Assistant Commissioner of Income Tax (Exmp), Raipur V. M/s Shri Bhagwan Mahaveer Jain Educational & Cultural Society, Raipur

ITA 103/RPR/2018

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 2735 (ITAT-RAIPUR)
• Duration Of Justice: 3 year(s) 11 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-05-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2013-2014
• Appeal Filed On: 31-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Capital asset; Depreciation; Charitable institution
• Section: 11; 133(6); 12A

Judgement Text

आयकर अपीलȣय अͬधकरण Ûयायपीठ रायप ु र मɅ। IN THE INCOME TAX APPELLATE TRIBUNAL, RAIPUR BENCH, RAIPUR (Through Virtual Court) BEFORE SHRI RAVISH SOOD, JUDICIAL MEMBER AND SHRI JAMLAPPA D BATTULL, ACCOUNTANT MEMBER आयकर अपील सं. / ITA No. 68/RPR/2018 Ǔनधा[रण वष[ / Assessment Year : 2013-14 Shri Bhagwan Mahaveer Jain Educational and Cultural Society, C/o. MATS University Campus, Pagaria Complex, Pandri, Raipur (C.G.)-492 001. PAN : AAATB6871G .......अपीलाथȸ / Appellant बनाम / V/s. The Assistant Commissioner of Income Tax (Exemption) Raipur (C.G.) ......Ĥ×यथȸ / Respondent आयकरअपीलसं. / ITA No. 103/RPR/2018 Ǔनधा[रणवष[ / Assessment Year : 2013-14 The Assistant Commissioner of Income Tax (Exemption) Raipur (C.G.) 2 M/s. Shri Bhagwan Mahaveer Jain Educational & Cultural Society, Raipur ITA No. 68 & 103/RPR/2018 .......अपीलाथȸ / Appellant बनाम / V/s. Shri Bhagwan Mahaveer Jain Educational and Cultural Society, New Bus stand, Pandri, Raipur (C.G.)-492 001 PAN : AAATB6871G ......Ĥ×यथȸ / Respondent Assessee by : S/shri Akshay Ringasia, AR & Rajesh Kumar, AR Revenue by : Shri G.N Singh स ु नवाई कȧ तारȣख / Date of Hearing :10.02.2022 घोषणा कȧ तारȣख / Date of Pronouncement : 09.05.2022 आदेश/ ORDER PER RAVISH SOOD, JM: The present cross-appeals filed by the assessee and revenue are directed against the order passed by the CIT(Appeals)-1, Raipur, dated 01.02.2018, which in turn arises from the order passed by the A.O under Sec.143(3) of the Income-tax Act, 1961 (for short ‘the Act’) dated 30.03.2016 for assessment year 2013-14. 3 M/s. Shri Bhagwan Mahaveer Jain Educational & Cultural Society, Raipur ITA No. 68 & 103/RPR/2018 Before us the impugned order has been assailed by the assessee on the following grounds of appeal: “1. That the Ld. Commissioner of Income Tax (Appeal)-1, Raipur erred on confirming the disallowance of depreciation of Rs.2,65,06,786/- made by the AO by considering the same as additional claim. 2. That the appellant craves leave to add, to alter, to withdraw, to amend the above ground of appeal before or at the time of the hearing of the appeal.” On the other hand the revenue has challenged the impugned order on the following grounds of appeal: “1. Whether on points of law and on facts & circumstances of the case, the Ld. CIT(A) was justified in deleting the addition of Rs.1,92,00,000/- made by the AO on account of anonymous donation u/s.115BBC of the I.T. Act, 1961? 2. Whether on points of law and on facts & circumstances of the case, the Ld. CIT(A) was justified in directing to allow the anonymous Corpus donation of Rs.1,92,00,000/- held as income u/s.115BBC of the Act, benefit of section 11 to the assessee society? 3. Whether on points of law and on facts & circumstances of the case, the Ld. CIT(A) has erred by giving a finding which is contrary to the evidence on record, as the Ld. CIT(A) has accepted the submission of the assessee which has no evidentiary value and which was found not true on verification by the AO? 4. Whether on points of law and on facts & circumstances of the case, the Ld. CIT(A) has erred by giving a decision in favour of the assessee and against the revenue though there is no nexus between the conclusion of fact and primary fact upon which conclusion is based? 5. The order of LD. CIT(A) is erroneous both in law and on facts?” 2. Succinctly stated, the assessee society which is registered as a charitable Institution u/s. 12AA(b) of the Act vide F. No. CIT/RPR/ Tech/12A /25/2007-08/536, dated 18.06.2007 by the CIT, Raipur, had filed its return of income for the assessment year 2013-14 in the 4 M/s. Shri Bhagwan Mahaveer Jain Educational & Cultural Society, Raipur ITA No. 68 & 103/RPR/2018 status of a trust on 30.09.2013, declaring nil income. Subsequently, the case of the assessee was selected for scrutiny assessment u/s. 143(2) of the Act. 3. Observing that the assessee had claimed deduction of Rs.2,65,06,786/- on account of depreciation on fixed assets of the institution/society, the A.O called upon it to justify its said claim of deduction. In reply, it was claimed by the assessee that it had claimed depreciation on the fixed assets in order to preserve the corpus of the trust. However, the A.O was of the view that now when the cost of the assets had been allowed in the year of acquisition as an application of the assessee’s income u/s 11(1) of the Act, the allowing of its claim for depreciation would tantamount to a double benefit, thus, disallowed the same. In order to support his aforesaid conviction the A.O had relied on the judgment of the Hon’ble High Court of Kerala in the case of Lissie Medical Institutions Vs. CIT (2012) 384 ITR 344 (Ker.). 4. Also, it was observed by the A.O. that the assessee society had during the year under consideration claimed to have received “corpus donations” of Rs.4,19,70,000/-. On a perusal of the details, it was 5 M/s. Shri Bhagwan Mahaveer Jain Educational & Cultural Society, Raipur ITA No. 68 & 103/RPR/2018 observed by the A.O. that the ‘corpus donations’ comprised of, viz. (i) donations received from 87 persons PAN holders : Rs.35,40,000/-; and (ii) donations received from 7680 persons having no PAN no. : Rs.3,84,00,000/-. On being called upon to furnish the list of donors with their complete names and addresses a/w. letters on their part that the donations were given by them for a specific purpose, i.e., towards corpus of the trust, the assessee placed on record a list of 7767 persons [7680 persons without PAN + 87 persons with PAN] who had given donations to the assessee society during the year under consideration. Also the assessee placed on the assessment record donation letters of few persons a/w copies of donations receipts. In order to verify the genuineness and veracity of the aforesaid corpus donations the A.O. randomly selected 14 persons (out of the aforesaid donors) and directed the assessee to produce them for necessary examination before him. In compliance, the assessee is stated to have attended alongwith 4 persons (out of the aforesaid 14 persons). The Assessing Officer recorded the statements of the aforesaid 4 persons, wherein, 2 persons denied of having given any donation and expressed their unawareness about the activities of the assessee society, as well as denied of having signed any donation 6 M/s. Shri Bhagwan Mahaveer Jain Educational & Cultural Society, Raipur ITA No. 68 & 103/RPR/2018 letters which were confronted to them. As regards the remaining 2 persons, one of them, viz. Shri Ramadhar Yadav stated that he had though given money amounting to Rs.5000/- to the assessee society/college, but the same was on account of fees of his son who had studied in MATs college during the year. Also, he denied of having given any donation to the college as well as signing of any donation letters. On the other hand, the other person, viz. Shri Ghanshyam Sahu stated that though he had given a donation of Rs.5000/- to MATs college at the time of admission of his wife Smt. Jayshree Sahu, but denied of having signed any donation letter. On being asked to differentiate between “corpus donation” and “general donation”, he expressed his unawareness about the same. It was rather stated by him that he had referred to the donation in question as a ‘corpus donation’ for the reason that it was so printed/stamped on the donation receipt. 5. On the basis of the aforesaid facts the A.O. called upon the assessee to put forth an explanation as to why its claim of having received the amount towards corpus donation may not be rejected. In reply, it was claimed by the assessee that in compliance to the 7 M/s. Shri Bhagwan Mahaveer Jain Educational & Cultural Society, Raipur ITA No. 68 & 103/RPR/2018 direction of the A.O to produce 14 donors (supra) as were selected by him randomly, it had produced 8 out of the said 14 persons before him on 01.03.2016 for necessary examination. It was the claim of the assessee that though 4 donors were personally present, however, as 3 donors had expired, while for 1 donor having been taken unwell could not put up an appearance, therefore, they were respectively represented by their sons. Adverting to the observation of the A.O. that 2 persons had denied of having made any donation and were even unaware about the activities of the assessee society, it was submitted by the assessee, viz. (i). that as the donations were received either from the parents of the students or through the students or any other person on their behalf, therefore, the fact that they could not recall of having made the donations of a small amount of Rs.5000/- to the assessee could not be ruled out; and (ii) that as the assessee society, i.e., Shri Bhagwan Mahavir Jain Educational and Cultural society was popularly known as MATS University which was being run by the assesee society, therefore, the donors might not have been aware about the activities of the society, but only conversant with the fact that their son/daughter had studied in the university to which corpus donation of Rs.5000/- was given. Also, it 8 M/s. Shri Bhagwan Mahaveer Jain Educational & Cultural Society, Raipur ITA No. 68 & 103/RPR/2018 was claimed by the assessee that none of the aforesaid persons had denied the fact that his son/daughter had studied in MATS university. On being confronted by the fact that the aforesaid persons had denied of having signed the donations letters, it was stated by the assessee that as the declaration forms qua receipt of corpus donation of Rs.5000/- was got signed by persons through whom the same was received, therefore, denial of the persons whose statements was recorded may be for the reason that the donation might have been made through any other person who have signed on their behalf. 6. Adverting to the statement of Shri Ramadhar Yadav (supra), who had though admitted that he had given money amounting to Rs.5000/- to the society/college during the year under consideration, but had claimed that the same was on account of fees for his son who had studied in MATs college, the assessee had stated that the aforesaid statement was factually incorrect, because, the total fees apart from Rs. 5000/- i.e. corpus donation was already recorded in its account books and receipt was issued for the same. It was claimed by the assessee that the aforesaid person might have 9 M/s. Shri Bhagwan Mahaveer Jain Educational & Cultural Society, Raipur ITA No. 68 & 103/RPR/2018 failed to recall the bifurcation of the payment that was given by him way back, i.e., 3 years ago. As regards the statement of Shri Ghanshyam Sahu (supra) who though had confirmed the donation of Rs.5000/-, but had denied of having signed the donation letter and was also unable to clarify the nature of the donations, i.e., corpus or general, it was claim of the assessee that the fact of having given an amount towards donation duly substantiated the factual position. 7. As regards the observation of the A.O that the assessee had failed to produce 10 out of 14 donors, it was submitted by the assessee that though total 8 persons were produced, but the statements of only 4 persons were recorded by the A.O. It was further stated by him that as out of the 14 donors since 3 donors had expired, while for one of them having been taken unwell could not put up an appearance, therefore, they were represented by their sons, but the A.O had preferred not to record their statements. It was stated by the assessee that confirmations of the aforesaid 4 persons who were being represented through their sons were filed with the A.O. As regards the remaining 6 persons (out of 14 persons), it was the claim of the assessee that though they at the relevant point of 10 M/s. Shri Bhagwan Mahaveer Jain Educational & Cultural Society, Raipur ITA No. 68 & 103/RPR/2018 time could not be contacted, but thereafter it had re-approached them and got their confirmations of having paid the donations which were filed with the A.O. Apart from that, we find on a perusal of the reply filed by the assessee to the “Show Cause” notice, dated 11.03.2016 issued by the A.O, that the assessee had also placed on record confirmation of the corpus donations of nearly 25-30 other persons. However, the aforesaid explanation of the assessee did not find favour with the Assessing Officer. Observing, that the assessee society had failed to prove/substantiate its claim of having received corpus donations of Rs. 3,84,00,000/- from 7680 donors, the A.O. rejected the explanation that was filed by the assessee before him. On the basis of the fact that out of 4 persons whose statements were recorded by the A.O only 2 persons had stated that they had during the year given money amounting to Rs.5000/- to the assessee society and college, but the same was towards college fees for their family member/relative, the A.O held a conviction that the amounts projected by the assessee society as corpus donations was in fact received by it towards college fees on behalf of the students, i.e., for the services which were to be provided by the assessee. Rejecting the assessee’s claim of having received the aforesaid amount of 11 M/s. Shri Bhagwan Mahaveer Jain Educational & Cultural Society, Raipur ITA No. 68 & 103/RPR/2018 Rs.3,84,00,000/- (supra) as corpus donation, the A.O. was of the view that as 50% of the persons (i.e 2 persons out of 4 persons) who were produced before him had admitted of having given the money in question towards fees for family member/relative, therefore, 50% of the total amount of Rs.3,84,00,000/-, i.e., an amount of Rs.1,92,00,000/- was to be treated as the income of the assessee u/s.11(1) of the Act, while for the balance amount of Rs.1,92,00,000/- was to be treated as “anonymous donation” u/s. 115BBC of the Act. Accordingly, the A.O. on the basis of his aforesaid deliberations, vide his order passed u/s.143(3) of the Act dated 30.03.2016 brought to tax the “anonymous donations” of Rs.1,92,00,000/- u/s. 115BBC of the Act. 8. Aggrieved, the assessee carried the matter in appeal before the CIT (Appeals). In so far the contention of the assessee that its claim for depreciation of Rs.2,65,06,786/- (supra) as application of its income under Sec. 11(1) of the Act was in order, the CIT(Appeals) was not inclined to accept the same and upheld the view taken by the A.O. As regards the claim of the assessee that the A.O. had grossly erred in misdirecting himself, i.e, both in law and on facts of 12 M/s. Shri Bhagwan Mahaveer Jain Educational & Cultural Society, Raipur ITA No. 68 & 103/RPR/2018 the case by treating the corpus donation of Rs.1,92,00,000/- as 'anonymous donations’ u/s. 115BBC of the Act, the CIT(Appeals) concurred with the assessee that even if the aforesaid amount in question was not to be held as ‘corpus donation’, the same would be includible in the income of the assessee that would be entitled for exemption u/s.11 of the Act, i.e, subject to the parameters therein contemplated. Backed by his aforesaid observation, the CIT(Appeals) was of the view that as after including the balance 50% of the corpus donation, i.e, Rs. 1,92,00,000/- in the total income/receipt of the assessee, the application of income by the assessee society during the year was found to be more than 85% of its income/receipt, therefore, no addition on the said count could have been made in its hands. Also, we find that the CIT(Appeals) was of the view that the A.O even otherwise could have drawn adverse inferences only qua the donations which were found by him to be non-genuine on examination of the donors concerned. In sum and substance, the CIT(Appeals) was even otherwise of the view that adverse inferences qua the genuineness and veracity of the corpus donations could have been drawn by the A.O. only in respect of those donors who were examined by him, and the claim of the assessee having been received 13 M/s. Shri Bhagwan Mahaveer Jain Educational & Cultural Society, Raipur ITA No. 68 & 103/RPR/2018 the amounts from them as corpus donations was not found by him to be correct. In support of his aforesaid observations the CIT(Appeals) had relied on the order passed by the Tribunal in the case of Vidya Jyoti Trust (as finds mentioned in his order). On the basis of his aforesaid deliberations the CIT (Appeals) partly allowed the assessee’s appeal. 9. Both, the assessee and the revenue being aggrieved with the order of the CIT(Appeals) has carried the matter in appeal before us. 10. We have heard the Ld. Authorized Representatives of both the parties, perused the orders of the lower authorities and the material available on record, as well as considered the judicial pronouncements that have been pressed into service by them to drive home their respective contentions. 11. Adverting to the appeal filed by the assessee, we find that the solitary issue therein involved lies in narrow compass, i.e., entitlement of the assessee for claim of depreciation on the fixed assets of the society as application of its income for charitable purposes u/s.11(1)(a) of the Act. As observed by us hereinabove, the 14 M/s. Shri Bhagwan Mahaveer Jain Educational & Cultural Society, Raipur ITA No. 68 & 103/RPR/2018 aforesaid claim of the assessee was declined by the lower authorities, for the reason that as expenditure incurred for acquisition of capital asset had in the year of acquisition already been treated as application of income for charitable purposes u/s.11(1)(a) of the Act, therefore, allowing of its claim for depreciation would tantamount to a double benefit to the assessee. On a perusal of the assessment order, we find that the A.O. had in support of his aforesaid conviction relied on the judgment of the Hon’ble High Court of Kerala in the case of Lissie Medical Institutions Vs. CIT (2012) 384 ITR 344 (Ker.). On a perusal of the aforesaid judicial pronouncement, we find that it was therein held that once the cost of assets had been allowed as expenditure at one time, then, no additional benefit in the name of depreciation could thereafter be allowed. We have given a thoughtful consideration to the aforesaid issue in hand and are unable to concur with the view taken by the lower authorities. As stated by the Ld. AR, and rightly so, the aforesaid issue involved in the present appeal, i.e., entitlement of the assessee for claim of depreciation on fixed assets of the assessee society as an application of its income for a charitable purpose u/s.11(1) of the Act, despite the expenditure incurred for acquisition of the said capital asset already having been 15 M/s. Shri Bhagwan Mahaveer Jain Educational & Cultural Society, Raipur ITA No. 68 & 103/RPR/2018 treated as application of its income for charitable purpose u/s.11(1)(a) of the Act, is no more res-integra pursuant to the judgment of the Hon’ble Supreme Court in the case of Commissioner of Income Tax-III, Pune Vs. Rajasthan & Gujarati Charitable Foundation Poona, (2018) 402 ITR 441 (SC). In its aforesaid orfer, it was observed by the Hon’ble Apex Court that in the case of a charitable institution registered under section 12A of the Act, even though expenditure incurred for acquisition of capital assets was earlier treated as application of income for charitable purposes u/s. 11(1)(a) of the Act, yet depreciation would be allowed on assets so purchased. Admittedly, Section 11(6) of the Act had been subject to an amendment vide the Finance (Act No.2), 2014 w.e.f. 01.04.2015, which such post-amendment reads as under: “(6) In this section where any income is required to be applied or accumulated or set apart for application, then, for such purposes the income shall be determined without any deduction or allowance by way of depreciation or otherwise in respect of any asset, acquisition of which has been claimed as an application of income under this section in the same or any other previous year.” However, as the aforesaid amendment is only prospective in nature, i.e., applicable w.e.f. 01.04.2015, therefore, the same would not be applicable to the case of the assessee before us, i.e., A.Y.2013-14. Our aforesaid view is once again fortified by the judgment of the 16 M/s. Shri Bhagwan Mahaveer Jain Educational & Cultural Society, Raipur ITA No. 68 & 103/RPR/2018 Hon’ble Apex Court in the case of Rajasthan & Gujarati Charitable Foundation Poona (supra), wherein, it was held by the Hon’ble Court that the aforesaid amendment would be effective from assessment year 2015-16. We, thus, in terms of our aforesaid observations set- aside the order of the CIT(Appeals) qua the issue in hand and direct the Assessing Officer to allow the assessee’s claim of depreciation of Rs.2,65,06,786/- (supra) as application of its income u/s.11(1) of the Act. Thus, the Ground of appeal No.1 raised by the assessee is allowed in terms of our aforesaid observations. 12. The Ground of appeal No.2 being general in nature is dismissed as not pressed. 13. In the result, appeal of the assessee is allowed in terms of our aforesaid observations. ITA No.103/RPR/2018 (Revenue’s appeal) A.Y.2013-14 14. We shall now take up the appeal filed by the revenue wherein the order passed by the CIT(Appeals) has been assailed before us, for the reason that he had erred in deleting the addition of Rs.1.92 crore by extending the benefit of Section 11(1) of the Act to the said 17 M/s. Shri Bhagwan Mahaveer Jain Educational & Cultural Society, Raipur ITA No. 68 & 103/RPR/2018 amount which was held by the A.O as ‘anonymous donation’ u/s. 115BBC of the Act. 15. Before adverting any further, we deem it fit and appropriate to cull out Section 115BBC of the Act, which reads as under: “115BBC. (1) Where the total income of an assessee, being a person in receipt of income on behalf of any university or other educational institution referred to in sub-clause (iiiad) or sub-clause (vi) or any hospital or other institution referred to in sub-clause (iiiae) or sub- clause (via) or any fund or institution referred to in sub-clause (iv) or any trust or institution referred to in sub-clause (v) of clause (23C) of section 10 or any trust or institution referred to in section 11, includes any income by way of any anonymous donation, the income-tax payable shall be the aggregate of— (i) the amount of income-tax calculated at the rate of thirty per cent on the aggregate of anonymous donations received in excess of the higher of the following, namely:— (A) five per cent of the total donations received by the assessee; or (B) one lakh rupees, and (ii) the amount of income-tax with which the assessee would have been chargeable had his total income been reduced by the aggregate of anonymous donations received in excess of the amount referred to in sub-clause (A) or sub-clause (B) of clause (i), as the case may be. (2) The provisions of sub-section (1) shall not apply to any anonymous donation received by— (a) any trust or institution created or established wholly for religious purposes; (b) any trust or institution created or established wholly for religious and 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. (3) For the purposes of this section, "anonymous donation" means any voluntary contribution referred to in sub-clause (iia) of clause (24) of section 2, where a person receiving such contribution does not 18 M/s. Shri Bhagwan Mahaveer Jain Educational & Cultural Society, Raipur ITA No. 68 & 103/RPR/2018 maintain a record of the identity indicating the name and address of the person making such contribution and such other particulars as may be prescribed.” On a perusal of the aforesaid statutory provision as had been made available on the statute vide the Finance Act, 2006, w.e.f. 01.04.2007, we find that the meaning of the term “anonymous donation” can be traced in sub-section (3) of Section 115BBC of the Act, which as culled out by us hereinabove, reads as under: “(3) For the purposes of this section, "anonymous donation" means any voluntary contribution referred to in sub-clause (iia) of clause (24) of section 2, where a person receiving such contribution does not maintain a record of the identity indicating the name and address of the person making such contribution and such other particulars as may be prescribed.” As per the aforesaid definition, any voluntary contribution referred to in sub-clause (iia) of clause (24) of Section 2 of the Act, where the person receiving such contribution does not maintain a record of the identity indicating the name and address of the person making such contribution a/w such other particulars as may be prescribed would fall within the meaning of the said term. In the case before us, it is a matter of fact borne from record that the assessee had duly maintained a record indicating the names and addresses of the persons from whom contributions have been received. In so far maintaining of the records qua “... such other particulars as may be 19 M/s. Shri Bhagwan Mahaveer Jain Educational & Cultural Society, Raipur ITA No. 68 & 103/RPR/2018 prescribed”, neither any such particulars have been prescribed within the meaning of Sec 115BBC of the Act, nor is it the case of the revenue that the assessee had failed to maintain record of any such prescribed particulars. Accordingly, as could safely or in fact inescapably be gathered from a plain reading of the aforesaid statutory provision, i.e, Sec. 115BBC of the Act, as per the mandate of law the assessee is obligated to maintain record of the identity of the contributors indicating the names and addresses of the persons making such contributions/donations, failing which the amounts so received would fall within the meaning of “anonymous donation” as contemplated in sub-section (3) of Sec. 115BBC. As in the case before us, the assessee society had duly maintained a record indicating the names and addresses of the contributors, therefore, the amount so received by it could not have been brought within the meaning of “anonymous donation” under Sec. 115BBC of the Act. Our aforesaid conviction is duly fortified by the order of the ITAT, Delhi Bench “G” in the case of ACIT Vs. Shree Shiv Vankeshawar Educational & Social Welfare Trust, (2019) 106 taxmann.com 249 ( Delhi). In its aforesaid order it was observed by the Tribunal as under: 20 M/s. Shri Bhagwan Mahaveer Jain Educational & Cultural Society, Raipur ITA No. 68 & 103/RPR/2018 “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 has prescribed any particulars which is required to be maintained by the assessee trust, the answer was no. We also did not find any such prescription about what kind of particulars the assessee trust is required to maintain. Therefore, it is apparent that at present the simple requirement is maintaining the name and address of the donors. In the present case, the assessee has already given much more detail then the name and address of the donors. Therefore with respect to the donation from 1038 persons the assessee has shown their name and address along with other particulars. It is not the case of the revenue that assessee has not maintained and provided these details to the assessing officer. In view of this we do not find that the donation received by the assessee falls into the definition of anonymous donation. Hence on the applicability of the provisions of section 115BBC of the income tax act we find that the learned CIT - A has correctly reached the conclusion that the donation received by the assessee is not an anonymous donation as provided under section 115BBC of the act. Therefore on this count also we uphold the order of the learned CIT - A.” Also, a similar view had been taken by the ITAT, Lucknow Bench, “A”, Lucknow in the case of Archisha Educational Trust Vs. Income Tax Officer (Exemption), Lucknow in ITA No.195/LKW/2020, dated 09.02.2021. In its aforesaid order the Tribunal had after placing reliance on a host of judicial pronouncements observed as under: 21 M/s. Shri Bhagwan Mahaveer Jain Educational & Cultural Society, Raipur ITA No. 68 & 103/RPR/2018 “4. We have heard the rival parties and have gone through the material placed on record. The brief facts as are coming out from material on record are that the appellant is a educational society established in the year 2008 with the object for imparting education and it is registered u/s. 12A of the Act. For the year under consideration, the assessee filed its return of income declaring NIL income whereas the assessment has been completed on a total income of Rs.1,93,51,200/-. While framing the assessment, the ld. AO has made additions of anonymous donations u/s. 115BBC of the Act. The AO had observed that the assessee had received corpus donations amounting to Rs.1,19,76,200/-. The ld. AO further observed that the assessee had received Rs.1,000/- per student per month from all the students, the amount of which, amounted to Rs.71,88,800/-. The AO further observed that the assessee had received donations to the tune of Rs.16,62,000/- from various persons. In order to verify the genuineness of these receipts, the AO issued notices u/s. 133(6) of the Act to 21 persons on random basis out of which, confirmations were received from 19 persons and from two persons confirmation were not received and the letters were received back. From confirmation letters the AO observed that the replies were sent from Lucknow whereas the assessee was situated at Hardoi and therefore, he treated the donations as in genuine. However, out of total of Rs.16,62,000/- received from donors the AO treated only Rs.1,87,000/- as anonymous donations whereas all other donations received from students were held to be anonymous donations and taxed u/s. 115BBC of the Act. The ld. CIT(A) however allowed relief to the assessee substantially and confirmed additions to the tune of Rs.1,64,000/- only from three persons. While giving relief to the assessee, the ld. CIT(A) allowed relief in respect of 19 students in respect of whom the confirmations were received and also allowed relief in respect of students to whom no notices were issued. The revenue is against the relief allowed on various grounds wherein one of the ground is that AO had issued notices to only 19 persons therefore, donations from rest of the persons verified cannot be said to be as they could not be confirmed. We find that the additions were made by AO by treating the donations as anonymous donations u/s. 115BBC of the Act. Therefore, it is important to first visit the provisions of Section 115BBC of the Act which reads as under: "Anonymous donations to be taxed in certain cases. 115BBC. (1) Where the total income of an assessee, being a person in receipt of income on behalf of any university or other educational institution referred to in sub-clause (iiiad) or sub- clause (vi) or any hospital or other institution referred to in sub-clause (iiiae) or sub-clause (via) or any fund or institution 22 M/s. Shri Bhagwan Mahaveer Jain Educational & Cultural Society, Raipur ITA No. 68 & 103/RPR/2018 referred to in sub-clause (iv) or any trust or institution referred to in sub-clause (v) of clause (23C) of section 10 or any trust or institution referred to in section 11, includes any income by way of any anonymous donation, the income-tax payable shall be the aggregate of-- (i) the amount of income-tax calculated at the rate of thirty per cent on the aggregate of anonymous donations received in excess of the higher of the following, namely:-- (A) five per cent of the total donations received by the assessee; or (B) one lakh rupees, and (ii) the amount of income-tax with which the assessee would have been chargeable had his total income been reduced by the aggregate of anonymous donations received in excess of the amount referred to in sub- clause (A) or sub-clause (B) of clause (i), as the case may be. (2) The provisions of sub- section (1) shall not apply to any anonymous donation received by-- (a) any trust or institution created or established wholly for religious purposes; (b) any trust or institution created or established wholly for religious and 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. (3) For the purposes of this section, "anonymous donation" means any voluntary contribution referred to in sub-clause (iia) of clause (24) of section 2, where a person receiving such contribution does not maintain a record of the identity indicating the name and address of the person making such contribution and such other particulars as may be prescribed." 5. As per the above definition, the person receiving the donations has to maintain the record of the identity indicating the name and addresses of the persons making such donations. To come out of the definition of anonymous donation, the only requisite condition is that names and addresses from whom the donation has been received has to be maintained. The section is silent thereafter unlike Section 68 which casts an obligation on the assessee to explain the amount credited in the books along with the explanation to the satisfaction of AO. The moment the person receiving the donations provides the record containing the names and addresses of the persons from whom the donation has been received such 23 M/s. Shri Bhagwan Mahaveer Jain Educational & Cultural Society, Raipur ITA No. 68 & 103/RPR/2018 donation comes out of the definition of anonymous donations. In the present case, it is undisputed fact that assessee had maintained complete record regarding identity of donors along with their addresses. Such information has been filed before us also in the form of paper book which is placed Pgs. 6 to 24. This list of donors other then students contains PAN numbers also. Therefore, these donations cannot be termed as anonymous donations and hence cannot taxed u/s. 115BBC of the Act. 6. The ITAT Delhi Benches in the case of Shree Shiv Vankeshwar Educational & Social Welfare Trust, (Supra) vide order dated 16.05.2019 in Para 10 has held as under: "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 Page | 6 ACIT Vs Shree Shiv Vankeshawar Educational & Social Welfare Trust, ITA No. 4623/Del/2012 (Assessment Year: 2009-10) 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 has prescribed any particulars which is required to be maintained by the assessee trust, the answer was no. We also did not find any such prescription about what kind of particulars the assessee trust is required to maintain. Therefore, it is apparent that at present the simple requirement is maintaining the name and address of the donors. In the present case, the assessee has already given much more detail then the name and address of the donors. Therefore with respect to the donation from 1038 persons the assessee has shown their name and address along with other particulars. It is not the case of the revenue that assessee has not maintained and provided these details to the assessing officer. In view of this we do not find that the donation received by the assessee falls into the definition of anonymous donation. Hence on the applicability of the provisions of section 115BBC of the income tax act we find 24 M/s. Shri Bhagwan Mahaveer Jain Educational & Cultural Society, Raipur ITA No. 68 & 103/RPR/2018 that the learned CIT - A has correctly reached the conclusion that the donation received by the assessee is not an anonymous donation as provided under section 115BBC of the act. Therefore on this count also we uphold the order of the learned CIT-A." 6.1 Similarly the ITAT, Lucknow Benches in ITA No. 15/Lkw/2015 vide order dated 10.07.2015 in para 8 held as under: "8. In other cases also similar view was expressed by the Tribunal. In the instant case, since the assessee has furnished complete details of the donors along with PAN,' the said donation cannot be called to be anonymous donation. Therefore, provisions of section 115BBC of the Act cannot be invoked. Keeping in view the totality of the facts and circumstances of the case, we are of the considered opinion that no disallowance can be made either under section 68 of the Act or under section 115BBC of the Act. Therefore, we find no infirmity in the order of the Id. CIT(A) who has rightly deleted the addition." 6.2 The Lucknow Bench in ITA No. 665/Lkw/2016 vide order dated 31.08.2018 has dismissed the appeal filed by the Revenue by holding as under: "5. We have heard the rival parties and have gone through the material placed on record. We find that the assessee is registered u/s 12A of the Act vide order dated 10/06/2008 passed by learned CIT, Lucknow. During the assessment year the Assessing Officer observed that the assessee had received donation and voluntary contribution amounting to Rs.95 lakh and therefore, the assessee was required to furnish complete names and addresses of the persons from whom donations and voluntary contributions were received. The assessee furnished the complete list of donors with names and addresses, a copy of which is placed at pages 11 to 40 of the paper book. As per the provisions of section 115BBC(3) the anonymous donation means any voluntary contribution referred to in sub-clause (iia) of clause (24) of section 2, where a person receiving such contribution does not maintain a record of the identity indicating the name and address of the person making such contribution and such other particulars as may be prescribed. Learned D. R. was not able to demonstrate as to what other particulars have been prescribed for recording the voluntary contributions or donations. The record maintaining the name and address of 25 M/s. Shri Bhagwan Mahaveer Jain Educational & Cultural Society, Raipur ITA No. 68 & 103/RPR/2018 the persons has already been maintained by the assessee and during assessment proceedings a complete list was provided to the Assessing Officer, a copy of which is placed at pages 11 to 40 of the paper book. The learned CIT(A) has relied on the case law of Hans Raj Samarak Society vs. Asstt. Director of Income Tax (Exemptions) of Delhi Tribunal and has also relied on the case law of Gagan Solanki Memorial Educational Society vs. Asstt. Director of I.Tax (E) where the requirement of section 115BBC has been discussed. The relevant findings of learned CIT(A) are reproduced as under: "5.4 I have examined the facts and circumstances of the case and have considered the findings of the AO and submissions of the appellant. The main issue in dispute is whether provisions of sec 115BBC of the I.T Act, 1961 were violated or not by the appellant and whether the donations of Rs.95,00,000/- received by it can be categorised as anonymous donations. In order to prevent channelisation of unaccounted money to these institutions by way of anonymous donations, a new section 115BBC has been inserted to provide that any income of a wholly charitable trust or institution by way of any anonymous donation shall be included in its total income and taxed at the rate of 30%. Anonymous donation to wholly religious trusts or institutions will not be taxed. Anonymous donation has been defined in the new section to mean any voluntary contribution referred to in section 2(24) (iia) of the Act, where a person receiving such contribution does not maintain a record of the identity indicating the name and address of the person making such contribution and such other particulars as may be prescribed. To be excluded from the definition of anonymous donations the person receiving the donation is required to maintain the record of identity indicating the name and address of contributor and such other particulars as may be prescribed. Since no other particulars have been prescribed under the provisions the person receiving the donation is under obligation to maintain the identity of donors indicating the name and address. On perusal of the details filed by appellant it is seen that 26 M/s. Shri Bhagwan Mahaveer Jain Educational & Cultural Society, Raipur ITA No. 68 & 103/RPR/2018 the appellant has not only furnished the names and addresses of donors but also furnished a number of other details in respect of some donors viz ID proofs and address proofs. In view of above it is held that appellant has established the identity of donors as provided u/s 115BBC of IT. Act, 1961 and the donations received by the appellant cannot be categorised as anonymous donations and cannot be subjected to tax as per provisions of sec 115BBC of IT. Act, 1961. 5.5 Reliance is also placed on decision of Hon'ble ITAT Bench A in ITO-2(3), Lucknow Vs. M/s Saraswati Educational Charitable Trust in ITA no 776/LKW/2014 Dated 17.06.2015 werein the facts on the issue of anonymous donations are similar to the appellant's case. 5.6 Reliance was placed on decision of Hon'ble Delhi bench of ITAT in case of Hans Raj Samarak Society Vs. ADIT 16 Taxman103. As per the decision the receiver has the obligation to maintain the identity indicating the name and address only and nothing more. No other particular has been prescribed under the provision. No other word can be read in Sec- 115BBC(3) other than words finding place therein. 5.7 Reliance was also placed on decision of Hon'ble Delhi High Court which confirmed the decision of Hon'ble ITAT in case of DIT(E) Delhi Vs. Hans Raj SamarakSociety(2013) 35 Taxman642(Delhi). 5.8 Reliance is placed on decision of Hon'ble ITAT, Delhi in the case of M/s Gugan Solanki Memorial Educational Society vs. ADIT(E) in ITA No. 1495 (Del.)/2011 for A.Y. 2007-08 wherein it has been held that "The legislature has provided for maintaining the record of identity which indicates names and address of donors. Nothing beyond can be read in the section. Moreover, provision has been made for particular's as may be prescribed. Undisputedly, however, no such particulars have been prescribed." In view of above discussion and decisions of Hon'ble Jurisdictional ITAT, Hon'ble Delhi ITAT and Hon'ble Delhi 27 M/s. Shri Bhagwan Mahaveer Jain Educational & Cultural Society, Raipur ITA No. 68 & 103/RPR/2018 High Court, the addition of Rs. 95,00,000/- made by the AO is not justified is hereby deleted." 5.1 The above findings of learned CIT(A) are quite exhaustive and require no interference from our side. 6. In the result, the appeal of the Revenue stands dismissed." 7. Similar view has been taken in various cases relied on by ld. AR. 8. In view of above facts and circumstances and judicial precedents relied on by the assessee, the appeal filed by the assessee is allowed whereas the appeal filed by the Revenue is dismissed.” We may herein observe that a similar view had also been taken by the ITAT, Delhi in the case of Hansraj Samarak Society Vs. ADIT, 16 Taxman 103 (Delhi). On a perusal of the aforesaid order, we find that it was therein held that the assessee is obligated to maintain the identity indicating the name and address of the contributor only and nothing more. It was observed by the Tribunal that no other particulars have been prescribed under the aforesaid statutory provision i.e. Section 115BBC(3) of the Act. The aforesaid order of the ITAT, Delhi had thereafter been approved by the Hon’ble High Court of Delhi in the case of DIT(E), Delhi Vs. Hans Raj Samarak Society (2013) 35 Taxman 642 (Delhi). 28 M/s. Shri Bhagwan Mahaveer Jain Educational & Cultural Society, Raipur ITA No. 68 & 103/RPR/2018 16. On the basis of our aforesaid observations, we are of the considered view that the CIT (Appeals) after deliberating at length on the issue in question, had rightly concluded, viz. (i). that adverse inferences, if any, qua the genuineness and veracity of the corpus donations could have been drawn by the A.O only in respect of those donors who were examined by him and the claim of the assessee of having received the amounts from them as corpus donations was not found by him to be correct; and (ii). that even if the corpus donations as claimed by the assessee were not established/proved, then, the same were to be included in the income of the assessee which would be eligible for exemption under section 11 of the Act. For the sake of clarity the observations of the CIT(Appeals) are reproduced as under: “3.3.3 In fine, it has been held that if corpus donation has not been established, the same should be treated as income of the assessee and total receipt of the assessee including such receipt of corpus donation will be examined as per provisions of section 11 to see whether any income is taxable. In case of the assessee if 50% of corpus donations is treated as income, the income and application position of the trust will be as below: Total income--- Rs.287317016/- (including 50% of corpus donation) 85% of the amount ----- Rs.244219464/- Application made as per the assessee : Rs.28,81,85,238/- Less : Depreciation : Rs. 2,65,06,786/- 29 M/s. Shri Bhagwan Mahaveer Jain Educational & Cultural Society, Raipur ITA No. 68 & 103/RPR/2018 Application----- Rs.26,16,78,452/- As can be seen, after including the 50 percent of corpus donation, the application by the assessee is more than 85 percent of income. Therefore, no addition to the income can be made. Thus, in view of the above facts and consequences of treating the corpus donation as income, the exemption u/s.11 cannot be disallowed. Accordingly the disallowance is hereby deleted and assessee’s grounds are allowed.” After deliberating at length on the aforesaid issue, we are principally in agreement with the CIT(A) that even if the amount claimed by the assessee to have been received as “corpus donation” was not proved, the same in the light of the facts involved in the case before us, could not have been brought within the meaning of “anonymous donation” as contemplated in Sec. 115BBC of the Act. Accordingly, as observed by the CIT(Appeals), and rightly so, the amount in question, i.e., Rs.1.92 crore which had been held by the AO as “anonymous donation” u/s 115BBC would be includible in the income of the assessee society and would be eligible for exemption under section 11(1) of the Act. Observation of the CIT(A) would though stand modified by the fact, that as held by us hereinabove while disposing off the assessee’s appeal in ITA No. 68/Rpr/2018, the assessee’s claim of depreciation on the fixed assets would also be considered towards application of its income under Sec. 11(1) of the Act. Also, 30 M/s. Shri Bhagwan Mahaveer Jain Educational & Cultural Society, Raipur ITA No. 68 & 103/RPR/2018 we concur with the alternative observation of the CIT(A) that even if the A.O on examination of certain persons was not inspired as regards the genuineness of the claim of the assessee of having received corpus donations from them, then, adverse inferences were liable to be restricted only in respect of those persons and could not have been extended without carrying out any verification /examination to all the 7680 donors. Be that as it may, we are principally in agreement with the CIT(Appeals), that even if the assessee’s claim of having received corpus donations of Rs.1.92 crore as held by the Assessing Officer is not proved/established, the same in light of the attending circumstances cannot be brought within the meaning of “anonymous donation” under Sec. 115BBC of the Act, and shall be includible in the income of the assessee society that would be eligible for exemption under Sec. 11 of the Act. Accordingly, finding no infirmity in the view taken by the CIT(Appeals) that no addition on the aforesaid count was called for in the hands of the assessee society, we uphold the same. Thus, the Grounds of appeal No.(s) 1 to 4 raised by the Revenue are dismissed in terms of our aforesaid observations. 31 M/s. Shri Bhagwan Mahaveer Jain Educational & Cultural Society, Raipur ITA No. 68 & 103/RPR/2018 17. The Ground of appeal No.5 being general in nature is dismissed as not pressed. 18. In the result, appeal of the Revenue is dismissed in terms of our aforesaid observations. 19. Resultantly, the appeal of the assessee in ITA No.68/RPR/2018 for the assessment year 2013-14 is allowed and appeal of the Revenue in ITA No.103/RPR/2018 for the assessment year 2013-14 is dismissed in terms of our aforesaid observations. Order pronounced in the open court on 09 th day of May 2022. Sd/- Sd/- JAMLAPPA D BATTULL RAVISH SOOD (ACCOUNTANT MEMBER) (JUDICIAL MEMBER) रायप ु र/ RAIPUR ; Ǒदनांक / Dated : 09 th May, 2022 SB 32 M/s. Shri Bhagwan Mahaveer Jain Educational & Cultural Society, Raipur ITA No. 68 & 103/RPR/2018 आदेशकȧĤǓतͧलͪपअĒेͪषत / Copy of the Order forwarded to : 1. अपीलाथȸ / The Appellant. 2. Ĥ×यथȸ / The Respondent. 3. The CIT(Appeals)-1, Raipur (C.G) 4. The Pr. CIT-1, Raipur (C.G) 5. ͪवभागीय ĤǓतǓनͬध,आयकर अपीलȣय अͬधकरण,रायप ु र बɅच, रायप ु र / DR, ITAT, Raipur Bench, Raipur. 6. गाड[फ़ाइल / Guard File. आदेशान ु सार / BY ORDER, // True Copy // Ǔनजी सͬचव / Private Secretary आयकर अपीलȣय अͬधकरण, रायप ु र / ITAT, Raipur. 33 M/s. Shri Bhagwan Mahaveer Jain Educational & Cultural Society, Raipur ITA No. 68 & 103/RPR/2018 Date 1 Draft dictated on 02.05.2022 Sr.PS/PS 2 Draft placed before author 02.05.2022 Sr.PS/PS 3 Draft proposed and placed before the second Member JM/AM 4 Draft discussed/approved by second Member AM/JM 5 Approved draft comes to the Sr. PS/PS Sr.PS/PS 6 Kept for pronouncement on Sr.PS/PS 7 Date of uploading of order Sr.PS/PS 8 File sent to Bench Clerk Sr.PS/PS 9 Date on which the file goes to the Head Clerk 10 Date on which file goes to the A.R 11 Date of dispatch of order