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TMI Blog2015 (10) TMI 1078X X X X Extracts X X X X X X X X Extracts X X X X ..... , the assessee offered the very same amount for taxation. Under these facts and circumstances of the case, we are of the opinion that the assessee has neither concealed the income nor furnished inaccurate particulars. In the case of CIT v. Balraj Sahani [1979 (2) TMI 61 - BOMBAY High Court ] held that the findings in quantum proceedings are not binding in penalty proceedings and the Tribunal, or consideration of unreliable state of evidence regarding concealment, was justified in deleting penalty. Therefore, the ld. CIT(A) was not justified in confirming the penalty order passed by the Assessing Officer. - Decided in favour of assessee. - ITA No. 186/Mds/2014 - - - Dated:- 24-7-2015 - Chandra Poojari, AM And V Durga Rao, JM For the Appellant : Shri S Sridhar, Adv For the Respondent : Shri S Das Gupta, JCIT ORDER Per V Durga Rao, Judicial Member This appeal filed by the assessee is directed against the order of the ld. Commissioner of Income Tax (Appeals) (C) II, Chennai, dated 15.11.2013 passed under section 271(1)(c) of the Income Tax Act. 2. Brief facts of the case are that the assessee Sri Balaji educational and Charitable Public Trust is a trust reg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y of cash to the tune of ₹ 12,94,74,800/-. Based on the above, the assessee was asked to explain as to why the balance cash received in the form of voluntary contribution to the tune of ₹ 8.21,54,800/- should not be treated as undisclosed income of the trust and how the exemption under section 11 of the Act be granted. 4. It was submitted before the Assessing Officer that the impounded material in ANN/VN/B D/Imp/5, the assessee claimed that all the cash received as voluntary contribution was recorded in the cash book but while preparing the ledger of voluntary contribution they booked some cash expenditure made directly from the said cash received. Thus, the total receipt of voluntary contributions showed lesser amount to the tune of ₹ 3,86,48,000/- and the difference was not ₹ 8,21,54,800/- as claimed by the Department. In support of the claim, the assessee has produced books of accounts. On verification of the vouchers of voluntary contribution, the Assessing Officer has noticed that many vouchers did not have the requisite details of the donors. The assessee was asked to produce the details of the donors so that the same could be verified. The assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rried the matter in appeal before the Tribunal. 8. (i) The ld. Counsel for the assessee has submitted that the assessee is running charitable educational institution and the donation received by the assessee are not taxable because the assessee is enjoying registration under section 12AA of the Act. (ii) The ld. Counsel for the assessee has further submitted that all the donations received by the assessee are voluntary donation and therefore, the donations received by the assessee exempt from taxation under Income Tax Act. (iii) He has further submitted that the Assessing Officer came to a conclusion based on the seized material in ANN/VN/B D/Imp/5 page 1 to 33 that the assessee has received voluntary donation by way of cash amounting to ₹ 12,94,74,800/-. When it was explained before the Assessing Officer that the amount shown lesser to the amount received was due to some expenditure made directly from the said cash receipts, the amount as found by the Assessing Officer of ₹ 8,21,54,800/- is not correct and accepted that it is only ₹ 3,86,48,000/-. It was also submitted before the ld. CIT(A) that the Assessing Officer himself, based on the seized material ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Rajagopalan agreed that Sri Balaji Educational Charitable Public Trust declared receipt of ₹ 7,94,12,000/- on account of voluntary contribution from the students which includes ₹ 3,20,92,000/- received in demand draft and the balance of ₹ 4,73,20,000/- received in cash. But, according to the Assessing Officer, the amount received by the assessee is ₹ 12,94,74,800/-. The assessee was asked o explain in the context of seized material i.e. ANN/VN/B D/IMP/5. It was submitted by the assessee that all the cash received are voluntary contribution and was recorded in the cash book. But while preparing ledger of the voluntary contribution, they booked some cash expenditure made from the cash received. Thus, the total receipt of voluntary contributions showed lesser amount to the tune of ₹ 3,86,48,000/- and the difference was not ₹ 8,21,54,800/- as claimed by the Department. In support of its claim, the assessee produced books of account. On verification of the vouchers of voluntary contribution, it was noticed that many vouchers did not have the requisite details of the donors. The assessee was asked to produce the details of the donors so that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the anonymous donation received by the assessee is taxable under the Income Tax Act and confirmed the order of the Assessing Officer. We find that the assessee has received voluntary donation and the assessee being an educational and charitable institution not liable for taxation. During the survey, some materials was seized and the Assessing Officer has asked the assessee to explain the details of the donors and the assessee has not able to explain to the extent of 3,86,48,000/- calculated by the assessee himself and accepted that this amount may be considered for taxation. It is not the case of the Assessing Officer that based on the seized materials, the Assessing Officer came to a conclusion that the amount offered by the assessee is anonymous donation. In fact, in the assessment order, the Assessing Officer came to a conclusion based on the seized materials in ANN/VN/B D/IMP-5 the assessee has received voluntary donation by way of cash amount to ₹ 12,94,74,800/- and the managing trustee has submitted that the amount is only ₹ 7,94,12,000/-. When the assessee gave an explanation by stating that all the donations received by the assessee are voluntary donations, howe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a) and observed as under: 11. In a recent decision of the Hon'ble Supreme Court in Civil Appeal No.9772 of 2013, dated 30.10.2013 (Mak Data P. Ltd., vs. Commissioner of Income Tax-II), the Hon'ble Supreme Court while considering the Explanation to Section 271(1), held that the question would be whether the assessee had offered an explanation for concealment of particulars of income or furnishing inaccurate particulars of income and the Explanation to Section 271(1) raises a presumption of concealment, when a difference is noticed by the Assessing Officer between the reported and assessed income. The burden is then on the assessee to show otherwise, by cogent and reliable evidence and when the initial onus placed by the explanation, has been discharged by the assessee, the onus shifts on the Revenue to show that the amount in question constituted their income and not otherwise. Factually, we find that the onus cast upon the assessee has been discharged by giving a cogent and reliable explanation. Therefore, if the department did not agree with the explanation, then the onus was on the department to prove that there was concealment of particulars of income or furnishing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n order to justify levy of penalty for addition of cash credits, there must be some material or circumstances leading to reasonable conclusion that the amount does represent assessee's income and the circumstances must show that there was conscious concealment or act or furnishing of inaccurate particulars; Explanation 1 does not make the assessment order conclusive evidence that the amount assessed was in fact the income of the assessee. 17. In the case of CIT v. Balraj Sahani 119 ITR 36, the Hon'ble Bombay High Court has observed as under: The proceedings for penalty against the assessee were taken under s. 271 (l)(c). Under that provision, before the ITO can exercise his jurisdiction to make an order by way of penalty, he has to be satisfied that the assessee has concealed the particulars of his income or furnished inaccurate particulars of such income. The gravamen of the charge against the assessee was that he had concealed the receipt which he had received from the producer in connection with the a particular picture. It is no doubt true that in the quantum appeal the Tribunal had come to a conclusion that the assessee had received a sum which was paid to him ..... X X X X Extracts X X X X X X X X Extracts X X X X
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