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2019 (5) TMI 1057

tity of the donors, the addition cannot be made u/s 68 in the case of the trust as it has already been offered as an income. The identical issue arose before the Hon‟ble Delhi High Court in the director of income tax exemption vs Keshav social and charitable foundation [2005 (2) TMI 84 - DELHI HIGH COURT] wherein the Court held that when an income is credited to the income and expenditure account by the assessee trust then provisions of section 68 does not apply. Honourable High Court recognized that the situation may be different in case of corpus donation. As in the present case the amount of donation as held by the CIT - A is normal income already offered by the trust, these fact has never been controverted by the DR, respectfully following the decision of the Hon‟ble Delhi High Court, we uphold the decision of the learned CIT - A that the addition u/s 68 of the above donation cannot be made. Whether a normal donation or a corpus donation, cannot be termed as anonymous donation u/s 115BBC? - HELD THAT:- Sub-section (3) defines “anonymous donation” to mean any voluntary contribution referred to in section 2(24)(iia), where a person receiving such contribut .....

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b) That the handwriting expert engaged by the AO in the course of assessment proceedings opined that the signatures of the donors on the confirmations did not tally with the signatures on the affidavits. (c) That assessee also failed to prove the genuineness of the transactions and creditworthiness of the donors and assessee did not discharge the onus cast on it u/s 68 of IT Act, 1961. Reliance is placed on the following case laws:- I. CIT Vs. Ashok Timber Industries (Cal) 125 ITR 336 II. Basantipur Tea Co. (P) Ltd. Vs. CIT (Cal) 180 ITR 261 III. CIT v/s Korlay Trading Co. Ltd. (Cal.) 232 ITR 820. IV. Krishan Kumar Jhanb v/s ITO and Anr (Punjab & Haryana) 17 DTR 249 V. M/s Sejai International Ltd v/s CIT Meerut (All.) Appeal No.306 of 2010. VI. CIT Vs Durga Prasad More, 82 ITR 540(SC) VII. CIT Vs P. Mohnakala, 291 ITR 278 (SC) VIII. CIT Vs Sumati Dayal, 214, ITR 801 (SC) IX. ITO Vs Diza Holdings Pvt. Ltd. 255 ITR 573 (Kerla) 2. Whether in the facts and circumstances of the case the Ld. CIT (A) has erred in law in holding that the section 115 BBC of the I.T. Act 1961 inserted by the Finance Act 2006 w.e.f. 01/04/2007 was not applicable to the case despite clear mandatory provisi .....

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t the person whose name is given in the confirmation has not signed the documents but some other person assigned 8. Further in many of the confirmations the amount of donation differed from the amount of confirmation and even from the affidavits filed by the donors. It was further noted that the donors and stated to have donated the amount on different dates but the total donations has been shown by the assessee as cash in hand on 31/3/2009. The learned AO further noted that it is out of the imagination that when the assessee was having bank accounts then why the assessee would retain this amount as cash in hand as on the close of the year. Therefore he held that the so-called donation is for assessee‟s undisclosed money. Based on this the learned AO held that deposits by way of donation are nothing but the unexplained cash credit in terms of the provisions of section 68 read with the provisions of section 115BBC of the income tax act and accordingly they are rendered to the income of the assessee under the head income from other sources. The learned assessing officer further denied the benefit of section 11 and 12 of The Income Tax Act. Consequently the assessment order u/s .....

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000/- from 1038 individuals and ld CIT (A) has noted that same is credited to the income and expenditure account of the assessee, However ld AO has noted that same is credited as Corpus Donation. During the course of assessment proceedings the assessee produced multiple details with respect to the various donors which establish the identity of those donors. The learned assessing officer on examination of the various details with respect to these donors and stated that there are several infirmities in the details furnished by the assessee, he made an addition of the about some u/s 68 of the income tax act and also applying the provisions of section 115BBC of the act. The learned CIT - A has categorically recorded a finding that above donation is normal donation which has been offered by the assessee as income. The claim of the AO is that same is a corpus donation. Corpus donation is never credited to the income and expenditure account of the trust whereas the normal donation is credited to the income and expenditure account as income. If a normal donation is doubted by the AO about its genuineness, and identity of the donors, the addition cannot be made u/s 68 of the income tax act .....

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ion 10(23C)(iiiad) and (vi) ; (iii) any hospital or other institution referred to in section 10(23C)(iiiae) and (via) ; (iv) any fund or institution referred to in section 10(23C)(iv) ; (v) any trust or institution referred to in section 10(23C)(v) ; 10. The anonymous donations will not be covered if donations received by any trust or institution created or established wholly for religious purposes or donations received by any trust or institution created or established for both religious as well as charitable purposes other than any anonymous donation made with a specific direction that such donation is for any university or other educational institution or any hospital or other medical institution run by such trust or institution. Sub-section (3) defines anonymous donation to mean any voluntary contribution referred to in section 2(24)(iia), where a person receiving such contribution does not maintain a record consisting of the identity of the person making such contribution indicating the name and address of the person and such other particulars as may be prescribed. We asked whether the central board of direct tax as prescribed any particulars which is required to be maintained .....

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