Vikramaditya Educational Society , Rohtak V. DCIT, Sonepat Circle , Sonepat

ITA 4165/DEL/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 2976 (ITAT-DELHI)
• Duration Of Justice: 8 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-02-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2007-2008
• Appeal Filed On: 31-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S L ANURAGI
• Keywords: Charitable institution; Additional evidence
• Section: 12; 144; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC NEW DELHI BEFORE SHRI AMIT SHUKLA, JUDICIAL MEMBER I.T.A. NO.4165/DEL/2018 ASSESSMENT YEAR: 2007-08 VIKRAMADITYA EDUCATIONAL SOCIETY, ROHTAK. V. DCIT, SONEPAT CIRCLE, SONEPAT. TAN/PAN: AAAAV 9618E (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI GAUTAM JAIN, ADV & SHRI LALIT MOHAN, CA. RESPONDENT BY: SHRI S.L. ANURAGI, SR.D.R. DATE OF HEARING: 08 01 2019 DATE OF PRONOUNCEMENT: 22 02 2019 O R D E R THE AFORESAID APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE IMPUGNED ORDER DATED 03.04.2018 PASSED BY LD. CIT(A)-II GURGAON FOR THE QUANTUM OF ASSESSMENT PAS SED U/S 144 FOR THE ASSESSMENT YEAR 2007-08. OUT OF VARIOUS GROUNDS OF APPEAL, THE ASSESSEE HAS ONLY CHALLENGED THAT TH E LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN UPHOLDING THE ADDI TION OF RS.1,19,723/- AND RS.15,94,000/- BY DENYING THE CLA IM OF EXEMPTION U/S.10(23C)(IIIAD). THE LEGAL GROUND RELA TING TO ASSUMPTION OF JURISDICTION ON ISSUANCE OF NOTICE U/S . 143(2) HAS NOT BEEN PRESSED. HENCE, THE SAME IS DISMISSED AS NOT PRESSED. 2. THE PRESENT APPEAL HAS A CHEQUERED HISTORY AS THIS IS THIRD ROUND OF PROCEEDINGS BEFORE THE TRIBUNAL. THE ASSESSEE HAD FILED ITS RETURN OF INCOME AT NIL ON 18.01.20 08 WHICH WAS I.T.A. NO.4165/DEL/2018 2 DULY PROCESSED U/S. 143(1). THE ASSESSEE-SOCIETY IS AN EDUCATIONAL SOCIETY, RUNNING A B.ED COLLEGE IMPARTI NG EDUCATION UP TO B.ED LEVEL SITUATED AT VILLAGE BALI YANA, DIST. ROHTAK, HARYANA AND IS AFFILIATED TO MDU ROHTAK. AS PER THE PROFIT AND LOSS ACCOUNT FOR THE YEAR ENDING 31 ST MARCH, 2007, IT HAS SHOWN THE GROSS RECEIPT AT RS.31,70,386/- AN D TOTAL EXPENDITURE DEBITED TO AN INCOME AND EXPENDITURE AM OUNT FOR RS.60,50,663/- AND THE SURPLUS INCOME WAS SHOWN AT RS.1,19,723/-. THE LD. ASSESSING OFFICER HAS ASSESS ED THE SURPLUS INCOME AT RS.1,19,723/- AFTER RELYING UPON THE DECISION OF HON'BLE UTTRAKHAND HIGH COURT IN THE CA SE OF CIT VS. QUEENS EDUCATION SOCIETY, REPORTED IN (2009) 1 77 TAXMAN 386 . APART FROM THAT, HE HAS ALSO MADE ADDITION OF RS.15,94,000/- ON ACCOUNT OF RECEIPT SHOWN UNDER TH E HEAD CORPUS FUND ON THE GROUND THAT ASSESSEE HAS NOT F URNISHED DETAILS AND NATURE OF DONATION SHOWN UNDER THE CORP US FUNDS AND ACCORDINGLY, HE HAS TREATED THE SAME AS ANONYMO US DONATION TO BE TAXED U/S.115BBC(I). ONE OF THE REAS ONS GIVEN BY THE ASSESSING OFFICER FOR TAXING THE SURPLUS INC OME IS THAT AS PER THE MEMORANDUM OF UNDERSTANDING AND AIMS AND OBJECTS, THERE ARE CERTAIN ANCILLARY OBJECTS LIKE D EVELOPMENT OF PEOPLES PHYSICAL AND MENTAL GROWTH BY CONDUCTING G AMES AND SPORTS AND ERADICATION OF SOCIAL EVILS, LIKE DO WRY, DRUG ADDICTION, ALCOHOLISM, SMOKING, ETC. SINCE ASSESSEE S OBJECT IS NOT SOLELY FOR EDUCATIONAL PURPOSES, THEREFORE, EXE MPTION CLAIMED U/S. 10(23C)(IIIAD) IS NOT ALLOWABLE AND FU RTHER THE I.T.A. NO.4165/DEL/2018 3 SURPLUS SHOWN BY THE ASSESSEE REVEALS THAT IT IS EA RNING PROFIT. 3. AGAINST THE SAID ASSESSMENT ORDER, ASSESSEE HAS FILED 1 ST APPEAL BEFORE THE LD. CIT(A) CHALLENGING THE ASSESS MENT ORDER PASSED U/S.144 AND THAT LD. ASSESSING OFFICER HAS W RONGLY RELIED UPON THE JUDGMENT OF HON'BLE UTTRAKHAND HIGH COURT IN THE CASE OF CIT VS. QUEENS EDUCATION SOCIETY (S UPRA). FURTHER THE ASSESSEES ENTIRE RECEIPT AND OPERATION IS ONLY FROM THE FIELD OF EDUCATION AND SIMPLY BECAUSE IT H AS SOME OTHER OBJECTS IT WILL NOT DISENTITLE FOR EXEMPTION SO LONG AS ACTIVITY CARRIED ON BY IT IN THAT ASSESSMENT YEAR W AS THAT OF RUNNING AN EDUCATIONAL INSTITUTION. SIMILARLY, ADDI TION OF RS.15,94,000/- WAS ALSO CHALLENGED AND WAS CATEGORI CALLY STATED THAT ASSESSING OFFICER HAS NOT GIVEN SUFFICI ENT OPPORTUNITY TO PRODUCE THE DETAILS AND ACCORDINGLY ALL THE DETAILS OF THE PERSONS WHO HAVE GIVEN THE DONATIONS WERE FILED. HOWEVER, THE LD. CIT (A) VIDE ORDER DATED 9. 02.2011 WITHOUT ADVERTING TO THE ASSESSEES SUBMISSION FILE D BEFORE HIM HAS DISMISSED THE ASSESSEES APPEAL. IN SO FAR AS DETAILS REGARDING ANONYMOUS DONORS WHO HAVE CONTRIBUTED TO THE CORPUS FUND, HE HELD THAT ASSESSEE COULD NOT GIVE S UFFICIENT REASON AS TO WHY SUCH DETAILS WERE NOT FURNISHED BE FORE THE ASSESSING OFFICER AND ACCORDINGLY REFUSED TO ADMIT THE ADDITIONAL EVIDENCES. 4. THE TRIBUNAL IN THE SECOND APPEAL, VIDE ORDER DA TED 12.04.2013 IN ITA NO.1698/DEL/2011, CATEGORICALLY H ELD THAT I.T.A. NO.4165/DEL/2018 4 THE LD. CIT(A) HAS NOT ADDRESSED THE GRIEVANCE OF T HE ASSESSEE THAT THE FAIR AND PROPER OPPORTUNITY OF HEARING WAS NOT GRANTED TO THE ASSESSEE EITHER BY THE ASSESSING OFF ICER OR BY THE LD. CIT(A) AND THE ORDER HAS BEEN PASSED WITHOU T ADVERTING TO THE WRITTEN SUBMISSION FILED BY THE AS SESSEE BEFORE THE LD. CIT(A). ACCORDINGLY, IN THE INTEREST OF JUSTICE MATTER WAS REMITTED BACK TO THE FILE OF THE LD. CIT (A) TO BE DECIDED AFRESH AFTER GIVING DUE AND ADEQUATE OPPORT UNITY OF HEARING TO THE ASSESSEE. 5. ONCE AGAIN ASSESSEE FILED DETAIL WRITTEN SUBMI SSION BEFORE THE LD. CIT(A) ALONG WITH AFFIDAVITS OF VARI OUS DONORS IN SUPPORT OF CONTENTION THAT NONE OF THE DONATIONS AR E ANONYMOUS. APART FROM THAT, THE ASSESSEE HAS ALSO CHALLENGED THE LEGALITY OF THE PROCEEDINGS INITIATE D U/S.143(2) ON THE GROUND THAT IT WAS IN VIOLATION OF CBDT INST RUCTION AND GUIDELINES FOR SELECTION OF SUCH CASES UNDER SC RUTINY AND IN SUPPORT OF CERTAIN DECISION RELIED UPON WERE ALS O FILED. LD. CIT(A), HELD THAT ISSUE OF ILLEGALITY OF PROCEEDING S INITIATED U/S.143(2) WAS NOT A GROUND OF APPEAL FILED BEFORE THE TRIBUNAL AS THE TRIBUNAL HAS RESTORED ONLY TWO ISSU ES BEFORE THE LD. CIT(A), I.E., CLAIM OF EXEMPTION U/S.10(23C )(IIIAD) AND OF CORPUS DONATION. 6. LD. CIT (A) ONCE AGAIN IN SECOND ROUND, CONFIRME D THE ADDITIONS MADE BY THE ASSESSING OFFICER AND HELD TH AT, FIRSTLY, THE JUDGMENT OF HON'BLE PUNJAB AND HARYANA HIGH COUR T RELIED UPON BY THE ASSESSEE IN THE CASE OF CIT VS. HARYANA I.T.A. NO.4165/DEL/2018 5 WAREHOUSING CORPORATION; AND PINE GROVE INTERNATION AL CHARITABLE TRUST VS. UNION OF INDIA, WHICH HAS BEEN CONFIRMED BY THE HON'BLE SUPREME COURT ALSO ARE NOT APPLICABLE ON THE FACTS OF THE ASSESSEES CASE AND ARE DISTINGUISHABLE. SECONDLY, PROVISION OF SECTION 10( 23C)(IIIAD) WOULD BE APPLICABLE ONLY IF THE ASSESSEE-SOCIETY IS EXISTING SOLELY FOR THE EDUCATIONAL PURPOSE AND IF THERE ARE SOME OTHER OBJECTS OF CHARITABLE PURPOSE, THEN THE BENEFIT OF SECTION 10(23C) COULD NOT BE GIVEN. THIRDLY, THE ASSESSEES SOCIETY WAS GRANTED REGISTRATION U/S.12A ONLY VIDE ORDER DA TED 12.07.2012 BY CIT ROHTAK, AND THEREFORE, IT WAS NOT ALLOWABLE FOR ANY KIND OF BENEFIT U/S.11 AND 12 FOR THE YEAR UNDER CONSIDERATION AND ALSO NOT ELIGIBLE FOR BENEFIT OF SECTION 10(23C)(IIIAD). LASTLY, ON THE ISSUE OF CORPUS DONA TION HE HELD THAT SAME IS AN INCOME IN TERMS OF SUB CLAUSE (2A) OF CLAUSE (24) OF SECTION 2 AND SUCH CORPUS DONATION WOULD BE EXEMPT ONLY U/S.11(1)(D) AND SINCE SECTION 11 AND 12 ARE N OT ALLOWABLE TO THE ASSESSEE SOCIETY IN THIS YEAR, THE REFORE, SAME IS NOT ALLOWABLE. ACCORDINGLY, HE DISMISSED THE ASS ESSEES APPEAL. 7. AGAIN, THE MATTER WENT TO THE TRIBUNAL IN SECOND ROUND AND THE TRIBUNAL VIDE ORDER DATED 31.01.2017 AGAIN REMANDED THE MATTER BACK TO THE FILE OF THE LD. CIT (A) HOLDING THAT THE EARLIER DIRECTION OF THE TRIBUNAL DOES NOT PUT ANY FETTER ON THE POWERS OF LD. CIT (A) TO DECIDE THE J URISDICTIONAL ISSUES RAISED BEFORE HIM AND THEREFORE, LD. CIT (A) WAS NOT JUSTIFIED IN DECIDING THE JURISDICTION ISSUE. ACCORDI NGLY, THE I.T.A. NO.4165/DEL/2018 6 APPEAL WAS REMITTED TO THE FILE OF THE LD. CIT (A) FOR DECIDING THE ISSUE RAISED BEFORE HIM. 8. NOW AGAIN IN THE THIRD ROUND OF PROCEEDINGS, THE LD. CIT (A) HAS DECIDED THE ISSUE RELATING TO LEGALITY OF P ROCEEDINGS INITIATED U/S.143(2) AGAINST THE ASSESSEE AND THIS TIME HE HAS NOT EVEN DECIDED THE ISSUES ON MERIT. THUS, ONCE AG AIN ASSESSEE WAS PUSHED FOR SECOND APPEAL IN THIRD ROUN D OF PROCEEDINGS 9. SINCE, THE LEGAL ISSUE HAS NOT BEEN PRESSED BEFORE ME, THEREFORE, THE ONLY ISSUE REMAINS, WHETHER THE ADDI TION MADE BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER IS SUSTAINABLE OR NOT. 10. BEFORE ME, AT THE OUTSET, LD. DR SUBMITTED THAT , FIRSTLY, IN THE LAST ORDER OF THE TRIBUNAL, I.E., ORDER DATE D 13.01.2017 THE POINT OF REMITTANCE TO THE LD. CIT (A) WAS ONLY WITH REGARD TO SECTION 143(2); AND SECONDLY, SINCE THE LD. CIT (A) HAS NOT DECIDED THE ISSUE ON MERITS, THEREFORE, MATTER CAN BE REMANDED BACK ONCE AGAIN TO DEAL AND DECIDE THE ISS UE ON MERITS. 11. ON THE OTHER HAND, LD. COUNSEL FOR THE ASSESSEE , SHRI GAUTAM JAIN SUBMITTED THAT ALREADY THREE ROUND OF PROCEEDINGS HAVE GONE BY AND ALMOST MORE THAN NINE YEARS HAVE PASSED SINCE THE LAST ASSESSMENT ORDER, THEREF ORE, THE MATTER SHOULD NOT BE REMANDED BACK TO THE FILE BY T HE LD. CIT(A). HE SUBMITTED THAT, ALL THE ISSUE RELATING T O MERITS WAS I.T.A. NO.4165/DEL/2018 7 NOT ONLY CHALLENGED BEFORE THE LD. CIT (A) IN THE F IRST AND SECOND ROUND, BUT IN THIRD ROUND ALSO, WHICH IS EVI DENT FROM THE WRITTEN SUBMISSIONS FILED BEFORE HIM. IT WOULD NOT BE CORRECT TO INTERPRET THAT LD. CIT (A) WAS NOT REQUI RED TO ADJUDICATE THE APPEAL ON MERITS, BECAUSE NOT ONLY T HE ENTIRE ISSUES WERE CHALLENGED BEFORE THE TRIBUNAL BUT ALSO BEFORE THE LD. CIT (A) AND THE TRIBUNAL HAS SET ASIDE THE ENTI RE ISSUE THOUGH IN THE LAST PARAGRAPH THEY HAVE HELD THAT LD . CIT (A) WHO ADJUDICATED THE ISSUES RAISED BY THE ASSESSEE W HICH HAS BEEN INCORPORATED BY THEM AT PAGE 4 OF HIS ORDER. I T DOES NOT MEAN THAT ALL THE OTHER ISSUES HAVE BEEN DISMISSED BY THE TRIBUNAL OR LD. CIT (A) COULD NOT HAVE DECIDED THE ISSUES ON MERITS. 12. HE SUBMITTED THAT IN SO FAR AS TAXING THE SURPL US AMOUNT OF RS.1,19,723/- BY THE ASSESSING OFFICER WH ICH HAS BEEN CONFIRMED BY THE LD. CIT(A) IN THE EARLIER TWO ORDRERS, THE MAIN REASON GIVEN BY THE DEPARTMENT WAS THAT THERE WERE OTHER OBJECTS OF THE ASSESSEE WHICH SHOWS THAT ASSE SSEE WAS NOT SOLELY FOR EDUCATIONAL PURPOSE. SECONDLY, THE S URPLUS MEANS THAT IT WAS FOR PROFIT MOTIVE AND IN SUPPORT STRONG RELIANCE WAS PLACED BY THE AO AND CIT(A) ON THE DEC ISION OF HON'BLE UTTRAKHAND HIGH COURT IN THE CASE OF CIT VS . QUEENS EDUCATIONAL SOCIETY (SUPRA). HE SUBMITTED THAT JUDG MENT OF HON'BLE UTTRAKHAND HIGH COURT HAS NOW BEEN REVERSED BY THE HON'BLE SUPREME COURT IN THE CASE OF QUEENS EDUCATIONAL SOCIETY VS. CIT REPORTED IN (2015) 372 ITR 699 (SC) AND I.T.A. NO.4165/DEL/2018 8 THUS THE REASONING GIVEN BY THE ASSESSING OFFICER A ND LD. CIT(A) THAT TAXING THE SURPLUS DOES NOT HOLD ANY GR OUND. IN SO FAR AS ADDITION ON ACCOUNT OF DONATION IS CONCERNED , HE SUBMITTED THAT THE ENTIRE DETAILS OF THE PERSONS WH O HAVE GIVEN DONATION WAS FILED IN THE FIRST ROUND OF PROC EEDINGS BEFORE THE LD. CIT (A) WHICH WAS AGAIN DULY SUPPORT ED BY AFFIDAVITS FILED DURING THE SECOND ROUND OF PROCEED INGS, ON WHICH THERE IS NO REBUTTAL OR ADVERSE FINDING GIVEN BY THE APPELLATE AUTHORITIES. THE ONLY REASON CITED BY THE LD. CIT (A) ON THE FIRST ROUND IS THAT THESE DETAILS WERE NOT F ILED BEFORE THE ASSESSING OFFICER DESPITE THE FACT THAT IT WAS DEMONSTRATED FROM RECORDS BEFORE HIM THAT ASSESSING OFFICER HAS NOT GIVEN SUFFICIENT OPPORTUNITY AND THE TIME A LLOWED WAS VERY LESS. ONCE, THESE DETAILS HAVE BEEN FILED WHIC H ARE ALSO AVAILABLE IN THE PAPER BOOK THEN SAME SHOULD HAVE B EEN CONSIDERED, AND FROM THESE DETAILS IS EVIDENTLY CLE AR THAT THE DONATIONS RECEIVED BY THE ASSESSEE ARE NOT ANONYMOU S AS THESE PEOPLE HAVE DULY CONFIRMED THE DONATIONS GIVE N TOWARDS CORPUS. HENCE, NO ADDITION COULD HAVE BEEN MADE. 13. AFTER HEARING BOTH THE PARTIES AND ON PERUSAL O F THE RELEVANT MATERIAL PLACED BEFORE ME, I FIND IT IS RE ALLY TRAVESTY OF JUSTICE THAT FOR SMALL ADDITION, ASSESSEE CARRYIN G OUT EDUCATIONAL ACTIVITY HAS BEEN LITIGATING FOR LAST T EN YEARS AND HAS TO UNDERGO SEVERAL ROUND OF APPELLATE PROCEEDIN GS. SINCE, THE LEGAL ISSUE PERTAINING TO JURISDICTION OF THE AS SESSING OFFICER, ISSUE NOTICE U/S.143(2) IN VIOLATION OF GU IDELINES ISSUED BY CBDT HAS NOT BEEN PRESSED, THEREFORE, THI S ISSUE IS I.T.A. NO.4165/DEL/2018 9 NO LONGER MATTER OF ADJUDICATION IN THIS APPEAL. THO UGH, LD. CIT(A) IN THE IMPUGNED ORDER HAS DECIDED THIS ISSUE ONLY AND HAS NOT ADVERTED TO THE MERITS OF THE ADDITION DESP ITE ASSESSEE THROUGH ITS VARIOUS SUBMISSIONS HAS CHALLE NGED THESE ADDITIONS. EVEN IF WE AGREE WITH THE CONTENTI ON OF THE LD. DR THAT THE MERITS OF THE ADDITIONS SHOULD BE SENT BACK TO THE FILE OF THE LD. CIT (A) AS HE HAS NOT ADJUDICATED TH E ISSUES ON MERITS, BUT IN THE INTEREST OF JUSTICE AND LOOKING T O THE FACT THAT ALMOST DECADE HAS BEEN PASSED AND THE LITIGATI ON IS GOING, THEREFORE TO PUT AN END TO SUCH A LITIGATION , I DEEM IT FIT TO DECIDE THE ISSUES ON MERIT. 14. IT IS AN UNDISPUTED FACT THAT ASSESSEE IS RU NNING A B.ED. COLLEGE IMPARTING EDUCATION UP TO B.ED. LEVEL AND I S AFFILIATED WITH THE MD UNIVERSITY, ROHTAK. THE ENTIRE RECEIPTS SHOWN BY THE ASSESSEE IS FROM THE FEES COLLECTED FROM THE ST UDENTS DURING THE YEAR WHICH AGGREGATED TO RS.31,70,3286/- ; AND THE SURPLUS INCOME OVER EXPENDITURE WAS ONLY RS.1,19,17 3/-. SUCH A SURPLUS INCOME HAS BEEN ADDED BY THE ASSESSI NG OFFICER FOR THE REASON THAT, FIRSTLY , ASSESSEE DID NOT EXIST SOLELY FOR THE EDUCATION PURPOSE AS IT HAS SOME OTHER; AND SECONDLY , IN VIEW OF JUDGMENT OF HON'BLE UTTRAKHAND HIGH COURT IN THE CASE OF CIT VS. QUEENS EDUCATIONAL SOCIETY, THE SU RPLUS IMPLIES THAT IT IS FOR THE PROFITS. NOW, THIS VIEW STANDS OVERRULED BY THE JUDGMENT OF HON'BLE APEX COURT IN T HE CASE OF QUEENS EDUCATIONAL SOCIETY VS. CIT WHEREIN THEIR LORDSHIPS AFTER ANALYZING THE PROVISIONS OF SECTION 10(23C)(IIIAD) HAVE LAID DOWN THE FOLLOWING PRINCIP LE:- I.T.A. NO.4165/DEL/2018 10 (1) WHERE AN EDUCATIONAL INSTITUTION CARRIES ON TH E ACTIVITY OF EDUCATION PRIMARILY FOR EDUCATING PERSONS, THE FACT THAT IT MAKES A SURPLUS DOES NOT LEAD TO THE CONCLUSION THAT IT CEA SES TO EXIST SOLELY FOR EDUCATIONAL PURPOSES AND BECOMES AN INSTITUTION FOR THE PURPOSE OF MAKING PROFIT. (2) THE PREDOMINANT OBJECT TEST MUST BE APPLIED - T HE PURPOSE OF EDUCATION SHOULD NOT BE SUBMERGED BY A PROFIT MAKIN G MOTIVE. (3)A DISTINCTION MUST BE DRAWN BETWEEN THE MAKING O F A SURPLUS AND AN INSTITUTION BEING CARRIED ON 'FOR PROFIT'. N O INFERENCE ARISES THAT MERELY BECAUSE IMPARTING EDUCATION RESULTS IN MAKING A PROFIT, IT BECOMES AN ACTIVITY FOR PROFIT. (4) IF AFTER MEETING EXPENDITURE, A SURPLUS ARISES INCIDENTALLY FROM THE ACTIVITY CARRIED ON BY THE EDUCATIONAL INSTITUT ION, IT WILL NOT BE CEASE TO BE ONE EXISTING SOLELY FOR EDUCATIONAL PUR POSES. (5) THE ULTIMATE TEST IS WHETHER ON AN OVERALL VIEW OF THE MATTER IN THE CONCERNED ASSESSMENT YEAR THE OBJECT IS TO MAKE PROFIT AS OPPOSED TO EDUCATING PERSONS. 15. ERGO, IF ONE APPLIES THE AFORESAID PRINCIPLES, THEN WHAT NEEDS TO BE SEEN IS THE PREDOMINANT OBJECT OF THE S OCIETY AND IF SUCH A PREDOMINANT OBJECT IS EDUCATION THEN EXEM PTION U/S.10(23C)(IIIAD) CANNOT BE DENIED. SECONDLY, MERE FACT THAT THERE IS A SURPLUS IT CANNOT LEAD TO A CONCLUSION T HAT EDUCATIONAL INSTITUTION CEASE TO EXIST SOLELY FOR E DUCATIONAL PURPOSE OR IT HAS BECOME AN INSTITUTION FOR PURPOSE OF MAKING PROFIT. HERE, IN THIS CASE, THE ENTIRE RECEIPTS ARE FROM EDUCATION WHICH IS FAR LESS THAN RS.1 CRORE, I.E. R S. 31.70 LAC. THUS, IF DURING THE YEAR, ENTIRE ACTIVITY RELATES T O CARRYING OUT I.T.A. NO.4165/DEL/2018 11 ACTIVITY OF EDUCATION AND RECIEPTS BEING LESS THAN RS.1 CRORE, THEN EXEMPTION U/S. 10(23C)(IIIAD) CANNOT BE DISALL OWED. ACCORDINGLY, THE ADDITION MADE BY THE ASSESSING OFF ICER ON ACCOUNT OF TAXING THE SURPLUS STANDS DELETED. 16. IN SO FAR AS THE ADDITION ON ACCOUNT OF CORPUS DONATION IS CONCERNED, THE ASSESSING OFFICER HAS TREATED IT AS ANONYMOUS DONATION AND HAS BROUGHT TO TAX U/S.115BB C. AS DISCUSSED ABOVE, THE ASSESSEE HAS CLEARLY PLEADED B EFORE THE APPELLATE AUTHORITY THAT ASSESSING OFFICER DID NOT GIVE ANY OPPORTUNITY TO FILE THE DETAILS OF DONORS AND ACCOR DINGLY THE ASSESSEE HAS FILED ADDITIONAL EVIDENCE BEFORE THE L D. CIT (A) GIVING THE ENTIRE LIST OF THE DONORS AND ALSO POINT ED OUT THAT IT HAD MAINTAINED THE RECORDS GIVING PARTICULARS OF ID ENTITY, INDICATING THE NAME AND ADDRESS OF THE PERSON MAKIN G SUCH CONTRIBUTION. NOT ONLY THAT, AFFIDAVITS OF THOSE DO NORS WERE ALSO FILED WHICH IS ALSO PART OF THE PAPER BOOK. ON CE, ALL THESE DETAILS HAVE BEEN FILED BEFORE THE APPELLATE AUTHOR ITY AND ALSO THE REASONS HAVE BEEN GIVEN AS TO WHY THE SAME HAS NOT BEEN FILED BEFORE THE ASSESSING OFFICER, THEN ALSO TILL THREE ROUNDS OF PROCEEDINGS, NONE OF THE APPELLATE AUTHORITIES HAVE DEALT AND ADJUDICATED THIS ISSUE ON MERITS. IF ANY EVIDENCE H AS BEEN FILED WHICH GOES TO THE VERY ROOT OF THE ISSUE, THE N IT IS INCUMBENT UPON THE APPELLATE AUTHORITIES TO EXAMINE THESE DETAILS HIMSELF OR BY CALLING THE REMAND REPORT FRO M THE ASSESSING OFFICER. THUS, APPROACH OF THE LD. CIT (A ) IN ALL THE THREE ROUNDS UNDER THE FACTS AND CIRCUMSTANCES OF T HE CASE CANNOT BE APPRECIATED. BEFORE TAXING ANY DONATION W HICH IS I.T.A. NO.4165/DEL/2018 12 TAXED U/S.115BC AS AN ANONYMOUS DONATION, THE MAIN CONDITION AS GIVEN IN SUB SECTION (3) WHICH DEFINES THE ANONYMOUS DONATION AS; WHERE THE PERSON RECEIVING S UCH CONTRIBUTION DOES NOT MAINTAIN THE RECORD OF IDENTI TY, INDICATING THE NAME AND ADDRESS OF THE PERSON MAKIN G SUCH CONTRIBUTION THEN ONLY SUCH AN ANONYMOUS DONATION I S TAXABLE @ 30%. HERE, IN THIS CASE, ASSESSEE HAS NOT ONLY FILED THE DETAILS OF THE DONORS BUT HAS ALSO GIVEN THE EN TIRE RECORD INCLUDING THEIR SWORN AFFIDAVITS, DISCLOSING THEIR IDENTITY BY INDICATING THE NAME AND ADDRESS OF THE PERSON MAKIN G THE CONTRIBUTION, THEREFORE, SUCH A DONATION TOWARDS CO RPUS FUND CANNOT BE HELD TO BE ANONYMOUS DONATION TO BE TAXED U/S.115BBC. IT IS ONLY WHEN ANY ANONYMOUS DONATION IS TREATED AS INCOME WHEN THERE IS NO DETAILS OR IDENT ITY OF THE DONORS. HERE AS HELD ABOVE, IS NOT THE CASE. ACCORD INGLY, WE HOLD THAT SUCH A CORPUS DONATION CANNOT BE TAXED U/S.115BBC AND THE SAME IS DIRECTED TO BE DELETED. 17. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 22 ND FEBRUARY, 2019. SD/- [AMIT SHUKLA] JUDICIAL MEMBER DATED: 22 ND FEBRUARY, 2019 PKK