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2019 (6) TMI 589 - ITAT MUMBAIRectification u/s 254 - evidences to prove corpus donations - allow benefit of carry forward of loss u/s 72 - mistake apparent on record - HELD THAT:- We find that the Tribunal has recorded its categorical finding in light of facts brought out by the lower authorities and also evidences filed by the assessee during the course of hearing to come to the conclusion that the assessee has failed to file necessary evidences to prove that donations are in fact corpus donations which shall not form the income of the trust u/s 11. For the earlier years, the Tribunal has set-aside the issue to the file of the AO to ascertain correct facts on respect of donations received by the assessee but for the years under consideration, the lower authorities have given categorical facts in light of list of donors and evidences filed by the assessee to prove corpus donations and held that the assessee has not filed any evidences to prove that those donations are corpus donations. Even before us, no further evidences have been filed to controvert the findings of fact recorded by the lower authorities. Under those facts, the Tribunal has concurred with the finding of the CIT(A) in so far as the issue of corpus donations are concerned. The facts involved in these years when compare to previous financial year are different, therefore, the Tribunal has decided not to follow the findings recorded by the Tribunal while set-aside the issue to the file of the AO. The facts and errors brought by the assessee in its miscellaneous application in respect of corpus donations is not a mistake apparent on record, which could be rectify u/s 254(2) Carry forward and set off of loss u/s 72 - HELD THAT:- This issue has been set-aside to ascertain correct facts in light of provisions of section 72 and 70 of the Act and if conditions prescribed u/s 72 and 70, then the AO is directed to allow the benefit of set off of losses as claimed by the assessee. Therefore, we are of the considered view that there is no error in the order of the Tribunal as pointed out by the assessee which could be rectified u/s 254(2) and hence the argument advanced by the ld. Counsel for the assessee are rejected. Accordingly, miscellaneous applications filed by the assessee for AYs 2005-06 to 2009-10 are dismissed. Denial of exemption u/s 11 - HELD THAT:- Tribunal has recorded its findings in light of facts brought out by the lower authorities and evidences filed by the assessee and discussed the issue. We further noted that in para-12, the Tribunal has recorded categorical finding that the assessee could not file any evidences to controvert the findings and facts recorded by the lower authorities and this was confronted to the Ld. AR for the assessee and the Ld. AR has fairly accepted that the violation referred to in section 13(1)(c) were continued in subsequent years. Under those facts, the Tribunal came to the conclusion that assessee is not entitled for exemption u/s 11. Therefore, we are of the considered view that there is no error in the findings of the Tribunal in so far as the issue of denial of exemption u/s 11. Hence, we are of the considered view that there is no merit in the miscellaneous application filed by the assessee for AYs 2012-13 to 2014-15 and hence, the same are dismissed.
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