TMI Blog2023 (7) TMI 496X X X X Extracts X X X X X X X X Extracts X X X X ..... l [ 1972 (9) TMI 9 - SUPREME COURT ], and CIT Vs P Mohanakala [ 2007 (5) TMI 192 - SUPREME COURT ] The plea of the appellant that the clerk in the first instance submitted the incorrect list as the original list was maintained in a language other than english hence certain errors were crept-in which has been rectified before the first appellate proceedings by bringing on record new list of correct donors failed to inspire any confidence to us, thus deserves to be rejected. The very conduct of the appellant made us to believe that the information filed during the original assessment proceedings is not correct or incomplete, thus failure to maintain the identity of the person indicating full name and full address. Thus all cash donation transactions are sham, a make believe story, a device adopted created to sleeve undisclosed income through anonymous donations - Decided against assessee. - ITA No.1919/PUN/2017 And ITA No.525/PUN/2022 - - - Dated:- 14-6-2023 - Hon ble Shri S. S. Godara, Judicial Member And Shri G. D. Padmahshali, Accountant Member For the Assessee : Shri Kishore Phadke For the Revenue : Shri Ramnath Murkunde ORDER PER G. D. PADMAHSHA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... identity of donors indicating name and address as prescribed u/s 115BBC of the ITA, 1961; as such taxation u/s 115BBC of the ITA, 1961 is uncalled for. 5. The appellant craves leave to add / alter / modify / delete / amend all / any of the grounds of appeal. 5. We shall first deal with the cross appeal of the assessee i.e. ITA No. 525/PUN/2022. 5.1 We note that, the impugned order was passed on 12/05/2017 and was served on the assessee on 13/062017. The extant cross appeal is filed on 12/07/2022 with a delay of 1796 days. The assessee submits that the first part of delay of 930 days i.e. from 11/08/2017 to 27/02/2020 was attributable to its unawareness of the fact of filing of the appeal by the Revenue. And 2nd part of the delay of 866 days falling within the exclusion ordered by the Hon ble Supreme Court in MA No. 665/2021 in SMW(C) No. 3/2020. 5.2 Before we advert to the merits of the controversy of the present Cross Appeal, from rival submissions, a short point that primarily arises for our determination as to Whether appellant have explained sufficient cause for condonation of 1st part of delay of 930 days in filing the present cross appeal or not? 5.3 Let ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereof is saved of limitation. c. Thus actual delay in instituting the present cross appeal consist of 1st part of 930 days delay from 13/06/2017 to 27/02/2020 i.e. falling much before the start of COVID-19 pandemic and such other fraction of delay commencing from the expiry of 90 days from 28/02/2022 till the institution of present cross appeal i.e. 12/07/2022. d. Needless to state that, in terms of provisions of section 253(3) of the Act, every appeal u/s 253(1) 253(2)of the Act shall be filed within sixty days of the date on which the order sought to be appealed against is communicated to the assessee or to the Principal Commissioner or Commissioner. e. As is evident from the averments made in the application for condonation of delay and affidavit filed by appellant that, Being the period in which, fact of filing of appeal by I-T department was not known by Appellant Assessee Trust . Apparently, the averments in the application and affidavit of the assessee are vague and are devoid of any basis. f. Further the Ld. AR appearing before us did not establish as to how the averments in the application or affidavit establishes sufficient cause towards 1st part of delay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tween the parties and to advance substantial justice. In this context it is worthy to note the law summarized at para 15 by the Hon'ble Supreme Court in Basawaraj and Anr vs- Special Land Acquisition Officer reported in L4 SSC 8U(SC) as; 15. The law on the issue can be summarized to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the sufficient cause which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bona fide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this Court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ash donations of ₹2,89,20,955/- received by it, the Ld. Income Tax Officer, Ward-1(1), Aurangabad [ AO hereinafter] by an order dt. 27/03/2014 framed the assessment by bringing to tax entire amount of cash donations as Anonymous u/s 115BBC of the Act. 6.3 Being aggrieved by the aforestated addition, the assessee preferred an appeal before Ld. FAA, who by the impugned order has granted a substantial relief to the assessee trust by restricting the Anonymous donation to ₹82,600/-. 6.4 Being aggrieved, both the Revenue and the Assessee are before us in present cross appeals. 7. During the course of physical hearing, the Ld. AR submitted that the assessee society had discharged the onus casted upon it by filing necessary details of various donors such as name, address and amount of cash donations etc. to the extent available. The Ld. AR withdrawing the ground number 4 of its cross appeal as not pressed contended that, upon the satisfaction that the appellant had maintained records as required under law, the Ld. CIT(A) has rightly restricted the Anonymous donation only to the extent attributable to unidentified donors i.e. ₹82,600/-. Au contraire, Ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of making donation in-spite receipt of letters/notices from the IT-Department. To concretise the basis, before culminating the assessment proceedings, the Ld. AO in 2nd set has issued letters to another 25 donors from list provided by the assessee. However in this round also 19 of such letters were returned unserved by postal authorities with similar remark insufficient address and reminder did not bother to reply, thus remained unconfirmed. 10.3 When self-serving confirmations and receipts failed inspire any confidence, therefore the Ld. AO as matter of last resort deputed his inspector to verify the identity of 10 random donors; however such exercise also remained futile. Consequently the appellant was put to show-case-notice, and in the event of effective failure on the part of appellant to discharge the onus casted upon it, the Ld. AO brought to tax the cash donations treating it as anonymous in nature u/s 115BBC r.w.s. 2(24)(iia) of the Act. 10.4 In the first appellate proceedings, the Ld. CIT(A) without first dealing with the objection of the Ld. AO raised against the admission of additional evidence submitted by the appellant in the form of new set of donor list , h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the incorrect list as the original list was maintained in a language other than english hence certain errors were crept-in which has been rectified before the first appellate proceedings by bringing on record new list of correct donors failed to inspire any confidence to us, thus deserves to be rejected. The very conduct of the appellant made us to believe that the information filed during the original assessment proceedings is not correct or incomplete, thus failure to maintain the identity of the person indicating full name and full address. As a result, on consideration of totality of facts circumstances, we are of the considered view that all cash donation transactions are sham, a make believe story, a device adopted created to sleeve undisclosed income through anonymous donations. Holding so, we do not see any infirmity in the order of assessment framed u/s 143(3) of the Act, but the order of Ld. CIT(A) in restricting the taxation of anonymous donation to ₹82,600/-. For the reason, we set-aside the impugned order of Ld. FAA and restore the order of assessment intact. 14. Resultantly, cross appeal of the assessee is DISMISSED and the appeal of the Revenue is ALLOW ..... X X X X Extracts X X X X X X X X Extracts X X X X
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