M/s. Sunder Deep Educational Society, New Delhi V. Addl. CIT, Ghaziabad

ITA 4058/DEL/2013

• Counselvise Citation: 405820114 RSA 2013
• Duration Of Justice: 9 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-04-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2006-2007
• Appeal Filed On: 01-07-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RENUKA JAIN GUPTA
• Assessee Lawyers: ASHWANI TANEJAF
• Keywords: Depreciation; Charitable institution; Corroborative evidences; Accommodation entries; Benefit of exemption
• Section: 133A; 234B; 133(6); 80G; 12A; 12AA; 68; 6; 12; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G: NEW DELHI BEFORE SHRI G. D. AGRAWAL, VICE PRESIDENT AND SHRI I. C. SUDHIR, JUDICIAL MEMBER I.T.A.NO.4058/DEL/2013 ASSESSMENT YEAR : 2006-07 SUNDER DEEP EDUCATIONAL SOCIETY, VS. ADDL. CIT, C/O. M/S. RRA TAXINDIA, RANGE-2 D-28,SOUTH EXTENSION, PART-1 NEW DELHI. GHAZIABAD. PAN: AAETS5165J. (APPELLANT) (RESPONDENT) I.T.A.NO.4059/DEL/2013 ASSESSMENT YEAR : 2008-09 SUNDER DEEP EDUCATIONAL SOCIETY, VS. ADDL. CIT, NH-24 , RANGE-2 DASNA GHAZIABAD. GHAZIABAD. PAN: AAETS5165J. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ASHWANI TANEJA, F.C. A RESPONDENT BY : SMT. RENUKA JAIN G UPTA, SR. DR. O R D E R PER I. C. SUDHIR, JUDICIAL MEMBER IN BOTH THE APPEALS PREFERRED BY THE ASSESSEE, THE ACTION OF THE LD. CIT (A) HAS BEEN QUESTIONED IN SUSTAINING THE ADDITION MADE U/S 68 OF THE ACT, BY TREATING THE DONATION AS NON GENUINE AND THEREBY IN NOT GRANTING THE BENEFIT 2 OF EXEMPTION UNDER SECTIONS 11 & 12 OF THE ACT. WIT HOUT APPRECIATING THAT THE SOCIETY IS DULY REGISTERED U/S 12AA OF THE ACT. 2. AT THE OUTSET OF HEARING THE LD. AR POINTED OUT THAT THE ISSUE RAISED IN THE GROUNDS IS FULLY COVERED BY THE DECISION OF THE TRIBUNAL IN THE CASE OF ASSESSEE ITSELF FOR THE ASSESSMENT YEAR 2007-08 IN ITA NO. 2428/DEL/2011, ORDER DATED 06.12.2013. A COPY OF THIS ORDER HAS BE EN FURNISHED BY THE LD. AR. 3. THE LD. DEPARTMENTAL REPRESENTATIVE, ON THE OTHE R HAND, TRIED TO JUSTIFY ORDERS OF THE AUTHORITIES BELOW. 4. THE RELEVANT FACTS OF THE CASE ARE THAT THE ASSE SSEE SOCIETY WAS GRANTED REGISTRATION U/S 12AA OF THE ACT WITH EFFECT FROM 1 0.09.2004 AND EXEMPTION U/S 80G OF THE ACT FOR THE PERIOD FROM 10.09.2004 T O 31.03.2008. AS PER MEMORANDUM OF THE ASSOCIATION THE MAIN OBJECTIVES O F THE SOCIETY ARE TO ESTABLISH, MAINTAIN AND SUPPORT SCHOOLS, COLLEGES, TECHNICAL SCHOOL, MEDICAL COLLEGES AND OTHER EDUCATIONAL INSTITUTION AND RESE ARCH CENTRE FOR CARRYING OUT RESEARCH IN VARIOUS BRANCHES OF EDUCATION INCLU DING TECHNICAL SUBJECT AND TO ASSOCIATE WITH EDUCATIONAL RESEARCH INSTITUTIONS . THE SOCIETY IS ALSO ENGAGED IN THE ACTIVITY PROVIDING TECHNICAL EDUCATI ON IN THE FORM OF ENGINEERING, MANAGEMENT COURSES AT DIFFERENT PLACES . THE ASSESSEE WAS SUBJECTED TO SURVEY U/S 133A OF THE I. T. ACT, 1961 AND DURING THE COURSE OF 3 SURVEY A HUGE INVESTMENT IN PURCHASE OF LAND AND CO NSTRUCTION OF COLLEGE BUILDINGS WAS NOTICES. THE RECEIPT OF DONATIONS TOW ARDS CORPUS FUNDS WAS ALSO NOTICED DURING THE COURSE OF ASSESSMENT PROCEE DINGS. NECESSARY CONFIRMATIONS ALONG WITH COPY OF BANK STATEMENT AND PAN NOS. WERE RECEIVED FROM THE DONORS IN THE ASSESSMENT YEAR 200 6-07. THE DONOR M/S USHA (INDIA) LTD. REFUSED VIDE ITS LETTER DATED 24. 09.2008 FOR GIVING DONATION OF RS.6,50,000/- TO THE ASSESSEE WAS ASKED TO EXPLAIN THE SAID CLAIMED DONATION. 5. BEING NOT SATISFIED WITH THE EXPLANATION, THE AS SESSEE MADE AN ADDITION OF RS.6,50,000/- U/S 68 OF THE ACT, TREATI NG THE DONATION AS NON GENUINE THE LD. CIT (A) HAS UPHELD THE SAME. 6. SIMILARLY IN THE ASSESSMENT YEAR 2008-09, THE AS SESSING OFFICER MADE ADDITION OF RS.63,52,600/- U/S 68 READ WITH SECTION 115 BBC OF THE ACT, HOLDING THE INCOME FROM UNEXPLAINED SOURCES. DURING THIS YEAR ALSO THE ASSESSEE HAD TAKEN DONATIONS FROM DIFFERENT PARTIES AND TRIED TO ESTABLISH ITS GENUINENESS BUT COULD NOT SUCCEED EVEN BEFORE THE L D. CIT (A) AND ADDITION OF RS.63,52,602/- HAS BEEN SUSTAINED U/S 68 OF THE ACT. 7. KEEPING IN VIEW THE PROVISIONS OF SECTION 115 B BC, THE GRIEVANCES OF THE ASSESSEE REMAIN THAT THEY HAD FURNISHED SUFFICI ENT EVIDENCE IN SUPPORT OF THE GENUINENESS OF THE CLAIMED DONATION AND EVEN IF , THE ADDITION ON THIS 4 ACCOUNT OF NON GENUINENESS OF THE CLAIMED DONATION IS MADE, THE ASSESSEE SOCIETY DULY REGISTERED U/S 12AA OF THE ACT, WILL B E ELIGIBLE FOR EXEMPTION UNDER SECTIONS 11& 12 OF THE ACT ON THE SAID ADDITI ON. UNDER ALMOST SIMILAR FACTS AND CIRCUMSTANCES IN THE CASE OF ASSESSEE ITS ELF FOR THE ASSESSMENT YEAR 2007-08, THE ADDITION MADE U/S 68 READ WITH SECTION 115BBC OF THE ACT AT RS.1,92,35,000/-, ON ACCOUNT OF NON GENUINENESS OF THE DONATIONS HAS ULTIMATELY BEEN DELETED BY THE TRIBUNAL VIDE ITS OR DER DATED 06.12.2012 (SUPRA). RELEVANT PARA NOS. 11 TO 15 THEREOF ARE BE ING REPRODUCED HEREUNDER: 11. WE HAVE DULY CONSIDERED THE RIVAL CONTENTIONS AND GONE THROUGH THE RECORD CAREFULLY. THERE IS NO DISPUTE B ETWEEN THE PARTIES THAT ASSESSEE IS A REGISTERED SOCIETY UNDER SOCIETY REGISTRATION ACT. 1862. IT IS ALSO ENJOYING REGISTR ATION UNDER SEC. 12AA OF THE ACT AND IT IS ALSO ENJOYING EXEMPT ION UNDER SEC. 80G OF THE ACT. ALL THESE REGISTRATIONS ARE IN TACT DURING THE ACCOUNTING YEAR RELEVANT TO THIS ASSESSMENT YEAR. A SSESSING OFFICER HAS BASICALLY DISTINGUISHED THE FACTS OF HO N'BLE DELHI HIGH COURTS DECISION IN THE CASE OF KESHAV CHARITA BLE TRUST, ON THE GROUND THAT SEC. 115BBC HAS BEEN INTRODUCED IN THE ACT, IT IS APPLICABLE IN THIS ASSESSMENT YEAR AND IF DON ATIONS ARE TO BE TREATED AS ANONYMOUS DONATIONS THEN, IT WOULD NO T BE CONSTRUED THAT SUCH DONATIONS ARE DEEMED TO BE INCO ME DERIVED FROM THE TRUST AS PER SEC. 12 OF THE ACT. THIS FACT HAS BEEN REVERSED BY THE LEARNED CIT(APPEALS) IN THE FINDING S EXTRACTED SUPRA. LEARNED CIT(APPEALS) HAS HELD THAT SEC. 115B BC IS APPLIED TO ANONYMOUS DONATIONS. HE DID NOT AGREE WI TH THE ASSESSING OFFICERS VIEW OF TREATING THESE DONATION S AS ANONYMOUS TO THAT EXTENT HE AGREED WITH THE ASSESSE ES ARGUMENTS. THIS FINDING OF FACT HAS NOT BEEN CHALLE NGED BEFORE US BY THE REVENUE. THE ORDER OF THE LEARNED CIT(APP EALS) IS DATED 31.3.2011. THE APPEAL OF THE ASSESSEE WAS LIS TED ON SIX OCCASIONS, BUT NO STEPS WERE SHOWN BY THE REVENUE T HAT IT IS GOING TO CHALLENGE THE FINDINGS OF LEARNED CIT(APPE ALS) 5 EXTRACTED SUPRA. THUS, WE HAVE TO PROCEED FROM THE POINT THAT ASSESSEE HAS BEEN MAINTAINING COMPLETE DETAILS OF T HE DONORS AS REQUIRED UNDER SEC. 115BBC. THE DONATIONS ARE NOT B Y ANONYMOUS DONORS. IF THESE ARE NOT ANONYMOUS THEN L ET US SEE HOW THE INCOME WOULD BE COMPUTED. SECTION 12 OF THE ACT HAS A DIRECT BEARING IN THE CONTROVERSY IN HAND, THEREFOR E, IT IS IMPERATIVE UPON US TO TAKE NOTE OF THIS SECTION AS UNDER: 12. INCOME OF TRUSTS OR INSTITUTIONS FROM CONTRIBUT IONS.- (1) ANY VOLUNTARY CONTRIBUTIONS RECEIVED BY A TRUST CRE ATED WHOLLY FOR CHARITABLE OR RELIGIOUS PURPOSES OR BY AN INSTI TUTION ESTABLISHED WHOLLY FOR SUCH PURPOSES (NOT BEING CON TRIBUTIONS MADE WITH A SPECIFIC DIRECTION THAT THEY SHALL FORM PART OF THE CORPUS OF THE TRUST OR INSTITUTION) SHALL FOR THE P URPOSES OF SECTION 11 BE DEEMED TO BE INCOME DERIVED FROM PROP ERTY HELD UNDER TRUST WHOLLY FOR CHARITABLE OR RELIGIOUS PURP OSES AND THE PROVISIONS OF THAT SECTION AND SECTION 13 SHALL APP LY ACCORDINGLY. (2) THE VALUE OF ANY SERVICES, BEING MEDICAL OR EDU CATIONAL SERVICES, MADE AVAILABLE BY ANY CHARITABLE OR RELIG IOUS TRUST RUNNING A HOSPITAL OR MEDICAL INSTITUTION OR AN EDU CATIONAL INSTITUTION, TO ANY PERSON REFERRED TO IN CLAUSE (A ) OR CLAUSE (B) OR CLAUSE (C) OR CLAUSE (CC) OR CLAUSE (D) OF SUB-S ECTION (3) OF SECTION 13, SHALL BE DEEMED TO BE INCOME OF SUCH TR UST OR INSTITUTION DERIVED FROM PROPERTY HELD UNDER TRUST WHOLLY FOR CHARITABLE OR RELIGIOUS PURPOSES DURING THE PREVIOU S YEAR IN WHICH SUCH SERVICES ARE SO PROVIDED AND SHALL BE CH ARGEABLE TO INCOME-TAX NOTWITHSTANDING THE PROVISIONS OF SUB-SE CTION (1) OF SECTION 11. EXPLANATION.FOR THE PURPOSES OF THIS SUB-SECTION, THE EXPRESSION VALUE SHALL BE THE VALUE OF ANY BENEFI T OR FACILITY GRANTED OR PROVIDED FREE OF COST OR AT CONCESSIONAL RATE TO ANY PERSON REFERRED TO IN CLAUSE (A) OR CLAUSE (B) OR C LAUSE (C) OR CLAUSE (CC) OR CLAUSE (D) OF SUB-SECTION (3) OF SEC TION 13. 6 (3) NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 1 1, ANY AMOUNT OF DONATION RECEIVED BY THE TRUST OR INSTITU TION IN TERMS OF CLAUSE (D) OF SUB-SECTION (2) OF SECTION 80G IN RESPECT OF WHICH ACCOUNTS OF INCOME AND EXPENDITURE HAVE NOT B EEN RENDERED TO THE AUTHORITY PRESCRIBED UNDER CLAUSE ( V) OF SUB- SECTION (5C) OF THAT SECTION, IN THE MANNER SPECIFI ED IN THAT CLAUSE, OR WHICH HAS BEEN UTILISED FOR PURPOSES OTH ER THAN PROVIDING RELIEF TO THE VICTIMS OF EARTHQUAKE IN GU JARAT OR WHICH REMAINS UNUTILISED IN TERMS OF SUB-SECTION (5 C) OF SECTION 80G AND NOT TRANSFERRED TO THE PRIME MINISTERS NAT IONAL RELIEF FUND ON OR BEFORE THE 31ST DAY OF MARCH, 2004 SHALL BE DEEMED TO BE THE INCOME OF THE PREVIOUS YEAR AND SHALL ACC ORDINGLY BE CHARGED TO TAX. 12. A BARE PERUSAL OF SUB-CLAUSE (I) OF SEC. 12 WOU LD INDICATE THAT IF AN ASSESSEE HAD RECEIVED DONATIONS WHICH WE RE NOT WITH A SPECIFIC DIRECTIONS THAT THEY SHALL FORM PART OF THE CORPUS DONATION THEN, FOR THE PURPOSE OF SECTION 11 BE DEE MED TO BE INCOME DERIVED FROM PROPERTY HELD UNDER THE TRUST W HOLLY FOR CHARITABLE OR RELIGIOUS PURPOSE. IT HAS NOT BEEN SP ECIFICALLY DEMONSTRATED BEFORE US THAT THESE DONATIONS WERE TO WARDS THE CORPUS. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMIT TED THAT ONCE THE DONATIONS ARE HELD BY THE LEARNED CIT(APPE ALS) AS SYNONYMOUS AND ASSESSEE IS ABLE TO DEMONSTRATE THE MAINTENANCE OF THE COMPLETE RECORD THEN SEC. 115BBC OF THE ACT WOULD NOT BE APPLICABLE. THE RECEIPTS ARE TO BE GOVERNED BY SEC. 11 AND 12 OF THE ACT. THE MOMENT ASSESSEE HAS TREATED THE DONATIONS AS ITS INCOME AND IT IS DEEMED TO BE AN I NCOME DERIVED FROM THE PROPERTY HELD UNDER THE TRUST AS P ER SEC. 12(1) THEN, THE ONLY ASPECT REMAINED IS TO VERIFY WHETHER SUCH AMOUNTS HAVE BEEN APPLIED FOR THE OBJECTS OF THE SO CIETY TO THE EXTENT OF 85% OR NOT? ACCORDING TO THE ASSESSEE, IT HAS APPLIED RS.533,22,266 AS EXPENDITURE TOWARDS FULFILLMENT OF ASSESSEES OBJECTIONS AND IT HAS AN INCOME OF ONLY RS.90,79,41 2. THIS FACT WAS BROUGHT TO THE NOTICE OF THE ASSESSING OFFICER IN THE REPLY DATED 21.12.2009 WHICH HAS BEEN REPRODUCED BY THE A SSESSING OFFICER ON PAGE 5. 7 13. IN THE JUDGMENT REFERRED BY THE ASSESSEE, A SIM ILAR ISSUE WAS INVOLVED. THE ITAT IN THE CASE OF ST. VIVEKANAN D EDUCATION & WELFARE SOCIETY HAS CONSIDERED THIS ASPECT. THE D ISCUSSION MADE BY THE ITAT READS AS UNDER: 7. HAVING GONE THROUGH THE DECISIONS RELIED UPON B Y THE LD. A.R., WE FIND THAT IN THE CASE OF DIT(E) VS KESHAV SOCIAL & CHARITABLE FOUNDATION (SUPRA), BEFORE THE HONBLE D ELHI HIGH COURT, THE CHARITABLE INSTITUTION MADE DISCLOSURE O F DONATIONS ALONG WITH LIST OF DONORS. THERE WAS NO DISPUTE TH AT MORE THAN 75% OF THE DONATIONS WERE APPLIED FOR CHARITABLE PU RPOSES. IT WAS HELD THAT THE FACTS THAT COMPLETE LIST OF DONOR S WAS NOT FILED OR THAT THE DONORS WERE NOT PRODUCED, DOES NOT NECE SSARILY LEAD TO THE INFERENCE THAT THE ASSESSEE WAS TRYING TO IN TRODUCE UNACCOUNTED MONEY BY WAY OF DONATION RECEIPTS AND S ECTION 68 HAS NO APPLICATION TO THE FACTS OF THE CASE AS THE ASSESSEE HAD IN FACT DISCLOSED THE DONATIONS AS INCOME. THE HONBL E DELHI HIGH CURT APPROVED THE DECISION OF THE TRIBUNAL THA T ADDITION U/S 68 WAS NOT CORRECT AND EXEMPTION U/S 11 CANNOT BE DENIED. 8. AGAIN, IN THE CASE OF DIT(E) VS MOTIBAGH MUTUAL AID EDUCATION (SUPRA), BEFORE HONBLE HIGH COURT, THE A SSESSEE RECEIVED GUPTDAAN WHICH WAS SHOWN AS UNSECURED LO AN BY MISTAKE. SOME OTHER DONATIONS WERE ALSO THERE. TH E DONATIONS WERE UTILIZED FOR CONSTRUCTION OF SCHOOL BUILDING. IT WAS HELD THAT WHEN THERE IS NO DEVIATION OF FUNDS THERE ARE MINOR CONTRADICTIONS OR DEVIATION IN THE ACCOUNTS, THIS B Y ITSELF CANNOT SUBSTANTIATE THE ALLEGATION THAT THE ASSESSEE EXIST S FOR PROFIT MOTIVE, THEREFORE, EXEMPTION U/S 10(22) OF THE ACT CANNOT BE DENIED TO THE ASSESSEE. IT WAS HELD THAT THE AMOUN T OF GUPTDAAN IS A RECEIPT AND NOT AN OUTFLOW FROM THE CORPUS OF THE ASSESSEE. THEREFORE, THE QUESTION IN THIS REGA RD IS WHETHER THE AMOUNT WAS RECEIVED BY WAS OF A LOAN OR BY WAY OF GUPTDAAN. IN EITHER CASE, IT CANNOT BE SAID THAT T HE AMOUNT WAS RECEIVED WITH A PROFIT MOTIVE, UNLESS IT WAS NOT ME ANT FOR UTILIZATION FOR EDUCATIONAL PURPOSE FOR WHICH THERE IS NO EVIDENCE ON RECORD. IT WAS HELD FURTHER THAT EVEN IF DONORS WERE NOT PRODUCED, IT WAS NOT NECESSARILY LEAD TO A N INFERENCE THAT THE ASSESSEE WAS TRYING TO INTRODUCE UNACCOUNT ED MONEY BY WAY OF DONATION RECEIPTS. THE DONATIONS WERE UTILI ZED FOR CONSTRUCTION OF SCHOOL BUILDING, IS CLEARLY AN EDUC ATIONAL 8 /CHARITABLE PURPOSE. BUT AT NO STRETCH OF IMAGINAT ION IT CAN BE SAID THAT THE DONATIONS WERE RECEIVED WITH SOME PRO FIT MOTIVE AS HELD BY HONBLE DELHI HIGH COURT. 9. IN THE CASE OF DCIT(E) VS NEW ANAND EDUCATION SO CIETY (SUPRA) BEFORE DELHI BENCH OF THE TRIBUNAL, THE DIS PUTE WAS RAISED AGAINST THE DONATION RECEIPT OF RS.7,65,467/ -. THE ASSESSEE TRUST DULY REGISTERED U/S 12A(A) OF THE AC T HAD FURNISHED DETAILS OF DONATIONS RECEIVED. THE A.O. HELD THAT THESE WERE ONLY ACCOMMODATION ENTRIES AS PER THE RE PORT OF THE INVESTIGATION WING. HE ACCORDINGLY SUBJECTED THE S AID DONATION RECEIPTS FOR CHARGE OF TAX AT MAXIMUM MARG INAL RATE. LD CIT(A) DELETED THE SAME. THE TRIBUNAL UPHELD TH E FIRST APPELLATE ORDER ON THE ISSUE WITH THIS FINDING THAT TO OBTAIN BENEFIT OF EXEMPTION U/S 1`1, THE ASSESSEE IS REQUI RED TO SHOW THAT THE DONATIONS WERE VOLUNTARY. IT WAS OBSERVED THAT THE ASSESSEE HAD NOT ONLY DISCLOSED THE DONATIONS BUT H AD ALSO SUBMITTED LIST OF DONORS. IT WAS HELD FURTHER THAT THE FACT THAT COMPLETE LIST OF DONORS WERE NOT FILED AND THE DONO RS WERE NOT PRODUCED, DOES NOT NECESSARILY LEAD TO THE INFERENC E THAT THE ASSESSEE WAS TRYING TO INTRODUCE UNACCOUNTED MONEY BY WAY OF DONATION RECEIPTS. THE TRIBUNAL RESPECTFULLY FOLL OWED THE ABOVE RATIO LAID DOWN BY THE HONBLE DELHI HIGH COU RT IN THE CASE OF KESHAV SOCIAL AND CHARITABLE FOUNDATION (SU PRA) DECLINED TO INTERFERE WITH THE FIRST APPELLATE ORDE R ON THE ISSUE. 10. IN VIEW OF THE RATIO LAID DOWN IN THE ABOVE CIT ED DECISIONS OF HONBLE DELHI HIGH COURT WHEN WE EXAMINED THE OR DERS OF AUTHORITIES BELOW, WE DO NOT FIND JUSTIFICATION IN THE ACTION IN SUSTAINING THE ADDITION OF RS.140 LACS U/S 68 OF TH E ACT, ONLY BECAUSE MEMBERS OF THE DONORS COULD NOT BE VERIFIED WHEN THERE IS NO DISPUTE THAT THE ASSESSEE HAD MADE DISC LOSURE OF DONATIONS ALONG WITH LIST OF DONORS, AMOUNTS WERE P AID THROUGH BANKING CHANNELS AND DUE TO THIS NON-AVAILABILITY / NON EXISTENCE ON THEIR GIVEN ADDRESSES THE AMOUNTS SO R ECEIVED IN DONATIONS WERE APPLIED FOR CHARITABLE PURPOSES. IT IS PERTINENT TO MENTION OVER HERE THAT DURING THE YEAR, THE ASSE SSEE HAD RECEIVED CORPUS DONATIONS OF RS.1,99,86,101/- AND I T HAD COLLECTED RS.3,51,76,220/- AS PER INCOME AND EXPEND ITURE ACCOUNT, THUS THE TOTAL AMOUNT AVAILABLE WITH THE A SSESSEE FROM 9 THESE TWO ACCOUNTS WAS RS.5,51,62,321`/- AGAINST WH ICH IT HAD SPENT RS.4,03,76,796/- ON THE FIXED ASSETS AND RS.3 ,09,80,493/- ON RECURRING EXPENSES. AFTER DEPRECIATION OF RS.63, 08,433/-, THE TOTAL APPLICATION OF FUNDS COMES TO RS.6,50,48,856/ -. THUS, WHEN THERE IS NO DISPUTE THAT THE AMOUNT IN QUESTIO N WAS APPLIED FOR EDUCATIONAL PURPOSES, THE FACT THAT THE DONATIONS REMAINED UNVERIFIABLE DUE TO NON AVAILABILITY OF DO NORS AT THE ADDRESSES GIVEN IN THEIR CONFIRMATIONS DOES NOT NEC ESSARILY LEAD TO THE INFERENCE THAT THE ASSESSEE WAS TRYING TO IN TRODUCE UNACCOUNTED MONEY BY WAY OF DONATION RECEIPTS. WE, THEREFORE, RESPECTFULLY FOLLOWING THE DECISION OF H ONBLE DELHI HIGH COURT IN THE CASE OF KESHAV SOCIAL & CHARITABL E FOUNDATION (SUPRA), HOLD THAT THE PROVISION OF SECT ION 68 OF THE ACT HAS NO APPLICATION TO THE FACTS OF THE PRESENT CASE WHEN LIST OF DONORS WITH SUPPORTING EVIDENCE WAS FILED, AMOUN TS WERE PAID THROUGH BANKING CHANNELS, THERE IS ALSO NO DIS PUTE THAT THE OBJECTS AND ACTIVITIES OF THE ASSESSEE WERE CHARITA BLE IN NATURE AND IT WAS DULY REGISTERED UNDER THE PROVISIONS OF SECTION 12A OF THE I. T. ACT, 1961. WE THUS DIRECT THE A.O. TO DELETE THE ADDITION OF RS.140 LACS MADE U/S 68 OF THE ACT IN QUESTION. SO FAR APPLICABILITY OF THE PROVISIONS UNDER SECTION 1 15BBC ARE CONCERNED, WE DO NOT FIND SUBSTANCE IN THE CONTENTI ON OF THE LD. DR AS THE DONATIONS IN QUESTION CAN NOT BE TURNED A S ANONYMOUS SINCE LIST OF THE DONORS WAS FILED AND UN DISPUTEDLY PAYMENTS HAVE BEEN THROUGH BANKING CHANNELS. THE G ROUND NOS.1-10 INVOKING THE ISSUE ARE THUS ALLOWED IN FA VOUR OF THE ASSESSEE. 14. THE ISSUE IN ALL OTHER JUDGMENTS REFERRED BY THE AS SESSEE IS SIMILAR. THE ORDERS OF THE ITAT, DELHI ARE BASIC ALLY BASED UPON THE JUDGMENT OF HON'BLE DELHI HIGH COURT IN THE CASE OF KESHAV TRUST. THE ORDER IN THE CASE OF HANSRAJ SMARAK SOCIETY HAS ALSO BEEN UPHELD BY THE HON'BLE DELHI HIGH COURT. RESPECTFULLY FOLLOWING TH E JUDGMENT OF THE HON'BLE DELHI HIGH COURT AND ORDERS OF THE CO-ORDINATE BENCH, WE ARE OF THE VIEW THAT BENE FIT OF SECTIONS 11 & 12 IN COMPUTING THE INCOME RECEIVED O N ACCOUNT OF DONATIONS FROM IDENTIFIED DONORS CANNOT BE DENIED. CONSEQUENTLY, WE ALLOW THE APPEAL OF ASSESS EE AND DIRECT THE ASSESSING OFFICER TO VERIFY THE FACT S THAT 10 ASSESSEE HAS APPLIED 85% OF ITS INCOME DURING THE Y EAR INCLUDING THESE DONATIONS ON ITS OBJECTS. IF THE CL AIM OF THE ASSESSEE THAT IT HAS INCURRED AN EXPENDITURE OF RS.533,22,266 TOWARDS FULFILLMENT OF ITS OBJECT DUR ING THE YEAR THEN ITS INCOME WOULD BE ASSESSABLE AT NIL BEC AUSE THE INCURRENCE OF THIS EXPENDITURE WOULD TAKE CARE THE ADDITIONS OF RS.192,35,000, RS. 30,00,000 AND RS.11,00,000. CHARGING OF INTEREST UNDER SEC. 234B AND 167B OF THE INCOME-TAX ACT, 1961 WOULD BE CONSEQUENTIAL. 15. IN THE RESULT, THE APPEAL OF THE E IS ALLOWED F OR STATISTICAL PURPOSES. 8. KEEPING IN MIND THE ABOVE DECISION OF THE TRIBUN AL IN THE CASE OF ASSESSEE ITSELF ON AN IDENTICAL ISSUE FOR THE ASSES SMENT YEAR 2007-08 (SUPRA), WE FIND THAT IN THE ASSESSMENT YEARS 2006-07 AND 20 08-09 UNDER CONSIDERATION ALMOST SIMILAR ARE THE FACTS. IN THE ASSESSMENT YEAR 2006-07, IN SUPPORT OF THE CLAIMED DONATION OF RS.6,50,000/- RE CEIVED FROM USHA (INDIA) LTD., THE ASSESSEE HAD SUBMITTED CONFIRMATION OF DO NATION FROM USHA (INDIA) LTD. DATED 22.03.2006 ALONG WITH BANK STATEMENT DUR ING PERIOD 01.04.2005 TO 13.10.2008 SHOWING DONATION OF RS.6.50 LAC ON 31 .03.2006 BY DEMAND DRAFT, WHICH WAS MADE FROM THE BANK ACCOUNT OF THE DONOR WITH AXIS BANK LTD. VIDE CHEQUE NOS. 446046 & 446045. THE ASSESSIN G OFFICER HAD DENIED THE GENUINENESS OF THE CLAIMED DONATION MAINLY ON T HE BASIS THAT THE DONOR USHA (INDIA) LTD. HAD REFUSED VIDE ITS LETTER DATED 24.09.2008 FOR GIVING DONATION TO SUNDER DEEP EDUCATION SOCIETY THAT IS T HE ASSESSEE. LIKEWISE IN THE ASSESSMENT YEAR 2008-09 THE ASSESSEE HAD DECLAR ED DONATION RECEIPTS OF 11 RS.73,52,603/- TOWARDS CORPUS FUND, OUT OF WHICH AD DITION OF RS.63,52,600/- HAS BEEN MADE U/S 68 READ WITH SECTION 115BBC OF TH E ACT, HOLDING IT AS INCOME FROM UNEXPLAINED SOURCES. DURING THIS YEAR A LSO THE ASSESSEE HAD FILED DETAILS OF DONATIONS ALONG WITH CONFIRMATIONS , COPIES OF INCOME TAX RETURNS AND CHEQUES. THE ADDITION IN QUESTION HAS B EEN MADE BY THE ASSESSING OFFICER, ON THE BASIS THAT CONFIRMATIONS WERE IN A STEREOTYPED FORMAT, COPIES OF INCOME TAX RETURNS IN SOME CASES WERE OF TWO YEARS OLD AND WERE NOT RELATED WITH CURRENT YEAR AND THAT IN MOST OF THE CASES NOTICE ISSUED U/S 133(6) OF THE ACT WERE RETURNED BACK WITH POSTA L REMARK THAT NO SUCH PERSON EXIST AT THE GIVEN ADDRESS. THE ASSESSING OF FICER ALSO NOTED THAT NO DONORS WERE PRODUCED AND THERE WERE MIS-MATCH OF SI GNATURES IN THE CONFIRMATION LETTER AND INCOME TAX RETURNS. LIKEWIS E IN THE ASSESSMENT YEAR 2007-08 DECIDED BY THE TRIBUNAL, DURING THE ASSESSM ENT YEARS UNDER CONSIDERATION THE ASSESSEE HAD ALSO FURNISHED LIST OF DONORS WITH SUPPORTING EVIDENCE, AMOUNT WERE PAID THROUGH BANKING CHANNELS AND THERE IS NO DISPUTE THAT THE OBJECTS AND ACTIVITIES OF THE ASSE SSEE WERE CHARITABLE IN NATURE AND IT WAS DULY REGISTERED UNDER THE PROVISI ONS OF SECTION 12AA OF THE ACT. 9. WE THUS FIND THAT IN THE ASSESSMENT YEAR 2007-08 , THE TRIBUNAL HAS DELETED THE ADDITION OF RS.140 LACS RECEIVED ON ACC OUNT OF DONATIONS ON THE 12 BASIS OF CITED DECISIONS BEFORE IT THAT PROVISIONS OF SECTION 68 OF THE ACT HAS NO APPLICATION WHEN LIST OF DONORS WITH SUPPORTING EVIDENCE WAS FILED, AMOUNTS WERE PAID THROUGH BANKING CHANNEL AND THERE IS NO DISPUTE THAT THE OBJECTS AND ACTIVITIES OF THE ASSESSEE WERE CHARITA BLE IN NATURE AND IT WAS DULY REGISTERED UNDER THE PROVISIONS OF SECTION 12A OF THE ACT. 11. REGARDING THE APPLICABILITY OF THE PROVISIONS U /S 115BBC OF THE ACT, THE TRIBUNAL FEELS THAT THE DONATIONS IN QUESTION C ANNOT BE TERMED AS ANONYMOUS SINCE LIST OF THE DONORS WERE FILED AND P AYMENTS HAVE BEEN MADE THROUGH BANKING CHANNEL. THE TRIBUNAL HAS HELD THAT THE BENEFIT OF SECTIONS 11 & 12 IN COMPUTING THE INCOME RECEIVED ON ACCOUNT OF DONATIONS FROM IDENTIFIED DONORS CANNOT BE DENIED. THE APPEAL HAS THUS BEEN ALLOWED BY THE TRIBUNAL IN THE ASSESSMENT YEAR 2007-08, SUBJECT TO VERIFICATION BY THE ASSESSING OFFICER TO THE FACTS THAT ASSESSEE HAS AP PLIED 85% OF ITS INCOME DURING THE YEAR INCLUDING THE DONATIONS ON ITS OBJE CTS. IT HAS BEEN DIRECTED THAT IF THE CLAIM OF THE ASSESSEE THAT IT HAS INCUR RED AN EXPENDITURE OF RS.5,03,22,266/- TOWARDS FULFILLMENT OF ITS OBJECT DURING THE YEAR THEN ITS INCOME WOULD BE ASSESSABLE AT NIL BECAUSE THE INCUR RENCE OF THIS EXPENDITURE WOULD TAKE CARE OF ADDITION OF RS.1,92,35,000/-, RS . 30,00,000/- & RS.11,00,000/-. 13 12. WE THUS FOLLOWING THE ABOVE CITED DECISION OF T HE TRIBUNAL ON AN IDENTICAL ISSUE IN THE ASSESSMENT YEAR 2007-08 SET ASIDE THE MATTER TO THE FILE OF THE ASSESSING OFFICER TO THIS EXTENT TO VERIFY T HE CORRECTNESS OF THE FACTS THAT THE ASSESSEE HAS APPLIED 85% OF ITS INCOME DUR ING THE YEARS INCLUDING THE DONATIONS IN QUESTION ON FULFILLMENT OF ITS OBJ ECTS, IF THE ASSESSING OFFICER FINDS IT CORRECT, THEN ITS INCOME WOULD BE ASSESSABLE AT NIL BECAUSE THE SAID INCURRENCE OF EXPENDITURE WILL TAKE CARE O F THE ADDITIONS IN QUESTION. IN RESULT, APPEALS ARE ALLOWED FOR STATISTICAL PURP OSES. THE ORDER PRONOUNCED IN THE OPEN COURT ON 01.04. 2014. SD/- SD/- (G. D. AGRAWAL) (I. C. SUDHIR) VICE PRESIDENT JUDICIAL MEMBER DATED: 01APRIL, 2014. *S. SINHA* COPY OF THE ORDER FORWARDED TO:- 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR BY ORDER DEPUTY REGISTRAR, ITAT.