Asstt. Commissioner of Income Tax-I, Kanpur V. M/s Sahyog Jan Kalyan Samiti, Kanpur

ITA 568/LKW/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 75129 (ITAT-LUCKNOW)
• Duration Of Justice: 5 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-01-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 18-12-2013
• Assessment Year: 2002-2003
• Appeal Filed On: 18-07-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained investment; Charitable institution; Difference of opinion; Change of opinion
• Section: 12A; 12AA; 68; 69; 2; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL LUCKN BENCH B : LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A. K. GARODIA , ACCOUNTANT MEMBER I.T.A. NO S . 568 TO 572 /LKW/201 3 A.YRS.:2002 - 03 TO 2006 - 07 A.C.I.T. - 1, VS. M/S SAHYOG JAN KALYAN SAMITI, KANPUR. 122/619, SHASTRI NAGAR, KANPUR. PAN:AABAS0743G (APPELLANT) (RESPONDENT) I.T.A. NO . 607 & 608 /LKW/201 3 A.Y.:2007 - 08 & 2008 - 09 M/S SAHYOG JAN KALYAN SAMITI, VS. A.C.I.T. - 1, 122/619, SHASTRI NAGAR, KANPUR. KANPUR. PAN:AABAS0743G (APPELLANT) (RESPONDENT) REVENUE BY : SHRI RAJIV JAIN, CIT, D.R. ASSESSEE BY : SHRI RAKESH GARG, ADVOCATE DATE OF HEARING : 18 / 12 /2013 DATE OF PRONOUNCEMENT : 07/01/2014 ORDER PER SUNIL KUMAR YADAV: THESE APPEALS ARE PREFERRED BY THE REVENUE AS WELL AS BY THE ASSESSEE AGAINST THE RESPECTIVE ORDERS OF CIT(A). I.T.A. NO.568 TO 572 ARE THE APPEALS FILED BY THE REVENUE AGAINST THE RESPECTIVE ORDERS ON COMMON GROUNDS WITH REGARD TO THE ADDITIONS MADE U/S 68 OF THE ACT (HEREINAFTER REFERRED TO AS THE ACT) ON ACCOUNT OF UNEXPLAINED CORPUS DONATIONS AND 2 ADDITION U/S 69 OF THE ACT ON ACCOUNT OF UNEXPLAINED INVESTMENT IN THE INSTITUTE BUILDING ON D.V.O.S REPORT. BESIDES SOME OTHER GROUNDS ARE ALSO RAISED I N I.T.A. NO.572/LKW/2013. I.T.A. NO. 607/LKW/2013 AND 608/LKW/2013 ARE PREFERRED BY THE ASSESSEE AGAINST THE RESPECTIVE ORDERS OF THE CIT(A) PERTAINING TO THE ASSESSMENT YEAR 2007 - 08 AND 2008 - 2009. SINCE THE APPEALS WERE HEARD TOGETHER, THESE ARE BEING DIS POSED OF THROUGH THIS CONSOLIDATED ORDER. WE HOWEVER, TAKE UP THESE APPEALS ONE AFTER THE OTHER. I.T.A. NO.568/LKW/2013 TO 572/LKW/2013 2. THESE APPEALS ARE PREFERRED BY THE REVENUE AGAINST THE ORDER OF CIT(A) EITHER ON ONE GROUND RELATING TO ADDITION U /S 68 OF THE ACT ON ACCOUNT OF UNEXPLAINED CORPUS DONATION OR ON BOTH THE GROUNDS I.E. ADDITIONS U/S 68 ON ACCOUNT OF CORPUS DONATION AND ADDITION U/S 69 OF THE ACT ON ACCOUNT OF UNEXPLAINED INVESTMENT IN THE SCHOOL BUILDING ON ACCOUNT OF D.V.O.S REPORT. 3. DURING THE COURSE OF HEARING OF THE APPEALS, OUR ATTENTION WAS INVITED TO THE FACT THAT THE ASSESSMENT WAS REOPENED ON THE BASIS OF THE SURVEY REPORT AND DENIAL OF REGISTRATION U/S 12AA BY THE CIT THROUGH AN ORDER DATED 17/12/2008 PASSED U/S 12AA(3) OF THE ACT. THIS CANCELLATION ORDER WAS CHALLENGED BEFORE THE TRIBUNAL AND THE TRIBUNAL VIDE ITS ORDER DATED 03/06/2009 CANCELLED THE ORDER OF CIT DATED17/12/2008 PASSED U/S 12A(3) OF THE ACT. AGAINST THE ORDER OF THE TRIBUNAL, THOUGH THE REVENUE HAS PREFE RRED AN APPEAL BUT SINCE THE ORDER OF THE TRIBUNAL HAS NOT BEEN REVERSED SO FAR, IT HOLDS FIELD AND THE ASSESSEE IS ELIGIBLE FOR EXEMPTION U/S 11 OF THE ACT. WHILE FRAMING THE REASSESSMENT, THE ASSESSING OFFICER HAS MADE AN ADDITION U/S 68 OF THE ACT ON A CCOUNT OF CORPUS DONATION HAVING 3 OBSERVED THAT THE DETAILS OF DONORS WITH REGARD TO THE CORPUS WAS NOT PRODUCED BEFORE THE ASSESSING OFFICER. OTHER ADDITION WAS ALSO MADE IN SOME OF THE ASSESSMENT YEARS ON ACCOUNT OF UNEXPLAINED INVESTMENT IN THE SCHOOL B UILDING U/S 69 OF THE ACT. 4. THE ASSESSEE HAS PREFERRED AN APPEAL BEFORE THE CIT(A) CHALLENGING THE VALIDITY OF THE REOPENING OF THE ASSESSMENT BESIDES ASSAILING THE ADDITION ON MERIT. THE CONTENTION OF THE ASSESSEE SINCE THE BASIS ON WHICH THE REOPENING WAS MADE HAVE BEEN ERODED BY REVERSING THE CANCELLATION ORDER OF CIT BY THE TRIBUNAL, THE REOPENING IS NOT VALID. SO FAR AS SURVEY PROCEEDINGS ARE CONCERNED, IT WAS CONTENDED THAT THE ASSESSEE HAS FURNISHED ALL THE INFORMATIO N BEFORE THE ASSESSING OFFICER, THEREFORE, THE REOPENING WAS DONE ON ACCOUNT OF CHANGE OF OPINION. THE CIT(A) WAS NOT CONVINCED WITH THE CONTENTION OF THE ASSESSEE AND HELD THE REOPENING TO BE VALID. BUT ON MERIT, THE CIT(A) WAS CONVINCED WITH THE CONTE NTION OF THE ASSESSEE AND HAS DELETED THE ADDITIONS ON BOTH COUNTS. WITH REGARD TO ADDITION MADE U/S 68 ON ACCOUNT OF UNEXPLAINED CORPUS DONATION, THE CIT(A) HAS PLACED THE RELIANCE UPON ITS ORDER FOR THE ASSESSMENT YEAR 2005 - 06 IN WHICH UNDER SIMILAR CIR CUMSTANCES, THE ADDITIONS MADE U/S 68 OF THE ACT WERE DELETED. WITH REGARD TO ADDITION MADE U/S 69 OF THE ACT, THE CIT(A) HAS OBSERVED THAT THE REFERENCE TO D.V.O. WAS MADE WITHOUT REJECTING THE BOOKS OF ACCOUNT, THEREFORE, REFERENCE WAS NOT VALID AND ADD ITION MADE ON D.V.O.S REPORT ARE NOT SUSTAINABLE IN THE EYES OF LAW. 5. AGGRIEVED, THE REVENUE HAS PREFERRED APPEAL BEFORE THE TRIBUNAL AND PLACED HEAVY RELIANCE UPON THE ORDER OF THE ASSESSING OFFICER. THE LEARNED COUNSEL FOR THE ASSESSEE CHALLENGED TH E VALIDITY OF THE REOPENING 4 OF THE ASSESSMENT , TAKING RECOURSE TO RULE 27 OF THE I.T.A.T., RULES ON THE GROUND THAT REOPENING WAS DONE MAINLY ON THE BASIS OF THE CANCELLATION OF ORDER OF THE CIT U/S 12AA(3) AND SINCE THE SAID ORDER WAS REVERSED BY THE TRIB UNAL AND REGISTRATION U/S 12AA WAS GRANTED TO THE ASSESSEE, THE REOPENING OF THE ASSESSMENT BECOMES INVALID. ON MERIT, THE LEARNED COUNSEL FOR THE ASSESSEE HAS CONTENDED THAT THE ISSUE WITH REGARD TO THE ADDITION U/S 68 ON ACCOUNT OF UNEXPLAINED CORPUS DO NATION IS COVERED BY THE ORDER OF THE TRIBUNAL FOR THE ASSESSMENT YEAR 2005 - 06 AND THE JUDGMENT OF HON'BLE JURISDICTIONAL HIGH COURT IN WHICH THE TRIBUNAL HAS CATEGORICALLY HELD THAT ONCE A PARTICULAR CREDIT OR DONATION IS ALREADY DECLARED BY THE ASSESSEE, THE SAME CANNOT BE ADDED AGAIN. THIS VIEW WAS APPROVED BY HON'BLE JURISDICTIONAL HIGH COURT IN INCOME TAX APPEAL 276 OF 2009. COPY OF THE ORDER S ARE PLACED ON RECORD. WITH REGARD TO OTHER GROUNDS ON UNEXPLAINED INVESTMENT IN SCHOOL BUILDING, IT WAS CO NTENDED THAT THE REFERENCE TO D.V.O. WAS MADE WITHOUT REJECTING THE BOOKS OF ACCOUNT OF THE ASSESSEE, THEREFORE, THE REFERENCE TO D.V.O. IS NOT VALID IN TERMS OF JUDGMENT OF HON'BLE APEX COURT IN THE CASE OF SARGAM CINEMA VS COMMISSIONER OF INCOME - TAX [201 0] 328 ITR 513 (SC) . THUS, THE D.V.O.S REPORT CANNOT BE USED FOR MAKING ADDITION ON ACCOUNT OF UNEXPLAINED INVESTMENT U/S 69 OF THE ACT. 6. HAVING CAREFULLY EXAMINED THE ORDERS OF THE LOWER AUTHORITIES IN THE LIGHT OF THE RIVAL SUBMISSIONS AND THE JUDGM ENTS REFERRED TO BY THE PARTIES , WE FIND THAT THE ASSESSEE HAS SOME FORCE IN HIS ARGUMENTS ON MERIT. THE ISSUE OF ADDITION U/S 68 OF THE ACT ON ACCOUNT OF CORPUS DONATION IS SQUARELY COVERED BY THE ORDER OF THE TRIBUNAL PERTAINING TO ASSESSMENT YEAR 2005 - 06 IN WHICH CORPUS DONATION WAS INTRODUCED UNDER SIMILAR CIRCUMSTANCES AND THE TRIBUNAL HAS DELETED THE ADDITIONS HAVING OBSERVED 5 THAT ONCE A PARTICULAR CREDIT OR DONATION IS ALREADY DECLARED BY THE ASSESSEE, THE SAME CANNOT BE ADDED AGAIN. THE RELEVANT O BSERVATION OF THE TRIBUNAL ARE EXTRACTED HEREUNDER: 19. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. IN OUR CONSIDERED VIEW, THE ADDITION IN RESPECT OF DONATIONS OF RS.1,13,00,308/ - , ADDITION OF RS.1,00,000/ - , ADDITION OF RS.46,71,371/ - AND ADDITION OF RS.8,35,000/ - CANNOT BE SUSTAINED AGAIN ONCE IT HAS BEEN DECLARED BY THE SOCIETY AS INCOME/RECEIPT. NO DOUBLE ADDITION IS CALLED FOR. EVEN IF A PARTICULAR DONATION OR CREDIT CANNOT BE PROVED AND THE ASSESSEE AT THE TIME OF FI LING OF THE RETURN DECLARED THE SAME AS ITS INCOME AND FURTHER ADDITION U/S 68 OF SUCH AMOUNT CANNOT BE MADE. IN THIS REGARD, WE REFER TO THE DECISION OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF DIT EXEMPTION VS KESHAV SOCIAL CHARITABLE FOUNDATION, 278 ITR 152 (SUPRA), WHEREIN IT IS HELD AS UNDER: 'THE ASSESSEE WAS A CHARITABLE TRUST PROVIDING MEDICAL ADVICE FOR NEEDY PEOPLE IN VARIOUS PARTS AND REMOTE VILLAGES OF UTTAR PRADESH. IT WAS REGISTERED UNDER SECTION 12A OF THE INCOME - TAX ACT, 1961. FOR THE ASSESSMENT YEAR 1991 - 92, THE ASSESSEE CLAIMED BENEFIT UNDER SECTION 11 OF THE ACT FOR THE DONATIONS IT RECEIVED DURING THE RELEVANT PREVIOUS YEAR. THE ASSESSEE HAD FURNISHED THE LIST OF DONORS. THE ASSESSING OFFICER DISALLOWED THE CLAIM STATING THAT THE AS SESSEE COULD NOT FURNISH DETAILS REGARDING THE DONORS AND THAT IT WAS JUST A WAY OF INTRODUCING UNACCOUNTED MONEY INTO THE BOOKS OF THE ASSESSEE TRUST AND THUS TREATED THE AMOUNT AS CASH CREDIT UNDER SECTION 68 OF THE ACT. THE TRIBUNAL HELD THAT SINCE MORE THAN 75 PER CENT, OF THE DONATIONS RECEIVED BY THE ASSESSEE WAS SPENT FOR CHARITABLE PURPOSES, THE ADDITION WAS NOT JUSTIFIED. ON APPEAL TO THE HIGH COURT : HELD, DISMISSING THE APPEAL, THAT TO OBTAIN BENEFIT OF THE EXEMPTION UNDER SECTION 11 OF THE ACT, THE ASSESSEE WAS REQUIRED TO SHOW THAT THE DONATION WAS VOLUNTARY. 6 IN THE .PRESENT CASE, THE ASSESSEE HAD NOT ONLY DISCLOSED ITS DONATIONS, BUT HAD ALSO SUBMITTED A LIST OF DONORS. THE FACT THAT THE COMPLETE LIST OF DONORS HAD NOT BEEN FILED OR THAT THE D ONORS HAD NOT BEEN PRODUCED DID NOT NECESSARILY LEAD TO THE INFERENCE THAT THE ASSESSEE HAD TRIED TO INTRODUCE UNACCOUNTED MONEY BY WAY OF DONATION RECEIPTS, THIS WAS SHOWN IN THE FACTS OF THE CASE, WHERE ADMITTEDLY 75% OF THE DONATIONS WERE APPLIED FOR CH ARITABLE PURPOSES. SECTION 68 OF THE ACT HAD NO APPLICATION TO THE FACTS OF THE CASE BECAUSE THE ASSESSEE HAD IN FACT DISCLOSED THE DONATIONS OF RS.18,24,200/ - AS ITS INCOME AND IT COULD NOT BE DISPUTED THAT ALL RECEIPTS, OTHER THAN CORPUS DONATIONS WOULD BE INCOME IN THE HANDS OF THE ASSESSEE. THERE WAS THUS FULL DISCLOSURE OF INCOME BY THE ASSESSEE AND ALSO APPLICATION OF THE DONATIONS FOR CHARITABLE PURPOSES. IT WAS NOT IN DISPUTE THAT THE OBJECTS AND ACTIVITIES OF THE ASSESSEE WERE CHARITABLE IN NATURE SINCE IT WAS DULY REGISTERED UNDER THE PROVISIONS OF SECTION 12A. 20. SIMILARLY, THE HON'BLE AP HIGH COURT IN THE CASE OF CIT VS. HYDERABAD SECUNDERABAD FOODGRAINS ASSOCIATION LTD, 175 ITR 574 (SUPRA) HAS HELD AS UNDER: 'THE INCOME - TAX OFFICER DENIED EXE MPTION TO THE ASSESSEE UNDER SECTION 11 OF THE INCOME - TAX ACT, 1961, FOR THE ASSESSMENT YEAR 1977 - 78. ON APPEAL, THE COMMISSIONER OF INCOME - TAX (APPEALS) HELD THAT THE ASSESSEE WAS A PUBLIC CHARITABLE INSTITUTION AND SET ASIDE THE ASSESSMENT WITH A DIRECT ION TO THE INCOME - TAX OFFICER TO CONSIDER WHETHER THE ASSESSEE SATISFIED THE REQUIREMENTS OF SECTIONS 12, 12A AND 13 OF THE INCOME - TAX ACT, 1961. THE TRIBUNAL HELD THAT THE COMMISSIONER OF INCOME - TAX (APPEALS) OUGHT NOT TO HAVE GIVEN THE DIRECTION. ON A REFERENCE: HELD, (I) THAT THE PROVISIONS CONTAINED IN SECTION 11 CONCERNING THE EXEMPTION OF A PUBLIC CHARITABLE INSTITUTION DO NOT TAKE AUTOMATIC EFFECT. THEY TAKE EFFECT SUBJECT TO THE FULFILLMENT OF THE CONDITIONS 7 SPECIFIED IN THE OTHER PROVISIONS SU CH AS SECTIONS 12, 12A AND 13 OF THE ACT. THE INCOME - TAX OFFICER DID NOT GO INTO THESE ASPECTS BECAUSE HE REFUSED THE ASSESSEE'S CLAIM UNDER SECTION 11. BUT ONCE THE COMMISSIONER OF INCOME - TAX (APPEALS) HELD THAT THE ASSESSEE WAS A PUBLIC CHARITABLE INSTIT UTION, IT WAS NECESSARY TO EXAMINE WHETHER THE CONDITIONS SPECIFIED FOR EXEMPTION IN SECTIONS 12, 12A AND 13 WERE FULFILLED. THE COMMISSIONER OF INCOME - TAX (APPEALS) WAS JUSTIFIED IN ISSUING THE DIRECTION TO THE INCOME - TAX OFFICER TO DO SO; (II) THAT THE TRIBUNAL WAS UNDER AN OBLIGATION TO CONSIDER AL L THE PLEAS RAISED IN THE APPEAL. 21. THE HON'BLE SUPREME COURT IN THE CASE OF PROGRAM FOR COMMUNITY ORGANISATION, 248 ITR 01, HAS HELD THAT WHERE TRUST RECEIVED DONATIONS AND APPLIED FOR CHARITABLE PURPOSES THEN ASSESSEE IS ENTITLED TO ACCUMULATE 25% OF SUCH DONATION RECEIVED. IN THE CASE OF DIT (EXEMPTION) VS BHARAT KALYAN PRATISHTHAN, 257 ITR 609( DELHI), IT WAS HELD THAT WHEN DONATION RECEIVED IN EARLIER YEARS BY THE TRUST WERE ACCEPTED AS APPLIED FOR CHAR ITABLE PURPOSES THEN THERE IS NO REASON TO HOLD DIFFERENTLY IN THE CURRENT YEAR . 22. THUS, ONCE A PARTICULAR CREDIT OR DONATION IS ALREADY DECLARED BY THE ASSESSEE, THE SAME CANNOT BE ADDED AGAIN. SINCE THE FACTS OF RECEIPT OF THESE AMOUNTS HAVING BEEN DECLARED AS INCOME/RECEIPT BY THE ASSESSEE ARE NOT IN DISPUTE, WE UPHOLD THE ORDER OF THE L D. CIT(A) IN DELETING THE ADDITION IN RESPECT OF THESE AMOUNTS. THIS DISPOSES OF GROUNDS OF REVENUE RELATING TO ADDITIONS OF RS.1,13,00,038/ - , RS.1,00,000/ - , RS.8, 35,000 / - AND RS.46,71,371/ - . 6.1 TH E VIEW TAKEN BY THE TRIBUNAL WAS CONFIRMED BY HON'BLE JURISDICTIONAL HIGH COURT IN INCOME - TAX APPEAL NOO.267/2009. COPY OF THE JUDGMENT IS PLACED ON RECORD. SINCE THE TRIBUNAL HAS TAKEN A PARTICULAR VIEW IN SIMILAR S ET OF FACTS, WE FIND NO REASON TO TAKE A CONTRARY VIEW IN THESE APPEALS. MOREOVER, THE CIT(A) HAS PROPERLY ADJUDICATED THE ISSUE IN 8 THE LIGHT OF VARIOUS JUDICIAL PRONOUNCEMENTS AND WE FIND NO INFIRMITY THEREIN. WE, THEREFORE, CONFIRM HIS ORDER IN THIS RE GARD. 6.2 SO FAR AS THE ADDITION ON ACCOUNT OF UNEXPLAINED INVESTMENT IN THE SCHOOL BUILDING U/S 69 IS CONCERNED, UNDISPUTEDLY THE REFERENCE TO D.V.O. WAS MADE WITHOUT REJECTING THE BOOKS OF ACCOUNT OF THE ASSESSEE, THEREFORE, IN THE LIGHT OF JUDGMENT OF HON'BLE APEX COURT IN THE CASE OF SARGAM CINEMA (SUPRA), THE D.V.O.S REPORT CANNOT BE RELIED FOR DETERMINING THE COST OF INVESTMENT IN THE PROPERTY. IN THE CASE OF SARGAM CINEMA (SUPRA), THEIR LORDSHIPS HAVE CATEGORICALLY HELD THAT THE ASSESSING AUTHORIT Y COULD NOT HAVE REFERRED THE MATTER TO D.V.O. WITHOUT REJECTING THE BOOKS OF ACCOUNT AND, THEREFORE, RELIANCE PLACED ON THE REPORT OF THE D.V.O. WAS MISCONCEIVED. IN THE LIGHT OF THE AFORESAID JUDGMENT, WE ARE OF THE VIEW THAT THE CIT(A) HAS RIGHTLY DELE TED THE ADDITION U/S 69 OF THE ACT MADE ON THE BASIS OF D.V.O.S REPORT. WE ACCORDINGLY CONFIRM THE ORDER OF CIT(A). SINCE THE ASSESSEE GOT RELIEF ON MERIT IN BOTH THE YEARS, WE DO NOT FIND ANY JUSTIFICATION TO ENTER INTO CONTROVERSY WITH REGARD TO THE V ALIDITY OF THE REOPENING OF THE ASSESSMENT. I.T.A. NO.607/LKW/2013 & 608/LKW/2013 7. THESE APPEALS ARE PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) ON COMMON GROUNDS I.E. WITH REGARD TO THE ADDITION MADE U/S 68 OF THE ACT. WE, HOWEVER, FOR THE SAKE OF REFERENCE, EXTRACT GROUNDS RAISED IN APPEAL NO.607/LKW/2013 AS UNDER: 1. BECAUSE THE CIT(A) HAS ERRED ON FACTS AND IN LAW IN UPHOLDING THE ADDITION OF RS.26,13,080/ - MADE BY THE ASSESSING OFFICER BY APPLYING THE PROVISIONS OF SECTION 9 68 OF THE A CT, WHICH ADDITION IS CONTRARY TO FACTS, BAD IN LAW FOR THE REASON THAT THE PROVISIONS OF SECTION 68 ARE NOT APPLICABLE TO THE FACTS OF THE INSTANT CASE. 2. BECAUSE ON A PROPER CONSIDERATION OF FACTS AND CIRCUMSTANCES OF THE CASE, IT WOULD BE FOUND THAT T HE ADDITION OF RS.26,13,080/ - RECEIVED ON ACCOUNT OF CORPUS DONATION, IS NOT 'ANONYMOUS' DONATION IN TERMS OF SECTION 115BBC(3) AS DEFINED THEREIN. THE ADDITION MADE IS CONTRARY TO THE PROVISIONS OF LAW BE DELETED. 3. BECAUSE ON A PROPER CONSIDERATION O F FACTS SPECIALLY READ WITH SECTION 115HBC(3), IT HAS NOWHERE BEEN HELD BOTH BY THE CIT/AO THAT THE RELEVANT RECORDS NECESSARY FOR THE PURPOSES OF DONATIONS RECEIVED, HAVE NOT BEEN MAINTAINED, THE ADDITION BE DELETED. 4. BECAUSE THE CIT(A) HIMSELF AND AO HAVE NOT MADE ANY ENQUIRY WITH RESPECT TO THE CORPUS DONATIONS RECEIVED AND AS SUCH, THE CIT(A) HAS ERRED IN UPHOLDING THE FINDING OF THE ASSESSING OFFICER ON ACCOUNT OF VERIFICATION, IT WAS FOUND THAT THE IDENTITY OF THE DONORS HAS NOT BEEN PROVED, WHICH FINDING IS CONTRARY TO FACTS, THE ADDITION BASED ON SUCH FINDING BE DELETED. 5. BECAUSE THE CIT(A) HAS FAILED TO APPRECIATE THAT NOWHERE IN THE ENTIRE SEC T ION 115BBC IT HAS BEEN LAID DOWN THAT THE RECIPIENT OF CORPUS DONATION HAS TO 'PROVE' THE IDENTITY OF THE PERSON MAKING THE DONATION, THE SECTION 2 SIMPLICITER SAYS IS TO MAINTAIN RECORDS ONLY REGARDING THE DONATIONS RECEIVED. 6. BECAUSE THE ADDITION OF RS,26,13,080 / - HAS BEEN MADE BY THE ASSESSING OFFICER BY APPLYI NG SECTION 68, WHEREAS IT HAS BE EN UPHELD BY THE CIT(A) BY APPLYING SECTION 115BBC, THE FACTUAL AS WELL AS THE LEGAL MATRIX OF BOTH THE PROVISIONS BEING ENTIRELY DIFFERENT, SUCH ADDITION BEING UPHELD BY THE CIT(A) ON AN ENTIRELY DIFFERENT FINDING AS THAT O F THE AO WITHOUT, GIVING THE 10 ASSESSEE AN OPPORTUNITY I S CONTRARY TO THE PROVISIONS OF LAW WITHOUT JURISDICTION AND BE DELETED. 7. BECAUSE IN ANY CASE AND IN ALL THE CIRCUMSTANCES OF THE CASE THE ADDITION OF RS.26,13,080 / - IS CONTRARY TO FACTS BAD IN LAW AND BE DELETED. 8. IN BOTH THESE APPEALS, WE FIND THAT WHILE MAKING ADDITION U/S 68 OF THE ACT ON ACCOUNT OF UNEXPLAINED CORPUS DONATION, THE REVENUE AUTHORITIES HAVE ALSO APPLIED THE PROVISION OF SECTION 115B B C OF THE ACT, ACCORDING TO WHICH THE UNANIMOUS DONATION RECEIVED BY THE TRUST IS TAXABLE AS PER THE FORMULA LAID DOWN UNDER THAT SECTION. THE LEARNED COUNSEL FOR THE ASSESSEE HAS INVITED OUR ATTENTION DURING THE COURSE OF HEARING OF THE APPEAL THAT PROVISION OF SECTION 115BBC WAS BROUGHT ON THE STATUTE BY FINANCE ACT, 2006 WITH EFFECT FROM 01/04/2007, THEREFORE, IT WOULD ONLY APPLY FOR THE ASSESSMENT YEAR 2008 - 09 AND NOT FROM THE ASSESSMENT YEAR 2007 - 08. THEREFORE, THE ISSUE OF ADDITION MADE U/S 68 OF THE ACT RELATING TO ASSESSMENT YEAR 2007 - 08 IS SQUARELY COVERED BY THE JUDGMENT OF THE TRIBUNAL AND ALSO OF THE HON'BLE HIGH COURT BY WHICH ADDITION MADE WAS DELETED. WITH REGARD TO THE ADDITION MADE U/S 68 DURING ASSESSMENT YEAR 2008 - 09, THE LEARNED COUNSEL FOR THE ASSESSEE HAS INVITED OUR AT TENTION TO SUB SECTION (3) OF SECTION 115BBC, ACCORDING TO WHICH THE UNANIMOUS DONATION MEANS ANY VOLUNTARY CONTRIBUTION REFERRED TO IN SUB SECTION (IIA) OF CLAUSE 24 OF SECTION 2 WHERE A PERSON RECEIVING SUCH CONTRIBUTION DOES NOT MAINTAIN A RECORD OF THE PROPERTY INDICATING THE NAME AND ADDRESS OF THE PERSON MAKING SUCH CONTRIBUTION AND THE ADDRESS AS MADE BE PRESCRIBED. THE LEARNED COUNSEL FOR THE ASSESSEE FURTHER CONTENDED THAT ASSESSEE HAS MAINTAINED THE COMPLETE DETAILS OF DONORS BUT IT WAS SIMPLY AD DED ON ACCOUNT OF NON FILING OF THE CONFIRMATION LETTERS OF THE DONORS. THEREFORE, THE DONATION RECEIVED BY THE ASSESSEE CANNOT BE CALLED TO BE 11 UNANIMOUS DONATION FOR THE PURPOSE OF SECTION 115BBC OF THE ACT. IN SUPPORT OF HIS CONTENTION, THE LEARNED COU NSEL FOR THE ASSESSEE HAS INVITED OUR ATTENTION TO THE ORDERS OF THE LOWER AUTHORITIES THAT BEFORE THE LOWER AUTHORITIES, COMPLETE DETAIL S OF THE DONORS WERE FURNISHED, THEREFORE, ON ACCOUNT OF NON FURNISHING OF CONFIRMATION LETTERS, THE DONATION CANNOT CA LLED UNANIMOUS DONATION FOR 115BC OF THE ACT. 9. LEARNED D.R., ON THE OTHER HAND, HEAVILY PLACED RELIANCE ON THE ORDERS OF THE LOWER AUTHORITIES. 10. HAVING CAREFULLY EXAMINED THE ORDERS OF THE LOWER AUTHORITIES AND THE RELEVANT PROVISIONS OF THE ACT, WE FIND THAT AFTER INTRODUCTION OF SECTION 115BBC, THE UNANIMOUS DONATION RECEIVED BY THE ASSESSEE IS ALSO TAXABLE IN THE HANDS OF THE RECIPIENT TRUST. THE UNANIMOUS DONATION HAS ALSO BEEN DEFINED IN SUB SECTION (3) OF SECTION 115BBC OF THE ACT. FOR THE SA KE O F REFERENCE, WE EXTRACT SECTION 115BBC OF THE ACT AS UNDER: 115BBC. ANONYMOUS DONATIONS TO BE TAXED IN CERTAIN CASES. (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 ON THE INCOME BY WAY OF ANY ANONYMOUS DONATION, AT THE RATE OF THIRTY PER CENT. ; AND 12 (II) THE AMOUNT OF INCOME - TAX WITH WHICH THE ASSESSEE WOULD HAVE BEEN CHARGEABLE HAD HIS TOTAL INCOME BEEN REDUCED BY THE AMOUNT OF INCOME REFERRED TO IN CLAUSE (I). (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 CHARITAB LE 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 T HIS 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 PER SON MAKING SUCH CONTRIBUTION AND SUCH OTHER PARTICULARS AS MAY BE PRESCRIBED. 10.1 AS PER SUB SECTION (3), UNANIMOUS DONATION ARE THOSE DONATIONS FOR WHICH NO DETAILS OF DONORS ARE MAINTAINED BY THE ASSESSEE. IF THE DETAILS ARE MAINTAINED, THE DONATIONS CANNOT BE CALLED UNANIMOUS DONATION AND PROVISIONS OF SECTION 115BBC CANNOT BE INVOKED. IN THE INSTANT CASE, UNDISPUTEDLY, THE DETAILS WERE MAINTAINED BY THE ASSESSEE BUT THE ADDITION WAS MADE ON ACCOUNT OF NON FURNISHING THE CONFIRMATION LETTERS. WE AR E OF THE CONSIDERED VIEW THAT ONLY THOSE DONATIONS CAN BE CALLED UNANIMOUS FOR WHICH DETAILS ARE NOT MAINTAINED. IF IT IS PROPERLY MAINTAINED, IT CANNOT BE CALLED UNANIMOUS DONATION. SINCE THE ASSESSEE HAS MAINTAINED THE DETAILS OF DONORS, THE DONATIONS CANNOT BE CALLED UNANIMOUS DONATION AND PROVISION OF SECTION 115BBC CANNOT BE INVOKED IN THE GIVEN FACTS AND 13 CIRCUMSTANCES OF THE CASE. IF PROVISION OF SECTION 115BBC CANNOT BE INVOKED, THE ADDITION MADE U/S 68 ARE TO BE DELETED IN THE LIGHT OF THE ORDER OF THE TRIBUNAL IN ASSESSEES CASE FOR ASSESSMENT YEAR 2005 - 06 AND THE JUDGMENT OF HON'BLE HIGH COURT IN WHICH UNDER THE IDENTICAL FACTS, THE ADDITIONS MADE BY THE REVENUE U/S 68 ON ACCOUNT OF UNEXPLAINED CORPUS DONATION WERE DELETED. WE ACCORDINGLY SET A SIDE THE ORDER OF CIT(A) AND DELETE THE ADDITION. 11. IN THE RESULT, THE APPEALS OF THE REVENUE ARE DISMISSED AND THE APPEAL OF THE ASSESSEE IS ALLOWED. (ORDER PRONOUNCED IN THE OPEN COURT ON 07/01/2014 ) SD/. SD/. (A. K. GARODIA) (SUNIL KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 07/01/2014 *CL SINGH COPY FORWARDED TO THE: 1. APPELLANT. 2. RESPONDENT. 3. CIT (A) 4. CIT 5. DR. ASSISTANT REGISTRAR