable?
Our trust runs a business and puts the profit into its objects. Does s.11(4A) still deny the exemption?
Our trade association promotes commerce in our industry, but the work it does throws up a surplus every year. Does the surplus stop it being charitable?
Our trust benefits one caste. Can that be a charitable purpose at all?
Our trust was formed weeks ago and has done nothing yet. Can registration be refused for that?
My trade association only helps its own trade and its members get a benefit from it — can it still be charitable?
Every page in this library links to what it was written from, so you can check it rather than take our word for it.