9911796707
TMI Blog2022 (12) TMI 751X X X X Extracts X X X X X X X X Extracts X X X X ..... 10. This is so because the due date of filing of the return of income was 30 September 2011 whereas the assessee filed its return of income only on 17/4/2012. Therefore, as per the assessee, the carry forward of losses is not allowable. The learned assessing officer has started. The computation of total income by showing the deficit of ₹ 5,30,22,672 and made an addition thereto of any anonymous donation of ₹ 55,204,903. There is no error in the computation because, the losses can be set-off for the same assessment year, even if the return of income is filed late. Therefore, to that extent. There is no error in the order of the learned AO. According to the provisions of Section 115BBC, on anonymous donation tax is required to be charged at the rate of 30% subject to certain deductions. The learned CIT did not invoke the provisions of Section 263 of the act for this reason. The only reason stated by the PCIT is that the learned assessing officer has granted set off deficit of the assessee trust against the anonymous donation. We are of the view that both these things are different. One is the manner of computation of total income and 2nd is manner of chargeability ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in holding that Appellant cannot get benefit of loss or deficit if wrong form of ITR is filed i.e. ITR Form No. 7 when no benefit under Sec. 11 or 10 (23C) is claimed. (b). The Ld. CIT(E) ought to have appreciated that wrong filing of ITR is defect curable under Section 292B of the Income Tax Act. The Ld. CIT(E) has also failed to appreciate that even though the wrong form of ITR was statutory relief and benefits otherwise allowable cannot be to be denied to the Appellant. (6) On the facts of the case and in law, the Ld. CIT(E) has erred by fail to appreciate that Appellant is out of the purview of Sec. 115BC of the Act and that Section 115BBC is not applicable to AOP s but only to those Persons i.e., who claims benefit of exemption under Section 10(23C) or 11 of the Act. (7) On the Facts of the case and in law, the Ld.CIT(E) ought to have given finding on the legal issue whether Sec. 115BBC applies to Appellant as it goes to the roots of the matter. (8) On the facts of the case and in law, the Ld.CIT(E) has erred in holding that filing of Receipt and Payment a/c instead of Profit and Loss account is erroneous so far as its prejudicial to interest of Revenue. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 27.04.2018 requesting to treat return filed originally as return u/s. 148 of the Act. Subsequently, assessment u/s. 143(3) r.w.s 147 of the Act was passed by the ld. Assessing Officer on 14.12.2018 wherein the addition of ₹ 05,52,04,903/- was made u/s. 115BBC as anonymous donations. Accordingly, against the deficit of ₹ 05,30,22,672/- income of the assessee was determined at ₹ 21,82,231/-. 7. This order was challenged by the assessee before the CIT(A)-1 Mumbai by filling Form No. 35. The assessee has challenged reopening of the assessment as well as the addition on the merits of the case. The assessee filed appeal on 19.03.2019. Same is pending before the ld. CIT (A) for adjudication. 8. Meanwhile, the ld.CIT exemption examining the record issues show cause notice that order passed by the ld. Assessing Officer is erroneous in So far as it is prejudicial to the interest of revenue in the following manner. (a) On perusal of the records it is seen that the AO has not made enquiry regarding cash donation and corpus donation. In this case assessee has not claimed exemption us/.s 11, then the Return filed by it in ITR-7 itself is an invalid Return, and therefor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. 9. Show cause notice issued on 09.03.2021 , assessee submitted its reply on 18.03.2021 stating as under: i. The ld. Assessing Officer has completely examined the issue as per Paragraph No. 5-6 of the assessment order therefore, it is completely incorrect to state that AO has not made adequate enquiries it was further stated that several notices in the re-assessment proceedings were issued and same were replied by the AO. It was further stated that AO has made in depth enquiry on the issue of anonymous donations and therefore the assessment order cannot be held to be erroneous. ii. It was further stated that merely because ITR 7 wasfiled by the assessee cannot be rejected. iii. It was also stated that with respect to the unsecured loan assessee is not required to take any permission because it was a secured loan taken from banks in A.Y. 2010-11 after obtaining permission of the charity commissioner and therefore, the question of the violation of Section 11 does not arise. iv. With respect to the consolidated balance sheet signed by the auditor is also not a relevant consideration. v. With respect to the donation, he submitted that the donation was received towar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is an AOP, Profit Loss Account should have been filed, On the contrary, Income Expenditure Account and Receipts and Payments account has been filed as would be done by a charitable entity. The AO has accepted all these discrepancies/anomalies without any verification/ inquiry whatsoever. 6.1 Hence, in view of the above glaring omissions by the AO, I find assessment order to be erroneous in so far as it is prejudicial to the revenue. I am not convinced by the arguments framed in the written submissions filed by the A/R as it has not been able to explain/justify the lack of verification as mentioned above. 7. In view of the facts and circumstances and legal precedence as narrated above, and by virtue of the powers vested in the undersigned vide provisions of Section 263 of the I.T. Act, 1961, the assessment order dated 14/12/2018 is set aside with a direction to AO to undertake assessment proceedings de novo. The assessment proceedings shall be completed after proper examination of all the relevant issues, and after giving the assessee reasonable opportunity of being heard. 11. Therefore, the assessee is aggrieved with that order and is in appeal before us. The ld. Au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uired to be charged at the rate of 30% on the aggregate amount of anonymous donation received. The assessee is also not entitled to set off the above sum of anonymous donation either from the carry forward of losses or depreciation. The learned AO has set off. The anonymous donation with the deficit and assessed the total income at ₹ 2,182,231. Thus, the deficit shown by the assessee of ₹ 53,022,672 has been adjusted against the anonymous donation of 5,52,04,903. This is the glaring error in the assessment order. This is also prejudicial to the interest of revenue. Thus, the order of the learned CIT is sustainable. v. On the issue of decision of Hon ble Madras High Court, he referred to the provisions of Section 263 and submitted that, if the issued is considered and decided in the appeal then only 263 cannot be made. Merely filing of the appeal cannot oust the jurisdiction of revisionary authority. Hence, decision of the Madras High Court does not apply to the facts of the case. 13. We have carefully considered the rival contentions and perused the order of the lower authorities. The facts of the case are required to be stated once again at the cost of repetiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the sum of ₹ 3000/ and ₹ 4500/ . However, on going through the same, it is seen that the said receipts contain details such as names, address and other relevant details. However, as mentioned above, all corpus donation letters are not filed. It is also seen that the donation amounts are ranging from ₹ 3000/ to ₹ 4500/ and, therefore, it is beyond comprehension that the assessee has received such a huge amounts of donation running in crores of rupees. By accepting the nominal amount of donation. The assessee has filed the small amount of donation receipts as a manufacture the documents, when asked to furnish the details. In view of the above, the donation of the assessee is far from convincing and is a cooked-up story, and, therefore, cannot be accepted. (c) The total corpus fund being building fund shown by the assessee to the extent of ₹ 55,204,903/ in the balance sheet. This donation of ₹ 55,204,903/ is treated as income of the assessee being donation received in cash being anonymous donation u/s 115B. BC of the IT act. (d) in view of the above, ₹ 55,204,903/ is treated as income of the assessee by way of an anonymous d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the persons making such contribution and such other particulars, as may be prescribed. The assessee has given the name and address of the persons making such contribution. Therefore, as per the assessment order itself, the amount of donation cannot be stated to be anonymous donation, according to the provisions of subsection (3) of that Section. 20. Further, the issue is pending of the above addition Before the learned CIT A. Where assessee has filed appeal on 14/12/2018. The issue challenged is reopening of the assessment and addition of cash donation u/s 115BBC of the act. According to the provisions of Section 263 of the act, if the issue is considered and decided by the appellate authority, the same cannot be revised u/s 263. However, mere pendency of an appeal before the appellate authority does not oust the jurisdiction of the learned CIT. Honourable Bombay High Court in case of Piramal investment opportunities fund vs ACIT (2019) 111 taxmann.com 5 (BOM), though with respect to the provisions of Section 154, which is similar to the provisions of Section 263, has held that the issue considered and decided is altogether different from pending consideration . In ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
