Income Tax Officer-(Exeption), Lucknow V. M/s The Himalayan Public School Sewa Sansthan, Lucknow

ITA 665/LKW/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 1781 (ITAT-LUCKNOW)
• Duration Of Justice: 1 year(s) 9 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-08-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 23-08-2018
• Assessment Year: 2012-2013
• Appeal Filed On: 17-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Charitable institution
• Section: 12A

Judgement Text

I.T.A. NO.665/LKW/2016 ASSESSMENT YEAR:2012-13 1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH B, LUCKNOW BEFORE SHRI T. S. KAPOOR, ACCOUNTANT MEMBER AND SHRI PARTHA SARATHI CHAUDHURY, JUDICIAL MEMBER ITA NO.665/LKW/2016 ASSESSMENT YEAR:2012-13 INCOME TAX OFFICER (EXEMPTIONS) LUCKNOW. VS. THE HIMALAYAN PUBLIC SCHOOL SEWA SANSTHAN, B-4, LEKH RAJ MARKET, INDIRA NAGAR, FAIZABAD ROAD, LUCKNOW. PAN:AABAT 4174 A (APPELLANT) (RESPONDENT) O R D E R PER T. S. KAPOOR, A.M. THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF CIT(A)-4, LUCKNOW DATED 28/09/2016. 2. THE ONLY GROUND OF APPEAL TAKEN BY THE REVENUE I S THE ACTION OF LEARNED CIT(A) BY WHICH HE HAS DELETED AN ADDITION OF RS.95 LAKH WHICH THE ASSESSING OFFICER HAD MADE U/S 115BBC OF THE ACT OF ANONYMOUS DONATION. 3. AT THE OUTSET, LEARNED D. R. INVITED OUR ATTENTI ON TO THE ASSESSMENT ORDER AND SUBMITTED THAT ASSESSEE WAS NOT ABLE TO P ROVIDE ADDRESS PROOF OF ALL THE DONORS AS REQUIRED U/S 115BBC(3) AND HENCE THE ASSESSING OFFICER APPELLANT BY SMT. PINKI MAHAWAR, D.R. RESPONDENT BY SHRI ASHISH RAJ SHUKLA, ADVOCATE DATE OF HEARING 23/08/2018 DATE OF PRONOUNCEMENT 31 / 08 /201 8 I.T.A. NO.665/LKW/2016 ASSESSMENT YEAR:2012-13 2 HAD RIGHTLY TREATED THE DONATION AS ANONYMOUS DONAT ION AND THEREFORE, THE LEARNED CIT(A) HAS WRONGLY DELETED THE SAME. 4. LEARNED A. R., ON THE OTHER HAND, INVITED OUR AT TENTION TO THE ASSESSMENT ORDER AT PARA 4 AND SUBMITTED THAT THE A SSESSEE WAS REQUIRED TO FURNISH COMPLETE NAMES AND ADDRESSES OF THESE PERSO NS FROM WHOM DONATION AND VOLUNTARY CONTRIBUTIONS WERE RECEIVED AND ASSESSEE SUBMITTED NAMES AND ADDRESSES OF 1953 PERSONS FROM WHOM THE A SSESSEE HAD RECEIVED DONATIONS ALL OF WHICH WERE OF LESS THAN B ELOW RS.5,000/-. IT WAS SUBMITTED THAT THE ASSESSING OFFICER HAS HIMSELF NO TED THIS FACT IN HIS ORDER. IT WAS SUBMITTED THAT AFTER FILING THE ABOVE INFORM ATION THE ASSESSEE WAS REQUIRED TO FILE ADDRESS PROOF FOR WHICH HE HAD FIL ED FOR A FEW DONORS AND THE ASSESSING OFFICER THEREFORE, TREATED THE ENTIRE DONATION AS ANONYMOUS DONATION BY HOLDING THAT THE ADDRESS PROOF OF ALL T HE DONORS WERE NOT PROVIDED. LEARNED A. R. SUBMITTED THAT THE REQUIRE MENT OF THE SECTION IS THAT THE ASSESSEE HAS TO MAINTAIN AND SUBMIT A COMP LETE LIST ALONG WITH ADDRESSES OF THE PERSONS FROM WHOM DONATIONS WERE R ECEIVED AND FOR WHICH HE HAD ALREADY MADE COMPLIANCE AND THEREFORE, LEARN ED CIT(A) HAS RIGHTLY DELETED THE ADDITION. 5. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE T HROUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT THE ASSESSEE IS REG ISTERED 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 AMOUNT ING TO RS.95 LAKH AND THEREFORE, THE ASSESSEE WAS REQUIRED TO FURNISH COM PLETE NAMES AND ADDRESSES OF THE PERSONS FROM WHOM DONATIONS AND VO LUNTARY CONTRIBUTIONS WERE RECEIVED. THE ASSESSEE FURNISHED THE COMPLETE LIST OF DONORS WITH NAMES AND ADDRESSES, A COPY OF WHICH IS PLACED AT P AGES 11 TO 40 OF THE I.T.A. NO.665/LKW/2016 ASSESSMENT YEAR:2012-13 3 PAPER BOOK. AS PER THE PROVISIONS OF SECTION 115BB C(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 TH E NAME AND ADDRESS OF THE PERSON MAKING SUCH CONTRIBUTION AND SUCH OTHER PART ICULARS AS MAY BE PRESCRIBED. LEARNED D. R. WAS NOT ABLE TO DEMONSTR ATE AS TO WHAT OTHER PARTICULARS HAVE BEEN PRESCRIBED FOR RECORDING THE VOLUNTARY CONTRIBUTIONS OR DONATIONS. THE RECORD MAINTAINING THE NAME AND ADD RESS OF THE PERSONS HAS ALREADY BEEN MAINTAINED BY THE ASSESSEE AND DUR ING ASSESSMENT PROCEEDINGS A COMPLETE LIST WAS PROVIDED TO THE ASS ESSING 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 SOCI ETY VS. ASSTT. DIRECTOR OF INCOME TAX (EXEMPTIONS) OF DELHI TRIBUNAL AND HAS A LSO RELIED ON THE CASE LAW OF GAGAN SOLANKI MEMORIAL EDUCATIONAL SOCIETY V S. ASSTT. DIRECTOR OF I.TAX (E) WHERE THE REQUIREMENT OF SECTION 115BBC H AS BEEN DISCUSSED. THE RELEVANT FINDINGS OF LEARNED CIT(A) ARE REPRODU CED AS UNDER: 5.4 I HAVE EXAMINED THE FACTS AND CIRCUMSTANCES OF THE CASE AND HAVE CONSIDERED THE FINDINGS OF THE AO AND SUBM ISSIONS 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 AP PELLANT 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 M ONEY TO THESE INSTITUTIONS BY WAY OF ANONYMOUS DONATIONS, A NEW SECTION 115BBC HAS BEEN INSERTED TO PROVIDE THAT AN Y 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. I.T.A. NO.665/LKW/2016 ASSESSMENT YEAR:2012-13 4 ANONYMOUS DONATION HAS BEEN DEFINED IN THE NEW SECT ION TO MEAN ANY VOLUNTARY CONTRIBUTION REFERRED TO IN SECT ION 2(24) (IIA) OF THE ACT, WHERE A PERSON RECEIVING SUCH CON TRIBUTION DOES NOT MAINTAIN A RECORD OF THE IDENTITY INDICATING TH E NAME AND ADDRESS OF THE PERSON MAKING SUCH CONTRIBUTION AND SUCH OTHER PARTICULARS AS MAY BE PRESCRIBED. TO BE EXCLUDED FR OM THE DEFINITION OF ANONYMOUS DONATIONS THE PERSON RECEIV ING THE DONATION IS REQUIRED TO MAINTAIN THE RECORD OF IDEN TITY INDICATING THE NAME AND ADDRESS OF CONTRIBUTOR AND SUCH OTHER PARTICULARS AS MAY BE PRESCRIBED. SINCE NO OTHER PARTICULARS HA VE BEEN PRESCRIBED UNDER THE PROVISIONS THE PERSON RECEIVIN G THE DONATION IS UNDER OBLIGATION TO MAINTAIN THE IDENTI TY OF DONORS INDICATING THE NAME AND ADDRESS. ON PERUSAL OF THE DETAILS FILED BY APPELLANT IT IS SEEN THAT THE APPELLANT HAS NOT ONLY FURNISHED THE NAMES AND ADDRESSES OF DONORS BUT ALSO FURNISHE D A NUMBER OF OTHER DETAILS IN RESPECT OF SOME DONORS V IZ ID PROOFS AND ADDRESS PROOFS. IN VIEW OF ABOVE IT IS HELD THA T 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 CA NNOT 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 EDUCATIONA L CHARITABLE TRUST IN ITA NO 776/LKW/2014 DATED 17.06 .2015 WEREIN THE FACTS ON THE ISSUE OF ANONYMOUS DONATION S ARE SIMILAR TO THE APPELLANT'S CASE. 5.6 RELIANCE WAS PLACED ON DECISION OF HON'BLE DELH I BENCH OF ITAT IN CASE OF HANS RAJ SAMARAK SOCIETY VS. ADIT 1 6 TAXMAN 103. AS PER THE DECISION THE RECEIVER HAS THE OBLIG ATION TO MAINTAIN THE IDENTITY INDICATING THE NAME AND ADDRE SS ONLY AND NOTHING MORE. NO OTHER PARTICULAR HAS BEEN PRESCRIB ED UNDER THE PROVISION. NO OTHER WORD CAN BE READ IN SEC-115 BBC(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 SAMARAK SOCIETY(2 013) 35 TAXMAN642(DELHI). I.T.A. NO.665/LKW/2016 ASSESSMENT YEAR:2012-13 5 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. 2007-0 8 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 TH E SECTION. MOREOVER, PROVISION HAS BEEN MADE FOR PARTICULAR'S AS MAY BE PRESCRIBED. UNDISPUTEDLY, HOWEVER, NO SUCH PARTICUL ARS HAVE BEEN PRESCRIBED.' IN VIEW OF ABOVE DISCUSSION AND DECISIONS OF HON'BL E JURISDICTIONAL ITAT, HON'BLE DELHI ITAT AND HON'BLE DELHI 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. (ORDER PRONOUNCED IN THE OPEN COURT ON 31/08/2018) SD/. SD/. (PARTHA SARATHI CHAUDHURY) ( T. S. KAPOOR ) JUDICIAL MEMBER A CCOUNTANT MEMBER DATED:31/08/2018 *SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW