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TMI Blog2021 (7) TMI 143X X X X Extracts X X X X X X X X Extracts X X X X ..... fore us. The only plea made before us was that in view of the voluminous of record the information cannot be filed in physical form. Only in order to verify this genuineness of this claim we had called for a remand report from the Assessing Officer pursuant to which the appellant society had filed a new set of information different from what was filed at the time of original assessment proceedings. This conduct of the assessee made us to believe that the information filed during the original assessment proceedings is not correct or incomplete. We are inclined to believe that the appellant society deliberately adopted the dilatory tactics before the assessing authority with a view to not to enable the AO to carry out the verification so as to satisfy himself about genuineness of the donations received. It is settled principle of law that the assessee-company cannot be given a second innings to make good its case. We are of the considered opinion that the transaction of receipt of donation is a sham, a make believe story, a device adopted by the appellant society to bring on record the undisclosed income of the appellant society. Therefore, we do not see any reason to interfere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same by the Ld. CIT(A) in the appellate order since as arbitrary, illegal and bad-in-law be deleted. 3. On the facts and in the circumstances of the case and in law, the Learned C.I.T. [A] erred in confirming the observation and findings of the Ld. Assessing Officer in making addition of ₹ 2,17,33,000/- as anonymous donations received by the appellant u/s. 115BBC despite the facts that the appellant had furnished some of the details and confirmations of the donors along with their identification before the Ld. Assessing Officer and without affording sufficient opportunity to the appellant trust registered u/s. 12A of the I.T. Act, 1961, for obtaining and furnishing such confirmations of donations from the donors, merely on the basis of a partial inquiry made in respect of some of the donors out of a number of donors. The addition so made therefore being arbitrary, illegal and bad-in-law be deleted. 4. On the facts and in the circumstances of the case and in law, the Learned C.I.T. [A] erred in confirming the observation and findings of the Ld. Assessing Officer in respect of addition made of ₹ 2,17,20,000/- as anonymous donation u/s. 115BBC of the Act in spite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the lower authorities to substantiate its claim that the donations were genuinely made by them for the cause of the appellant. Therefore, the additions made being arbitrary, illegal and bad-in-law be deleted. 6. The appellant craves leave to add, amend, modify, alter, revise, substitute, delete any or all grounds of appeal, if deemed necessary at the time of hearing of the appeal. 3. Briefly, the facts of the case are as under:- The appellant is a trust duly registered under the Bombay Public Trust Act, 1950. It was formed for the purpose of promoting of the educational objects. The appellant trust is also duly registered u/s. 12AA of the Income Tax Act, 1961 ('the Act'). The return of income for the assessment year 2016-17 was filed on 31.03.2017 declaring Nil income. Against the said return of income, the assessment was completed by the Income Tax Officer, Exemption Ward, Kolhapur ('the Assessing Officer') vide order dated 27.12.2018 u/s. 143(3) of the Act at a total income of ₹ 2,17,30,000/-. While doing so, the Assessing Officer brought to tax a sum of ₹ 2,17,75,000/- being the donations received during the year under consideratio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Bombay Public Trust Act, 1950 and also registered u/s. 12AA of the Act. The appellant trust is set-up with the object of promoting of educational objects. During the year under consideration, the appellant trust had received donations aggregating to ₹ 2,17,30,000/- from total 4851 donors an identical amount of ₹ 4,501/- was received from each person. Needless to mention that the onus lies upon the assessee to prove the genuineness of the donations received as well as identity of donors. 9. On perusal of the assessment order, it is clear that the appellant society had not complied with the questionnaire issued u/s. 142(1) on 11.09.2018, 26.09.2018. It is only in response to the show-cause notice issued on 03.12.2018 assessee filed certain details before AO. On receipt of the above information, the Assessing Officer attempted to verify the genuineness of the donations by issuing notice u/s. 133(6) of the Act on 26 persons/donors on random basis and most of the notices were returned un-served with the remarks Incomplete address or persons not known . The assessee was called upon to explain the discrepancies by issue of show-cause notice dated 24.12.2018. In respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erted. The following material facts of case are note worthy:- (i) The appellant society had adopted dilatory tactics during the course of assessment proceedings by not responding to the earlier notices issued u/s. 142(1) but filing information just before the assessment was getting time barred. (ii) Improbability of receiving identical amount of donation of ₹ 4501/- from 4851 persons. (iii) On random verification carried out by the AO by exercise of power u/s. 133(6) of the Act, all the notices have returned un-served with the remarks Address incomplete/persons not known . (iv) The appellant society had failed to discharge the onus of rebuttal of the material with which he was confronted before the AO. (v) No attempt was made either before the ld. CIT(A) or before the Tribunal to discharge the onus of proving the transaction of receipt of donations is genuine. 13. The above facts would show that the transaction of the receipt of the donations is not normal and genuine and militate about the claim of appellant society the transaction of receipt of donations is genuine. It is settled position of law that the burden of proving the genuineness of tran ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns received. It is settled principle of law that the assessee-company cannot be given a second innings to make good its case. Reliance can be placed on the following decisions of the Tribunal:- i. Asstt. CIT v. Anima Investment Ltd. [2000] 73 ITD 125 (Delhi) (TM); ii. Asstt. CIT v. Arunodoi Apartments (P.) Ltd. [2002] 123 Taxman 48 (Gauhati) The Courts have held that appeals are not to be decided for giving 'one more innings' to the lower authorities in the appellate jurisdiction. i. Rajesh Babubhai Damania v. CIT [2001] 251 ITR 541/[2002] 122 Taxman 614 (Guj.) ii. CIT v. Harikishan Jethalal Patel [1987] 168 ITR 472/33 Taxman 217 (Guj.) Remand not for the benefit of the party seeking it to fill up gaps. 16. Even the Hon'ble Karnataka High Court in the case of Karnataka Wakf Board v. State of Karnataka, reported in AIR 1996 Kar. 55 at pages 63 64 held as under: Where the party had an opportunity of adducing evidence in the case but with open eyes failed to adduce that evidence, the case should not be remanded to give a second chance to the party to adduce that evidence. The policy of the law is that once that matter has been fairly tried ..... X X X X Extracts X X X X X X X X Extracts X X X X
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