COMMUNITY RURAL ORIENT SERVICE SOCIETY (CROSS),,HYDERABAD vs. THE ITO,, GUNTUR

IN THE INCOME TAX APPELLATE TRIBUNAL VISAKHAPATNAM BENCH, VISAKHAPATNAM BEFORE SHRI V. DURGA RAO, HON’BLE JUDICIAL MEMBER & SHRI D.S. SUNDER SINGH, HON’BLE ACCOUNTANT MEMBER ITA No. 443/VIZ/2016 (Asst. Year : 2012-13) M/s. Community Rural Orient vs. ITO (Exemptions)Ward, Service Society (CROSS), Guntur. D.No.8-46, Penumaka Village, Tadepalli Mandal, Guntur Dist. PAN No. AAAAC 4944 N (Appellant) (Respondent)

Assessee by : None. Department By : Shri D.K. Sonawal – CIT DR Date of hearing : 29/01/2019. Date of pronouncement : 06/02/2019. O R D E R PER V. DURGA RAO, JUDICIAL MEMBER

This appeal by the assessee is directed against the order of Commissioner of Income Tax (Appeals)-2, Guntur, dated 07/09/2016 for the Assessment Year 2012-13. 2. The assessee has raised the following grounds of appeal: “1. The order of the learned Commissioner of Income-Tax (Appeals) is erroneous both on facts and in law. 2. The learned Commissioner of Income-Tax (Appeals) erred in deciding the appeal without providing proper opportunity to the appellant. The learned Commissioner of 3. Income-Tax (Appeals) ought to have granted opportunity as

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requested by the appellant. 4. The learned Commissioner of Income-Tax (Appeals) erred in dismissing the appeal without considering the grounds of appeal agitated by the appellant. 5. The learned Commissioner of Income-Tax (Appeals) erred in confirming the action of the Assessing Officer in treating the amounts received from the donors aggregating to Rs.3,30,09,249/- as the income of the appellant. The learned Commissioner of Income-Tax (Appeals) ought to have considered the fact that the said amount was received to be passed on to third parties and does not represent the income of the appellant. 6. The learned Commissioner of Income-Tax (Appeals) erred in confirming the action of the Assessing Officer in treating the entire amount, without considering the payments made against such amounts, as the income of the appellant. 7. The learned Commissioner of Income-Tax (Appeals) erred in confirming the levy of interest u/s 234B of the I.T.Act. 8. Any other ground that may be urged at the time of hearing.”

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others. According to the Assessing Officer, the society maintained bank accounts with Axis Bank, Vijayawada Branch, Axis Bank Kolkata Branch and SBH, Mangalagiri Branch Rs. 136.5 lakhs through Axis Bank Kolkata Branch and Rs. 3.00 lakhs through SBI, Mangalagiri Branch. Thus, the total deposits aggregated to Rs. 3,30,09,249/-. Before the Assessing Officer, the assessee has submitted that the amounts received by the assessee were not towards absolute donations, but were received to be passed on other concerns as per the instructions of the donor; that its receipt was very nominal being about 1% and therefore the assessee pleaded that the amount received should not be treated as its income. A sworn statement was recorded from Sri B. Nageswara Rao, President of the society on 03/03/2015. In his sown depictions made in the statement, has stated that all the donations received in the society’s bank accounts were arranged by one Mr. Ashok Kumar Roy, resident of D.No. 156/5, Raja Rammohan Roy Road, East Sharadapally, Kolkatta-700008 and the donations received were transferred back to the account of the person as directed by Mr. Ashok Kumar Roy. The Axis Bank account No. 900010046016410 held by the assessee-society in Kolkata was opened during the Financial Year 2011-12 and all the donations received were through Mr. Ashok Kumar Roy and the

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amounts were returned as per the directions after deduction 1% commission. These transactions were done in the Financial Year 2011-12 anticipating huge donations to the society as promised by Mr. Ashok Kumar Roy. The assessee-society was registered under section 12AA of the Act and in a fraudulent way for the personal gains of the President and Treasurer of the society and allowed to be misused by antisocial elements Mr. Ashok Kumar Roy of Kolkatta, who has defrauded the revenue. Accordingly, the Assessing Officer has rejected the claim of exemption under section 11 of the Act and assessment was completed. 4. On appeal before the ld. CIT(A), the assessee has not appeared, though ld. CIT(A) has given as many as opportunities to the assessee. Even before us, the assessee has not appeared though as many as opportunities were given on 05/05/2017, 31/07/2017, 31/08/2017, 03/10/2017, 15/11/2017, 01/12/2017, 06/02/2018, 07/03/2018, 15/05/2018, 05/07/2018, 24/07/2018, 21/08/2018, 08/10/2018, 04/12/2018 & 29/01/2019. Therefore, we proceeded to pass the orders in accordance with law. 5. Ld. Departmental Representative has submitted that the assessee has not filed any details in respect of amounts received from the parties and involved in illegal transactions to defraud the

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Income Tax department therefore, submitted that the order passed by the ld. CIT(A) may be upheld. 6. We have heard ld. Departmental Representative and perused the material available on record. 7. We find that ld. CIT(A) has considered the entire factual matrix of the case and confirmed the order of the Assessing Officer. We have also gone through the assessment order and order of the ld. CIT(A). Prima facie it appears that the assessee is not eligible for claim under section 11 of the Act for the activities carried by the assessee. We also find that the income received by the assessee is not inconsonance with the objects of the society and therefore, there is a clear violation of section 11 of the Act. Therefore, the assessee is not entitled for exemption under section 11 of the Act. The relevant portion of the order of the ld.CIT(A) is extracted as under:-

The appeal was posted on different dates i.e. on 9-6-2016. Against this the appellant submitted that the paper book to be filed is not completed and requested for adjournment. The case was reposted for 5-7-2016. There was no compliance for this notice. Subsequently the case was reposted for 17-08-2016. The appellant again put up a letter stating that the information was being gathered and the same could not be completed and that they are contemplating to entrust the matter to an advocate. The case was reposted for 7-9-2016 and it was clearly stated that

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it may be treated as last opportunity. On 6-9-2016, the appellant sent one more request for adjournment stating that the paper book is not yet completed and again requested for one more date. From these requests for adjournment, it is clear that the appellant is not interested in pursuing the appeal. It is filing the same reply every time that the preparation of paper book is under process/not completed. It appears that the appellant has not even appointed any advocate/AR to represent the case. Till date, neither the President of the Society nor any AR has appeared before the undersigned. From the Assessment Order dated 2-3-2016 also it appears that the case was never represented by any AR/CA/Advocate/ITP but Mr. B. Nageswara Rao, the President of the Society himself appeared before the AO. Even before the AO, there was noncompliance on a number of times. To the initial notice u/s. 148 dated 7-4-2015 before the AO there was no compliance. Only against 142(1) notice requesting for show cause as to why the assessment could not be completed u/s. 144, the President was present on 29-1-2016. Later the case was adjourned to 8-2-2015 again there was no compliance. When the final opportunity was glen partial details were furnished and the President of the Society stated that no books of account were maintained by the Society. The relevant para 2 of the Assessment Order reads as under: PARA 2 "The president of the society appeared on 26.02.2016 and furnished photo copies certificate of Registration under societies Act, 11/s 12,1 & U/s 80G of the IT Act and FCRA Act And also produced Copy of Bank statement in respect of Bank a/c held by the society in SBH, Mangalagiri Branch, Guntur Dt. But the Books of a/c of the society and donation receipt books in respect of donations received by the society during the FY 2011-12 relevant to the A Y 2012-13 and the registers recording expenditure for the purposes of the society are not furnished. The president of the society stated that no such books of a/c and receipt books are maintained by the society." The conduct of the assessee-appellant shows the noncompliance at every stage i.e. before the AO and also before the undersigned. No further opportunity/adjournment is given for the above mentioned reasons and that the latest adjournment

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posting the case for 7-9-2016 was given clearly stating this was the final opportunity which has not been availed by the assessee- appellant. Paras 3,4,5 of the Assessment Order read as under: "Pre assessment enquiries conducted to venrify the genuineness of donations paid by M/s Mega Trends INC (ADHFM5300Q) and M/s. Sri Mishri Promoter (ABHFS9766R) both assessed to tax with ACIT, Non-corporate Circle-3, Chennai revealed that the society was not functioning as per the objects of memorandum of Association and also not complying the provisions of Sec 11 of the IT Act. The donations received were returned for a Commission of 1% of the amount of donations received. A sworn statement was recorded from Sri B. Nageswara Rao, President of the (Community Rural Orient service Society) the assessee society on 03.03.2015. In his sworn depictions made in the statement, the president has stated that all the donations received in the society's Bank accounts were arranged by one, Mr. Ashok Kumar Roy, Resident of V. No. 156/51 Raja Rammohan Roy Road, East Sharadapally, Kolkata - 700008 and the donations received were transferred hack to the account of the person as directed by Mr. Ashok Kumar Roy. The Axis Bank a/c No. 900010046016410 held by the assessee society in Kolkata was opened during the FY 2011- 12 and all the donations received were through Mr. Ashok Kumar Roy and the amounts were returned as per his directions after deduction 1% commission. These transactions were done in the FY 2011-12 anticipating huge donations to the society as promised by Mr. Ashok Kumar Roy. The assessee society was registered U/s 1244 of the IT Act and a certificate u/s. 80G was granted. But the society was not filed for the purposes of sec 35(1) of the IT Act, 1961. Against which M/s Megatrends INC and M/s Sri Mishri Promoters, Chennal claimed waited deduct/on U/s 35(1)(ii) of the IT Act for the A Y 2012-13 on the donations paid to the assessee society. The president of the society stated that the society is not notified for the purpose of 35(1) of the IT Act and also stated that the said Donation receipts might have been forged by Mr. Ashok Kumar Roy on the societies letter pad taken from them along with blank cheques and R TGS from duly signed by him and by the Treasurer of the society Sri K V Sesha Rao. Thus, from the foregoing, it is dearly established that the society has not functioned for the purposes it was registered U/s 12AA of the IT Act and conducted in a fraudulent way for the personal gains of the president and Treasurer of the society and

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allowed to be misused by antisocial element i.e. Mr. Ashok Kumar Roy of Ko/kata who has defrauded the revenue and a/so the other tax public. The objects of the society are inclusive of Relief of poor, providing education and medical relief among many others. The assessee has not pursued any of the objects as per the details available in the Return of Income filed. The assessee was in receipt of donations amounting to Ps. 190.5 lakhs as per Axis Bank, Vijayawada a/c statement, Ps. 136.5 lakh as per Axis Bank, Kolkata Branch account statement and Rs. 3 lakhs as per SBH, Mangalagiri Branch account statement. Total put together Rs. 3,30,00,000/-. Total amount of donations admitted as per income and expenditure account during the previous year was Rs. 3,25159,249/- including interest received in the bank account of the assessee society. Therefore the balance Rs. 4,50,000/- donations received over and above donations admitted in P&L a/c required to be added to the income. The assessee has claimed to have issued donations amounting Rs. 3,00,69,000/- as per P&L a/c, as per Ledger extract for donations paid. The Ledger a/c did not contain the details of donees to whom such donations were paid. All the donations received by the society and paid by the society were through Bank, either by cheque or RTGS. But the assessee society did not have any details of such donations received as well as paid during the previous year. The President of the society has stated that no such details were maintained and also stated that no books of a/c were maintained during the previous year. In the absence of proofs for having paid any donation, and other expenses as claimed in the P&L a/c, the claim of expenditure is rejected. The entire receipts as per the society's bank accounts amounting to Ps. 3,30,09,249/- including interest is brought to tax as per pro visions of sec 2(24)(11J) of the I.T.Act, at Maximum Marginal rate applicable as per proviso to sub sec 2 of sec 164 of the IT Act, 1961 by rejecting the assessee's claim U/s 11 of the IT Act for it's violation by invoking provisions of sec 13(1)(c) for accepting 1% commission on the donations received for the personal benefit of the president and the Treasurer of the society and for its fraudulent conducted established during the pre Asst enquiry conducted. Accordingly, the assessment for the A Y 2012-13 in the case of the society is completed and the taxable income of the society and tax payable there on are determined as under. Computation of Income:

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Income determined invoking provisions of Sec. 2(24(iia) : 33009249 @ MMR Coupled with the admission that no books of account are maintained, I don't find any reason to differ from the contents of the assessment order dated 2-3-2016. All the grounds of appeal are hereby dismissed.”

Sd/- sd/- (D.S. SUNDER SINGH) (V. DURGA RAO) Accountant Member Judicial Member Dated: 06th Feb., 2019. vr/- Copy to: 1. The Assessee – M/s. Community Rural Orient Service Society (CROSS), D.No.8-46, Penumaka Village, Tadepalli Mandal, Guntur Dist. 2. The Revenue – ITO (Exemptions) ward, Guntur. 3. The CIT (Exemptions), Hyderabad. 4. The CIT(A)-2, Guntur. 5. The D.R., Visakhapatnam. 6. Guard file. By order

(VUKKEM RAMBABU) Sr. Private Secretary, ITAT, Visakhapatnam.