TMI Blog2014 (1) TMI 1664X X X X Extracts X X X X X X X X Extracts X X X X ..... ot have referred the matter to D.V.O. without rejecting the books of account and, therefore, reliance placed on the report of the D.V.O. was misconceived - Decided in favour of assessee. ddition u/s 68 on account of unexplained corpus donation - the Revenue authorities have also applied the provision of section 115BBC of the Act - Held that:- As per sub section (3), unanimous donation are those donations for which no details of donors are maintained by the assessee. If the details are maintained, the donations cannot be called unanimous donation and provisions of section 115BBC cannot be invoked. In the instant case, undisputedly, the details were maintained by the assessee but the addition was made on account of non furnishing the confirmation letters. We are of the considered view that only those donations can be called unanimous for which details are not maintained. If it is properly maintained, it cannot be called unanimous donation. Since the assessee has maintained the details of donors, the donations cannot be called unanimous donation and provision of section 115BBC cannot be invoked in the given facts and circumstances of the case. If provision of section 115BBC cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exemption u/s 11 of the Act. While framing the reassessment, the Assessing Officer has made an addition u/s 68 of the Act on account of corpus donation having observed that the details of donors with regard to the corpus was not produced before the Assessing Officer. Other addition was also made in some of the assessment years on account of unexplained investment in the school building u/s 69 of the Act. 4. The assessee has preferred an appeal before the CIT(A) challenging the validity of the reopening of the assessment besides assailing the addition on merit. The contention of the assessee since the basis on which the reopening was made have been eroded by reversing the cancellation order of CIT by the Tribunal, the reopening is not valid. So far as survey proceedings are concerned, it was contended that the assessee has furnished all the information before the Assessing Officer, therefore, the reopening was done on account of change of opinion. The CIT(A) was not convinced with the contention of the assessee and held the reopening to be valid. But on merit, the CIT(A) was convinced with the contention of the assessee and has deleted the additions on both counts. With regard to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onation is squarely covered by the order of the Tribunal pertaining to assessment year 2005-06 in which corpus donation was introduced under similar circumstances and the Tribunal has deleted the additions having observed that once a particular credit or donation is already declared by the assessee, the same cannot be added again. The relevant observation of the Tribunal are extracted hereunder: 19. We have considered the rival submissions and perused the material on record. In our considered view, the addition in respect of donations of ₹ 1,13,00,308/-, addition of ₹ 1,00,000/-, addition of ₹ 46,71,371/- and addition of ₹ 8,35,000/- cannot be sustained again once it has been declared by the society as income/receipt. No double addition is called for. Even if a particular donation or credit cannot be proved and the assessee at the time of filing of the return declared the same as its income and further addition u/s 68 of such amount cannot be made. In this regard, we refer to the decision of the Hon'ble Delhi High Court in the case of DIT Exemption vs Keshav Social Charitable Foundation, 278 ITR 152 (supra), wherein it is held as under: T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of Income-tax (Appeals) held that the assessee was a public charitable institution and set aside the assessment with a direction to the Income-tax Officer to consider whether the assessee satisfied the requirements of sections 12, 12A and 13 of the Income-tax Act, 1961. The Tribunal held that the Commissioner of Income-tax (Appeals) ought not to have given the direction. On a reference: Held, (i) that the provisions contained in section 11 concerning the exemption of a public charitable institution do not take automatic effect. They take effect subject to the fulfillment of the conditions specified in the other provisions such as sections 12, 12A and 13 of the Act. The Income-tax Officer did not go into these aspects because he refused the assessee's claim under section 11. But once the Commissioner of Income-tax (Appeals) held that the assessee was a public charitable institution, it was necessary to examine whether the conditions specified for exemption in sections 12, 12A and 13 were fulfilled. The Commissioner of Income-tax (Appeals) was justified in issuing the direction to the Income-tax Officer to do so; (ii) that the Tribunal was under an obli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccordingly confirm the order of CIT(A). Since the assessee got relief on merit in both the years, we do not find any justification to enter into controversy with regard to the validity of the reopening of the assessment. I.T.A. No.607/Lkw/2013 608/Lkw/2013 7. These appeals are preferred by the assessee against the order of CIT(A) on common grounds i.e. with regard to the addition made u/s 68 of the Act. We, however, for the sake of reference, extract grounds raised in appeal no.607/Lkw/2013 as under: 1. Because the CIT(A) has erred on facts and in law in upholding the addition of ₹ 26,13,080/- made by the Assessing Officer by applying the provisions of section 68 of the Act, which addition is contrary to facts, bad in law for the reason that the provisions of section 68 are not applicable to the facts of the instant case. 2. Because on a proper consideration of facts and circumstances of the case, it would be found that the addition of ₹ 26,13,080/- received on account of Corpus Donation , is not anonymous donation in terms of Section 115BBC(3) as defined therein. The addition made is contrary to the provisions of law be deleted. 3. Because on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... addition made was deleted. With regard to the addition made u/s 68 during assessment year 2008-09, the learned counsel for the assessee has invited our attention to sub section (3) of section 115BBC, according to which the unanimous donation means any voluntary contribution referred to in sub section (iia) of clause 24 of section 2 where a person receiving such contribution does not maintain a record of the property indicating the name and address of the person making such contribution and the address as made be prescribed. The learned counsel for the assessee further contended that assessee has maintained the complete details of donors but it was simply added on account of non filing of the confirmation letters of the donors. Therefore, the donation received by the assessee cannot be called to be unanimous donation for the purpose of section 115BBC of the Act. In support of his contention, the learned counsel for the assessee has invited our attention to the orders of the lower authorities that before the lower authorities, complete details of the donors were furnished, therefore, on account of non furnishing of confirmation letters, the donation cannot called unanimous donation f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10.1 As per sub section (3), unanimous donation are those donations for which no details of donors are maintained by the assessee. If the details are maintained, the donations cannot be called unanimous donation and provisions of section 115BBC cannot be invoked. In the instant case, undisputedly, the details were maintained by the assessee but the addition was made on account of non furnishing the confirmation letters. We are of the considered view that only those donations can be called unanimous for which details are not maintained. If it is properly maintained, it cannot be called unanimous donation. Since the assessee has maintained the details of donors, the donations cannot be called unanimous donation and provision of section 115BBC cannot be invoked in the given facts and circumstances of the case. If provision of section 115BBC cannot be invoked, the addition made u/s 68 are to be deleted in the light of the order of the Tribunal in assessee's case for assessment year 2005-06 and the judgment of Hon'ble High Court in which under the identical facts, the additions made by the Revenue u/s 68 on account of unexplained corpus donation were deleted. We accordingly ..... X X X X Extracts X X X X X X X X Extracts X X X X
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