Shri Neminath Jain Brahamcharya Asharam, Nashik V. Assistant Commissioner of Income-tax,

ITA 470/PUN/2015

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 7669 (ITAT-PUNE)
• Duration Of Justice: 3 year(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-04-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 17-04-2018
• Assessment Year: 2007-2008
• Appeal Filed On: 15-04-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Unexplained expenditure; Search and seizure; Document seized
• Section: 69C; 132; 12; 10; 11; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, PUN E . , , ! , ' # BEFORE SHRI D. KARUNAKARA RAO, AM AND SHRI VIKAS AW ASTHY, JM . / ITA NO. 470/PUN/2015 '% & '& / ASSESSMENT YEAR : 2007-08 SHRI NEMINATH JAIN BRAHAMCHARYA ASHARAM, AT POST NEMINAGAR, CHANDWAD, DIST.-NASHIK, PIN-423 501 PAN : AABTS8423J .... / APPELLANT (% / V/S. THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-3, MALEGAON. / RESPONDENT ASSESSEE BY : SHRI ABHAY AVCHAT REVENUE BY : SHRI AJAY MODI / DATE OF HEARING : 17.04.2018 / DATE OF PRONOUNCEMENT : 18.04.2018 ) / ORDER PER VIKAS AWASTHY, JM THIS APPEAL BY ASSESSEE IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEAL)-3, NASHIK DATED 27.02.2015 FOR THE A SSESSMENT YEAR 2007-08. 2 ITA NO.470 /PUN/2015 A.Y.2007-08 2. THE ASSESSEE IN APPEAL HAS ASSAILED THE ADDITION OF RS .29,00,000/- MADE ON THE BASIS OF DOCUMENT SEIZED DURING SEARCH IN TH E CASE OF LODHA GROUP. IN FIRST APPELLATE PROCEEDINGS, THE COMMISSIONER OF I NCOME TAX (APPEAL) CONFIRMED THE ADDITION ALBEIT U/S.115BBC OF THE INCOM E TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). 3. SHRI ABHAY AVCHAT APPEARING ON BEHALF OF ASSESSEE SUB MITTED THAT ASSESSEE IS AN EDUCATION TRUST. THE ASSESSEE FILED ITS RE TURN OF INCOME U/S. 139 OF THE ACT ON 12.12.2007 DECLARING TOTAL INCOME AS NIL . A SEARCH AND SEIZURE ACTION U/S. 132 OF THE ACT WAS CARRIED OUT IN THE CASE OF LODHA GROUP OF MALEGAON ON 12.05.2007. SHRI LODHA WAS ONE OF THE TRUS TEES OF THE ASSESSEE-TRUST. DURING SEARCH, A DOCUMENT WAS SEIZED WH ICH REVEALED THAT RS. 29,00,000/- HAVE BEEN PAID BY ASSESSEE TOWARDS CONS TRUCTION OF BUILDING. THE ASSESSING OFFICER MADE ADDITION OF RS.29,00,000/- ON ACCO UNT OF UNEXPLAINED EXPENDITURE U/S. 69C OF THE ACT. AGGRIEVED BY THE ASSESSMENT ORDER DATED 04.03.2014, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEAL). THE COMMISSIONER OF IN COME TAX (APPEAL) INVOKED THE PROVISIONS OF SECTION 115BBC AND HELD THE AMOUNT OF RS.29,00,000/- AS ANONYMOUS DONATION. 3.1 THE LD. AR FURTHER SUBMITTED THAT ASSESSEE-TRUST HAS BEEN GRANTED EXEMPTION U/S.10(23C) OF THE ACT. DURING THE COURSE OF ASSE SSMENT PROCEEDINGS, THE ASSESSING OFFICER HAS NOT DENIED BENEFIT OF SECTION 10 AND 12 OF THE ACT TO THE ASSESSEE. THE ASSESSING OFFICER MADE AD DITION OF RS.29,00,000/- BY HOLDING IT TO BE AS UNEXPLAINED EXPENDITUR E U/S.69C OF THE ACT. IN FIRST APPELLATE PROCEEDINGS, THE COMMISSIONER OF IN COME TAX (APPEAL) DELETED THE ADDITION ON ACCOUNT OF UNEXPLAINED EXPENDITURE U/S. 69C OF THE ACT AND ADDED THE SAME AS ANONYMOUS DONATIONS U/S. 11 5BBC OF THE ACT. 3 ITA NO.470 /PUN/2015 A.Y.2007-08 THE LD. AR SUBMITTED THAT THE PROVISIONS OF SECTION 115BBC ARE NOT ATTRACTED AND PRAYED FOR SETTING ASIDE THE FINDINGS OF COMMISSIONER OF INCOME TAX (APPEAL) AND ALLOW THE APPEAL OF THE ASSESSEE. 4. ON THE OTHER HAND, SHRI AJAY MODI REPRESENTING THE D EPARTMENT VEHEMENTLY DEFENDED THE FINDINGS OF COMMISSIONER OF INCOME TAX (APPEAL). THE LD. DR SUBMITTED THAT ASSESSEE HAS NOT BEEN ABLE TO SHOW THE SOURCE OF RS.29,00,000/- THAT HAS BEEN UTILIZED BY ASSESSEE TOWARDS CONSTRUCTION OF A BUILDING. THE LD. DR POINTED THAT PROVISIONS OF SECTION 115B BC OF THE ACT HAVE BEEN INSERTED BY FINANCE ACT, 2006 W.E.F. 01.04.2007. TH US, THE ASSESSMENT YEAR UNDER APPEAL IS SQUARELY COVERED BY N EWLY INSERTED PROVISIONS OF SECTION 115BBC OF THE ACT. 5. WE HAVE HEARD THE SUBMISSIONS MADE BY REPRESENTATIV ES OF RIVAL SIDES AND HAVE PERUSED THE ORDERS OF AUTHORITIES BELOW. THE DO CUMENT SEIZED DURING SEARCH ACTION IN THE CASE OF LODHA GROUP INDICATIN G EXPENDITURE OF RS.29,00,000/- IN CASH HAS BEEN OWNED BY THE ASSESSEE. THUS, THERE IS NO DISPUTE THAT THE SEIZED DOCUMENT ON THE BASIS OF WHICH A DDITION HAS BEEN MADE BELONGS TO ASSESSEE. THE COMMISSIONER OF INCOME TA X (APPEAL) VIDE IMPUGNED ORDER HAS MADE ADDITION OF RS.29,00,000/- U/S.115B BC OF THE ACT AS ANONYMOUS DONATIONS. THE ASSESSEE BEFORE AUTHORITIES BELOW HAS FAILED TO EXPLAIN THE SOURCE OF GENERATION OF RS.29,00,000/-. EVEN, BEFO RE US, ASSESSEE HAS NOT BEEN ABLE TO SHOW THE SOURCE OF RS.29,00,000/-. THE LD. AR HAS FAILED TO CONTROVERT THE FINDINGS OF COMMISSIONER OF INCOME TAX (APPEAL). THUS, WE DO NOT FIND ANY INFIRMITY IN THE IMPUGNED ORDER MAK ING ADDITION OF RS.29,00,000/- UNDER THE PROVISIONS OF SECTION 115BBC OF TH E ACT. ACCORDINGLY, THE IMPUGNED ORDER IS UPHELD AND APPEAL OF T HE ASSESSEE IS DISMISSED. 4 ITA NO.470 /PUN/2015 A.Y.2007-08 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED ON WEDNESDAY, THE 18 TH DAY OF APRIL, 2018 SD/- SD/- ( . / D. KARUNAKARA RAO ) ( ! /VIKAS AWASTHY) / ACCOUNTANT MEMBER / JUDICIAL MEMBER / PUNE; !' / DATED : 18 TH APRIL, 2018. SB ) * +',- . ', / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT. 2. / THE RESPONDENT. 3. THE CIT (APPEAL)-3, NASHIK. 4. THE CIT (EXEMPTION), PUNE. 5. %&' () , * () , +,- , / DR, ITAT, A BENCH, PUNE. 6. './ 01 / GUARD FILE. // TRUE COPY // *2 / BY ORDER, 3 (- / PRIVATE SECRETARY * () , / ITAT, PUNE.