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Income Tax Appellate Tribunal, “B”, BENCH MUMBAI
Before: SHRI R.C.SHARMA, AM & SHRI PAWAN SINGH, JM Dr.
आदेश / O R D E R PER R.C.SHARMA (A.M): This is an appeal filed by the assessee against the order of CIT(A)- 1, Mumbai dated 05/10/2016, for the A.Y.2012-13 in the matter of order passed u/s.143(3) of the IT Act. 2. The only grievance of assessee relates to disallowance of donation received during the year and treating the same as anonymous donation, taxable u/s.115BBC of the IT Act. 3. Briefly, the facts of the case are that the assessee had filed its Return of Income for AY 2012-13 in the status of Trust showing income at Rs. Nil. The Return of Income was accompanied with Final Accounts and Audit Report in Form No. 10B. The assessee is Registered u/s 12A with DIT(E), Mumbai bearing No. TR/25225 and also Registered with Charity Madhavi Raksha Sankalp Commissioner, Mumbai vide Registration No. E 10395 (Mumbai). The assessment was completed vide order dated 9.3.2015 u/s 143(3) of the I.T. Act at total income of Rs.3,37,72,600/-. The assessee has contested the addition/taxability of Rs. 3,37,72,602/- appearing as corpus donation received during the year.
At the outset learned AR placed on record the order of the Tribunal in assessee’s own case for the A.Y.2010-11 dated 26/04/2017, wherein exactly similar issue was decided by Tribunal and taxability of donation was restored back to the file of the AO with the following observation:- “The assessee in the instant case could not provide addresses, father's name and PAN of the donors and the assessee is also not a religious trust to be covered under exception. The assessee has come forward with a request that if an opportunity is given to the assessee, the assessee can produce the donors before the AO as directed by the AO. It is also submitted that PAN and addresses of all the donors for verification by the A.O. will also be furnished for verification by the AO. Considering the factual matrix of the case , keeping in view the provisions of Section 115BBC of 1961 Act and in the interest of justice and fair play, we are of considered view that this matter needs to be set aside and restored to the file of the A.O for necessary enquiry and verification of the said donations so received by the assessee as to genuineness and also for verifying compliance of the relevant section 115BBC of 1961 Act. The onus as well burden of proof is entirely on the assessee to provide to the AO all relevant details as contemplated under section 115BBC of 1961 Act to the satisfaction of the AO as to compliance of Section 115BBCof 1961 Act and as to genuineness of the said donation. The assessee is directed to furnish PAN , addresses and all other relevant details of all the said donors before the AO to satisfy mandate of Section 115BBC of 1961 Act. The assessee is directed to produce before the AO donors , 25% in numbers for donation up-to Rs 20,000/- and 10% in number for donations above Rs.20,000/- to satisfy the AO about compliance of mandate of Section 115BBC of the Act and genuineness of the such donations. The selection of donors shall be on random basis at the sole discretion of the AO , which short listed list of donors shall be supplied by the AO to the assessee for necessary compliance as per our above directions. If so required for ensuring compliance Madhavi Raksha Sankalp of Section 115BBC of 1961 Act and for establishing genuineness of the said donations of Rs. 2,42,26,508/-, the AO can enhance the number of persons to be produced by the assessee before him higher than minimum stipulated by us as above. Similarly, with respect to the denial of the exemption amount to the tune of Rs. 1,35,70,000/- for 15% of income being set aside for accumulation to be spent for charitable purposes in the next year as provided u/s 11(1) of 1961 Act. The assessee had stated that the trust was actively considering launching of projects in the next year after plans are finalized and the amount so aside was spent in the next year. In our considered view and in the interest of justice and fair play, this claim of the assessee that the said amount was kept for launching of project next year after plans are finalized and was spent in the next year accordingly also need verification and as such the matter is set aside and restored to the file of the A.O. for proper verification with respect to the contentions of the assessee to be decided by the AO in accordance with law. Needless to say that proper and adequate opportunity of being heard shall be provided by the AO to the assessee in accordance with principles of natural justice in accordance with law. The evidences and contentions of the assessee in its defence shall be admitted by the AO in set aside proceedings in the interest of justice. We order accordingly.”
The facts and circumstances during the year under consideration are same, therefore, respectfully following the order of the Tribunal in assessee’s own case, we restore the matter back to the file of the AO for deciding afresh in terms of direction given by the Tribunal in its order dated 26/04/2017.