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TMI Blog2012 (10) TMI 749X X X X Extracts X X X X X X X X Extracts X X X X ..... out in the case of the assessee in connection with search in Ch.Mallareddy and related group. Consequently, notice under S.153A of the Act was issued, and in response to it, the assessee filed a revised return disclosing the same loss as admitted earlier. During the course of search proceedings, the assessing officer found that the assessee-trust had been granted registration u/s. 12A with effect from financial year 2008-09. Accordingly exemption under S.11 is available to it only from assessment year 2009-10 onwards. Since no exemption is available for the year under consideration, the assessing officer observed that the income of the Trust is to be assessed ass business income. He also observed that since the operation of the society was yet to be started the interest income should be assessed as income from other sources. He also found that during the year under consideration assessee had received contribution and donation totaling to Rs.96,40,000, As no exemption is allowed on the income of the Trust, the entire contribution partakes the character of income. Considering all these aspects, the assessing officer assessed the income of the assessee at Rs.95,69,686, raising a dema ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wholly or partly for such purpose or by an association or institution referred to in clause 21 or clause 23 or by a fund or trust or institution referred to in sub-clause iv, or sub-clause v or by any university or other educational institution refereed to in sub-clause (iiiad) or sub-clause vi...". Thus by definition provided in the Income-tax Act, the voluntary contributions received by a Trust partakes the character of income. Thought the appellant claims that such contributions were capital receipts, but no documentary evidence has been filed to substantiate the same. When a particular receipt is claimed to be non-taxable, the onus is on the appellant to prove that the same is not taxable as per the provisions of the Act. The appellant has not been able to prove that the said contribution received by it are not in the nature of capitation fee collected from students/prospective students or their relatives in the garb of donation. The appellant having failed to discharge its onus I find no infirmity in the order of the AO treating the said contributions as income. In other words the addition made by the AO is confirmed." 4. Aggrieved by the order of the CIT(A), assessee is in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h a direction to form corpus of the assessee trust or that they are not in the nature of capitation fee received from students/prospective students or their relatives. The assessing officer shall thereafter decide this issue afresh in accordance with law and after giving reasonable opportunity of hearing to the assessee. ITA No.1145/Hyd/2011 : Assessment year 2006-07 7. Though facts for this year are almost identical to that of assessment year 2005-06, there is slight difference. For this year, assessment was completed on a net loss of Rs.4,03,287, after making an addition of Rs.37,46,000 to the loss returned by the assessee of Rs.41,49,287, vide order of assessment dated 30.12.2010 passed under S.153A read with S.143(3) of the Act. 8. On appeal before the CIT(A), though the submissions of the assessee were similar to those noted in para 4 of this order for assessment year 2005-06, the CIT(A) relying on the provisions of S.10(23C)(iiiad), duly extracting the same, held that the expression used therein is "aggregate annual receipt", and only if such aggregate annual receipt does not exceed Rs.1 crore, the income received on behalf of a university or an educational institution doe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee is not falling under any of the provisos of Sec.10(23C) or Sec.11 and even under provisions of Sec.115 BBC anonymous donations could be taxed only in case of assessees falling under some of the clauses of the provisions of Sec.10(23C) and thereby erred in including the same for arriving at the receipts to be Rs.One crore. 3. The learned CIT(A) erred in holding that the assessee has not produced any documentary evidence in support of claim that the donations are towards corpus when the CIT(A) during the course of only one hearing has not raised any equerry nor the AO has given any finding that they are not towards corpus fund." 12. We have heard both the parties and perused the record as well as gone through the orders of the authorities below. It is seen from the assessment records the CIT(A) noted that four items, namely, i) fees received - Rs. 87,46,387/-, ii) Donations - Rs. 37,46,000/-, iii) Fees -Rs. 6,39,000/- and Rs. Iv) lab hire charges - Rs. 7,75,600/- together exceeded Rs. 1 crore and, therefore, the assessee's contention that the annual receipts were less than Rs. 1 crore is not sustainable. 13. The learned counsel for the assessee submitted before us ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Expenditure statement, the fee received was shown as Rs.2,11,20,112. In the absence of any explanation from the assessee to reconcile this difference, he directed the assessing officer to verify the same while computing the income. 16. With regard to the addition of Rs.2,75,000 made on account of contributions received during the year, the CIT(A) observing that the assessee has not discharged the onus on it to prove that the contributions were capital in nature and were not to be taxed as such, and also following the appellate order for the assessment year 2005-06, held that such receipts have been rightly added by the assessing officer. However, observing that in the receipts and payments account accompanying the return of income, the donation received has been shown at Rs.27,500 whereas the assessing officer has made an addition of Rs.2,75,000 he directed the assessing officer to verify this figure and make addition of the correct amount while giving effect to his order. 17. Aggrieved by this order of the CIT(A) for the assessment year 2007-08, assessee preferred second appeal before us. 18. We have heard the arguments of both the parties, perused the record and gone through ..... X X X X Extracts X X X X X X X X Extracts X X X X
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