El tratamiento del sexo

Before turning to an overview of circulation practices in Odisha, I briefly describe in this section a set of regulations that have received little to no attention in the literature on the Indian

newspaper industry: tax law. Income tax laws have been a significant player in shaping the actual form newspapers take in their pursuit of profit. But whereas commerce and profit are

complications for journalistic ethics, it is the ethical imperatives of journalism that are complications for tax law. Newspapers in India have been sticky financial objects for tax law since the 1930s, when three Sikh lawyers running a Lahore newspaper, which had been left to them in trust by a well-respected public figure 35 years prior, sought tax-exempt status for the newspaper’s income on the claim that all of the income was used to support the newspaper’s activities. The colonial Tax Commissioner at the time remarked that it “will be very difficult to say whether the running of a newspaper is an object of general public utility” (quoted in Trustees of Tribune Press v. The Commissioner of Income-Tax, 1939 41 BOMLR 1150), encapsulating the position of the income tax laws and legal decisions since then. In the case of the Lahore newspaper, the British Colonial Court ruled that the English-language newspaper did qualify as tax exempt, citing that “the object of the paper may fairly be described as ‘the object of

supplying the Province with an organ of educated public opinion’, and that it should prima facie be held to be an object of general public utility.”

In 1961-2, the Income Tax Act [ITA] reshaped taxation of individuals and corporations, including exemptions through the organization of charitable trusts. The 1961 ITA introduced the overarching clause that business enterprises may be included within the activities of charitable trusts without losing exemption, but then it added a restriction limited to those charitable trusts whose purpose is only “general public utility” that they must exclude “the carrying on of any activity for profit” (ITA Section 2(15), see also Direct Taxes Code Bill of 2009, page 29). This

created a sizable gap between charitable purposes focused on “relief of the poor, education, and medical relief” and those dedicated to the “general public utility.” Then-Finance Minister Morarji Desai, explained this new restriction to the taxation of charitable trusts precisely as a problem of newspapers:

"The definition of charitable purpose in that clause is at present so widely worded that it can be taken advantage of even by commercial concerns which, while ostensibly serving a public purpose, get fully paid for the benefits provided by them, namely, the newspaper industry which while running its concern on commercial lines can claim that by circulating newspapers it was improving the general knowledge of the public. In order to prevent the misuse of this definition in such cases, the Select Committee felt that the word not involving the carrying on of any activity for profit should be added to the definition."

This speech was quoted in subsequent legal judgments as the context for interpreting the

meaning of the ITA[1] (see also the Direct Taxes Code Bill of 2009, pages 27-55). Among post- ITA charitable trust legal decisions, the case of Sole Trustee, Lok Shikshana Trust v.

Commissioner of Income Tax, 1976 AIR 10, is the most relevant. The Lok Shikshana Trust was entirely devoted to the support of Kannada-language publications, including the publication of a Kannada-language newspaper; the Trust argued that its charitable purpose was, first, education, but that if in the Court’s eyes it did not qualify as educational, its purpose of “general public utility” still qualified it for tax-exemption because it was not operated “for profit” as interpreted as “private gain.” The Court majority opinion ruled against Lok Shikshana Trust, determining that “for profit” did not mean “for private gain” and that, therefore, all that the Court must do is determine the “carrying on of activities for profit.” In his widely cited independent opinion, Justice Beg detailed the incoming and outgoing monies of the Trust, including its growing investments, and described its operation by the sole Trustee as one that operated exactly like a

profit-oriented business. He concluded that this organization was an exemplar of exactly that “mischief” which the Finance Minister had sought to manage in his proposal of the ITA’s restrictions regarding profit by charitable trusts in 1961.

The implications of the 1961 Income Tax Act’s restrictions for Odishan newspapers may be seen in a judgment about the charitable trust owning the Odia-language newspaper Dharitri, Samajbadi Society v. Assistant CIT, 2001 79ITD112Ctk. In 2000, the Income Tax Appellate Tribunal [ITAT] for Odisha, based in Cuttack, considered the charitable status of the Samajbadi Society after the Society appealed a report by Odisha’s Commissioner (Appeals) of Income Tax. In a routine review of years 1974-5 and 1982-3, a reviewer had flagged concerns about the Samajbadi Society’s qualification for tax exemption. The earlier Commissioner’s report concluded that there should be no tax-exempt status for the Samajbadi Society based on it not actually functioning as a charitable trust. In contradiction to the Commissioner’s opinion, the ITAT held that the operation of a profitable enterprise would not by itself prevent an

organization from being charitable. The pivotal issue was, instead, that “the profits must necessarily feed a charitable purpose.” To the point of determining the nature and fact of this “charitable purpose”, the ITAT judgment quotes several discussions of the difference between charity and profit-motive at length from Loka Shikshana Trust. On the issue of the relationship between profit-motive and charitable purpose, the ITAT concludes:

Profit making must be the end to which the activity must be directed or in other words, predominant object of the activity must be making of profit. Where an activity is not pervaded by profit motive but is carried on primarily for serving the charitable purpose, it would not be correct to describe it as an activity for profit. But where, on the other hand, an activity is carried on with the predominant object of earning profit, it would be an activity for profit, though it may be carried on in

advancement of the charitable purpose of the trust or institution. Where an activity is carried on as a matter of advancement of the charitable purpose or for the purpose of carrying out the charitable purpose, it would not be incorrect to say as a matter of plain English grammar that the charitable purpose involves the carrying on of such activity, but the predominant object of such activity must be to subserve the charitable purpose and not to earn profit. The charitable purpose should not be submerged by the profit making motive; the latter should not masquerade under the guise of the former.

In the case of the Samajbadi Society, the ITAT concluded that “[the activity of the profit and the activity of the trust] are intermixed and interest to such an extent that it is difficult to bifurcate the two. One is not possible without the other.” Therefore, though the Samajbadi Society fulfilled the requirements of a charitable society in purpose, in practice it did not qualify for tax exemption in the years under consideration.

The language governing the taxation of charitable trusts has been changed numerous times since its first revision in 1984, though each change has built on the assumptions found in the case law seeking to limit those profitable activities qualifying as tax-exempt. In the Finance Act, 2008, this was expanded dramatically, barring all exemptions for charitable societies whose purpose is the “advancement of any other object of general public utility.” At a time when there was a broad global- and national-level push toward philanthropy and especially toward self- supporting (rather than grant-supported) aid organizations, the Finance Act of 2008 generated outrage. A common complaint is that, now, a large number of charitable organizations with obvious charitable intents29 no longer qualify for tax exempt status. Following significant

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of arts and music, promotion of language and literature, community centres, promotion of safe driving and road sense, animal welfare, promotion of sports, widow marriage, running a public park, running a newspaper, promotion of civic consciousness and promotion of research falling under the object of general public utility will all lose exemption, if they charge fees for some minor service or sell booklets

criticism, subsequent amendments have enabled allowances for certain amounts of profit. A profound shift in tax law is forthcoming with the immanent repeal of the 1961 ITA and its replacement by the Direct Tax Code sometime in 2013-4. Circulated in draft form in 2009, the Direct Tax Code will change the name of “charitable trusts and institutions” to “non-profit organization,” but otherwise it is currently set to reproduce the categories and restrictions of the Finance Act, 2008 (Rajaratnam 2010). Though there may have been some ambiguity in the 1961 ITA, it is now clear that there is no longer any charitable tax-exemption available for

organizations whose main purpose is the production of publications in any language. Organizations who can demonstrate that their general goals include the relief of poverty,

education, and medical relief may, however, claim tax-exempt status for their newspaper income, as in the case of the Servants of the People Society’s publication of the Samaja. This arguably marks the legal end of an era in which the promotion of the Indian public and its languages is itself seen as charitable, though we have yet to see how the Courts will manage the restrictions presented in these new laws. The overarching point of this discussion of tax laws is to point out that ambiguity or indeterminacy experienced in news production practices is mirrored on the national scale. While newspapers have been the focus of attempts to regulate their corporate activities and to discipline their journalistic activities on the basis of the threat of profit-motives to their functioning, tax laws have simultaneously been pushing newspapers into corporate, non- tax-exempt status.

pertaining to such objects, though incidental to such objects. The entire income including income from investments would also be liable for tax.” (Rajaratnam 2010)