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TMI Blog2024 (2) TMI 1241X X X X Extracts X X X X X X X X Extracts X X X X ..... ed order dated 30th November 2023 allegedly giving effect to the order of Income Tax Appellate Tribunal ("ITAT") records the total taxes paid by Petitioner at Rs. 40,06,299/-. Mr. Tiwari submits that the order giving effect, impugned in the petition, has not correctly given effect to the order of ITAT and the Income Tax Computation Form dated 30th November 2023 wrongly records that after adjusting the tax of Rs. 40,06,299/- paid by assessee, a further amount of Rs. 4,23,47,009/- is payable. Mr. Tiwari submits that the Assessing Officer ("AO") has not even bothered to consider the order of the Hon'ble ITAT and has simply reproduced and proceeded to do what was done in the original assessment order that came to be impugned by assessee. 4. Assessee admittedly is a charitable organization under Section 12A of the Income Tax Act, 1961 ("the Act"). Paragraph 2 of the original assessment order dated 26th December 2019 under Section 143(3) of the Act for Assessment Year ("AY") 2017-2018 records, "the assessee is registered as charitable organization under Section 12A of the Act and runs a temple and community hall at Bangur Nagar, Goregaon, Mumbai. The details filed by assessee has been p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disallowed. 8. Before we proceed further, we would make an observation that this amounted to reviewing the earlier assessment order, which the AO was not authorized to or empowered to. As held in Jindal Photo Films Limited v. The Deputy Commissioner of Income Tax [1998] 234 ITR 170 (DELHI)., "If that were not the legal position, it would result in placing an unrestricted power of review in the hands of the assessing authorities depending on their changing moods." It amounted to a change of opinion because the earlier AO has already given a finding that Petitioner was entitled to exemption under Section 11 of the Act. 9. The new AO completed the assessment and passed an order afresh on 23rd February 2022 assessing the income at Rs. 7,75,34,407/-. He held that out of this amount, a sum of Rs. 3,07,77,671/- being cash deposited by Petitioner, was assessable under Section 69A of the Act and, therefore, came in the purview of Section 115BBE of the Act. This is notwithstanding in the assessment order dated 26th December 2019 (first assessment order), the AO had accepted the expenses of Petitioner as bona fide expenses to the tune of Rs. 3,96,77,300/- and had even deducted the amount fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. That the appellant craves leave to reserve to himself the right to add to, alter or amend any of the aforesaid grounds of appeal before or at the time of hearing and to produce such further evidence, documents and papers as may be necessary." 12. The ITAT, by an order dated 15th May 2023, accepted the plea of Petitioner that for assessment year in question Petitioner's total income should be computed as 'Nil' as against Rs. 7,75,34,410/- assessed by the AO in the assessment order dated 23rd February 2022 in pursuance to the order under Section 263 of the Act. Paragraph 6 of the order of ITAT reads as under : "6. In the light of above discussion on judicial pronouncements and factual matrix of the case, we are of the considered view that section 69A has no applicability in the present case, hence section 115BBE of the Act. Accordingly, Ground Nos. 1 & 2 raised by the assessee is allowed." 13. While coming to this conclusion, the ITAT has also correctly recorded that Section 69A of the Act was not applicable to the facts and circumstances of this case. So also, the provisions of Section 115BBC of the Act because Sub-section (1) of Section 115BBC will not apply to donations ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons made with a direction that such donation is for university, medical institution etc. When we read clause (a) and clause (b) of sub-section (2) in harmony and in conscience with each other then it becomes clear that the provisions of sub-section (1) will not apply to the donations like that has been received by the assessee in donation boxes from numerous devotees who have offered the offerings on account of respect, esteem, regard, reference and their prayer for the deity/siddha peeth. Such type of offerings are made/put into the donation box by numerous visitors and its generally not possible for any such type of institutions to make and keep record of each of the donor with his name address etc. Even sometimes the donors out of their esteem, respect and regard and selflessness they do not want that their name be registered as a donor before the deity for whom they make the prayer in the belief that the deity is the ultimate giver of all the worth and virtues of their life. Now reverting to the definition of anonymous donations under sub-section (3) of section 115BBC, it is found that it has been mentioned that anonymous donations means voluntary contributions where the person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iewed the order. The ITAT having accepted Petitioner's plea that for the assessment year in question, Petitioner's total income should be computed as 'Nil', the only task before the AO was to issue refund to Petitioner of all taxes paid or recovered from Petitioner for AY 2017-2018. Since before the Hon'ble ITAT there was no controversy as regards the date of filing of return by Petitioner or Form 10B, the AO cannot, in the garb of giving effect to the order of ITAT, initiate a new controversy. 16. In the circumstances, in our view, the order giving effect dated 30th November 2023(impugned in the petition) has to be quashed and set aside. Ordered accordingly. 17. As observed in Credit Swiss Business Analysis (India) Pvt. Ltd. v. ACIT, Circle-15(1)(2), Mumbai (2016) 72 taxmann.com 131 by ITAT, for determining the due taxes the AO should avoid bringing far-fetched fancies and ideas. Without understanding the basic philosophy of income tax, provisions are referred to so that any assessee can be taxed at any cost. It is not a fair or judicious approach to deal with the subjects of the State. 18. Ms. Gokhale, Counsel for the Department states that within two weeks an order giving eff ..... X X X X Extracts X X X X X X X X Extracts X X X X
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