TMI Blog2024 (1) TMI 350X X X X Extracts X X X X X X X X Extracts X X X X ..... these observations the Tribunal dismissed the appeal of Revenue for A.Y. 2008-09[ 2022 (10) TMI 1220 - ITAT DELHI] on identical issue, upholding the conclusion of Ld. CIT(A) i.e., deletion of addition made by the A.O. on the allegation of anonymous donation. CIT(DR) could not show us any contrary factual position or order or judgment which may lead us to take a contrary or different view as taken by the Tribunal for AY 2008-09. Assessing Officer is directed to delete the addition. Decided in favour of assessee. - SHRI C.M. GARG, JUDICIAL MEMBER AND SHRI M. BALAGANESH, ACCOUNTANT MEMBER For the Appellant : Shri Ravi Pratap Mall, Adv For the Respondent : Md. Gayasuddin Ansari, CIT DR ORDER PER C. M. GARG, J. M.: 1. This appeal has been filed by the assessee against the order of the ld CIT(A)-30, New Delhi dated 28.03.2016 for AY 2012-13. 2. The assessee has raised the following grounds of appeal:- 1. That the Commissioner of Income-tax (Appeals) erred on facts and in law in affirming the action of the assessing officer in treating voluntary donations to the extent of Rs. 11,60,77,000 as 'anonymous donation' under section 115-BBC of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s received were non- genuine. The ld counsel again drew our attention towards orders of authorities below and submitted that the ld CIT(A) is not following the binding decision of the ld CIT(A) in assessee s own case for the earlier assessment year 2008-09, which was upheld by the Tribunal order 21.10.2022, which is gross violation of the principles of judicial discipline therefore, impugned orders of authorities below may kindly be set aside in deleting the addition made by the AO u/s 115BBC of the Act. He vehemently, pointed out that since the identical issue under similar circumstances has been decided by the Tribunal in favour of the assessee dismissing the appeal of Revenue, therefore, the issue is squarely covered in favour of assessee by the order of the Tribunal (supra) is assessee s own case. 3.1 The ld counsel further placing vehement reliance on the order of ITAT Delhi Bench dated 21.10.2022 in the cross appeal in assessee s own case of AY 2008-09 rendered in ITA No. 4775/Del/2015 (departmental appeal) and submitted that identical issue was decided in favour of the assessee by ld CIT(A) and the appeal of the revenue has been dismissed by the Tribunal by passing the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ors regarding donations made by them to the assessee. The ld CIT DR submitted merely because donations have been received though banking channels all the donor are having PAN, the donations shown by the assessee cannot be held as inconfirmity with the provisions of section 115BBC and other provisions of the Act and therefore, the AO rightly made adverse inference against the assessee. 7. The ld CIT(DR) further drawing our attention towards relevant operative para 5.7 of first appellate order submitted that the ld first appellate authority has granted part relief to the assessee by allowing donation from five donors amounting to Rs. 4 crores as genuine and rightly held that the donations in the name of remaining 32 alleged donors amounting to Rs. 11,60,77,000/- are anonymous as per amended of section 115BBC of the Act and therefore, no interference in favour of assessee was called for in the first appellate order on this issue. 8. The ld CIT DR also placed vehement reliance on the judgment of ITAT Agra Bench order, in the case of Shri Giriraj Educational and Welfare Society Vs. ITO and submitted that the failure of the assessee society to maintain proper records including name ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en there are the following three ingredients to be proved by the assessee:- (i) Identity of the creditor (ii) Genuineness of the transactions. (iii) Source and the creditworthiness of the creditor. (d) The provisions of section 115BBC of Income Tax provides that anonymous donation received by trust, educational institutional or hospital shall be charged @ 30% on the aggregate of anonymous donation received in excess of 5% of donation received by the assessee or Rs. 1,00,000/- 9. Therefore the assessee was given the list of persons/ concerns where notices u/s 133(6) were returned unserved or no reply have been received. The postal remarks mentioned in the undelivered notices were also communicated to him. He was asked to submit the requisite documents to prove the identity of persons, genuineness of transactions and credit worthiness of persons. 10. In response to same the assessee submitted the confirmations from some of the persons regarding the donations made by them to assessee trust. It is submitted by the assessee that the donations have been received through banking channels. All the donors are having PAN. Therefore the donation shown by it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eferred donations are not found genuine, therefore, it cannot be deemed to be income derived from the property held under the trust. Hence, no exemption u/s 11 of the Act is allowable out of the said amount. 15. Therefore, in view of the above fact, it is held that the assessee trust introduced amount of Rs. 15,60,77,000/- on account of donations by taking entries only. The assessee failed to give satisfactorily evidences regarding genuineness and creditworthiness of such persons. Therefore, amount of Rs. 15,60,77,000/- is treated as income of assessee as per the provisions of section 68 read with section 115BBC of the Income Tax Act. The deductions u/s 11 are therefore not allowable on the same. Therefore, the said amount of Rs. 15,60,77,000/- is treated as income of assessee from undisclosed source and added u/s 68/111BBC of the Income Tax Act. (Addition Rs. 15,60,77,000/-) 10. Further, from the relevant part of first appellate order we note that the ld CIT(A) granted part relief to the assessee and confirmation remaining part of addition amounting to Rs. 11,60,77,000/- with following observations and findings in para 5.7 of first appellate order which as follows ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eclare correct identity of the donors. The Ld. AR argued that the appellant have maintained disclosed such name address of donors during the assessment proceeding as accepted by the assessing officer in the original assessment order therefore section 115 BBC is not applicable to the facts of the case I have examined these arguments on the facts of the case perused original assessment order. As per para (5) of the original assessment order. the appellant has maintained the name address of all the donors, which has been reproduced in the assessment order Unless these details are proved to be wrong that these persons have not donated to the appellant, in my view the donation received cannot he said as anonymous donation by virtue of sub section (3) of section 115 BBC. I have perused the status of enquiry contained in para 6.1 6.2 of the original assessment order. In one donor namely M/s. Adivasi Mahila Vikas Samiti, it has been categorically stated that it has not made any donation to the appellant. The relevant portion of finding is contained in para 6.1 of the original assessment order reproduced as under:- 6.1 Here, it is pertinent to stress upon the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13(7) are not applicable. In view of the above facts I agree with the arguments of Ld. AR that even in case of unexplained cash credit us 68 the income have to computed in accordance with the provision of section 11 to 13 of I.T. Act. I have perused the judicial pronouncements relied by the Ld. AR on this issue. Since registration u/s 12AA is continuing in the case of the applicants, therefore. the appellant's income has to be computed in accordance with the provision of section 11 deduction on account of application has to be allowed. I rely on the following judicial pronouncements on this issues cited by Ld. AR. i) Commissioner of Income Tax vs. Uttaranchal Welfare Society (2013) 86 CCH 333 All HC. (2014) 364 ITR 398 (All) ii) Director of Income Tax (Exemptions) Anr. vs. Sri Belimatha Mahasamsthana Socio Cultural Educational Trust 336 ITR 694 High Court of Karnataka iii) Director of Income Tax (Exemption) vs. Bharat Kalyan Pratishthan (2002) 257 ITR 609 (Del) High Court of Delhi iv) Assistant Commissioner of Income Tax vs. Geetanjali Education Society (2008) 114 TTJ (Jd) 697 ITAT, Jodhpur v) Director of Income Tax vs. Raunaq Ed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allowed to prove the genuineness of the transactions before the AO. in remand proceedings, (v) In the remand proceedings, the A.O. has issued the notices u/s 133(6) of the Act, in 37 parties/donors, which were considered by the A.O. as non- genuine in the assessment proceedings. However, only in 5 above cases, genuineness is proved, having total donations of Rs. 4.00.00.000. In view of these facts, the objection of the appellant is not acceptable. since A.O. has issued notices u's 133(6) of the Act on the latest address provided in the appellate proceedings. It is surprising to note that now also, in 14 cases. notices have been returned back with the postal remarks no such premises, therefore, it is clear that appellant failed to provide the correct address, if they are genuine. In 18 cases, though notices were served, but no reply has been received in the given time by the A.O. in remand proceedings. Therefore, again genuineness is not proved. in absence of any reply/confirmations from the alleged donors. In view of the above, the genuineness of the donations to the extent of Rs. 4,00,00,000/-, stands explained. However, the balance of alleged donation of Rs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im of assessee the appellant has vehemently relied on the order of ld CIT(A) for AY 2008-09 in assessee s own case, wherein, the ld first appellate authority granted relief to the assessee by holding that the assessee has maintained complete particulars of donors and the copies notices issued u/s 133(6) of the Act by the AO were either remained unserved or not complied and no reply was received but the ld CIT(A) deleted the addition by holding that the assessee has maintained particulars of owner of donation received cannot be called anonymous donation. Based on said order, it is also a contention of ld counsel of assessee that the said order of ld CIT(A) for 2008-09 has been upheld by the Tribunal by order dated 21.10.2022 (supra) therefore, identical claim of assessee for AY 2012-13 should also be allowed and addition made by the AO may kindly be dismissed. 13. On the other hand, the ld. CIT(DR) has placed reliance on the order of ITAT Agra Bench in the case of Shri Giriraj Educational Welfare Society vs. ITO (supra)and order of ITAT Jaipur Bench in the case of Ramadevi Memorial Charitable Trust (supra) wherein the action of the Assessing Officer was approved because in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3,785/-] on account of non-genuineness and creditworthiness of the of the donors. The reason for such disallowance and its break-up are as under: 5.1.1. The A.O. did not allow any deduction on account of application of income as per the provisions of Section 11 of the I.T. Act, 1961 while computing the taxable income, but, however, allowed set-off of losses as per Income and Expenditure A/c. Thereafter, in the rectification order dated 27.05.2011 passed under section 154 of the I.T. Act, 1961, the A.O. allowed the application of income to the extent of Rs. 22,53,53,785/- under sections 11 and 12 of the I.T. Act, 1961 and, therefore, the total taxable income was computed at Rs. NIL as the application of income exceeded the income even after the addition of unexplained donation. The Ld. CIT(A) decided the issue by observing as under: 6. Aggrieved by the order of the Ld. CIT(A), the Revenue is now in appeal before the Tribunal. 7. Before us, the Ld. D.R. supported the order of A.O. 8. The Learned Counsel for the Assessee, on the other hand, reiterated the submissions made before the lower authorities and supported the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction of the AO are considered and evaluated in the light of findings and conclusion recorded by the ld. CIT(A) and coordinate bench of ITAT Delhi in assessee s own case for AY 2008-09 then we find that the first appellate authority has granted relief to the assessee on the identical issue having similar facts and circumstances with present AY 2012-13. From the order of the coordinate bench of the Tribunal for AY 2008-09 (supra), wherein the appeal of Revenue has been dismissed approving conclusion of ld. CIT(A) deleting the addition, we note that the Tribunal upheld the order of ld CIT(A) by observing that the provisions of Section 115BBC of the Act would not be applicable to the facts of the case. The Tribunal further noted that details of the names, addresses, their PAN card nos., cheque nos., dates and amounts of donation of the donors has not been proved to be wrong. He, therefore, held that for these reasons also the donation received by the assessee-trust cannot be considered to be anonymous donation by virtue of sub-section (3) of Section 115BBC of the I.T. Act, 1961. Before us, no fallacy in the findings of the Ld. CIT(A) has been pointed out by the Revenue. With these obs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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