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TMI Blog2024 (11) TMI 961X X X X Extracts X X X X X X X X Extracts X X X X ..... us casted upon it by producing all the details before the AO. AO without following the procedure and without providing proper opportunity to the assessee, doubted the genuineness of the donations and invoked the provisions of section 115BBC of the Act, which is not correct. CIT(A) after considering all the facts and explanation given by the assessee, deleted the addition. We find no infirmity in the order passed by the learned CIT(A). Addition being unspent grant shown in the Balance Sheet, but not shown as income in the Income Expenditure Account - HELD THAT:- As Tied up grants are not voluntary contribution and cannot be considered as Income . Form no.9A, is required to be filed under rule 17(1) of the Income Tax Rules, 1963. The requirement to file Form no.9A, arises only when application falls short of 85% of the income derived from the property held under the Trust. Once it is held that grants received under certain stipulated conditions, is not income, there is no requirement to file Form no.9A. Acquiescence on the part of the assessee cannot be held against them as there is no estoppel against the statute. So, the Assessing Officer had fallen under wrong premise to add which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... first quarter of subsequent financial year and refundable in case not utilised as per the sanction of NABARD. The Assessing Officer added this amount for the reason that the assessee had treated NABARD's TDF grants as liability and delayed in filling Form 9A for the year under consideration. As per Para 5.5 of the assessment order, the Assessing Officer also made addition under section 115BBC of the Act treating ₹ 8,33,380, as anonymous donation for the reason that the donation of ₹ 56,000, ₹ 2,69,104 and ₹ 5,08,276, remained unverified due to donation denied by the persons, insufficient address and no reply received from the donors. The Assessing Officer thus held that the total donation of ₹ 8,33,380 are not genuine and remained unexplained and made addition of ₹ 5,30,250 as anonymus donation as per calculation prescribed under section 115BBC of the Act. The assessee trust being aggrieved, filed appeal before the first appellate authority. 4. The learned CIT(A) the addition of ₹ 2,10,99,102, is concerned, the learned CIT(A) deleted the addition by observing as under: 6.5. Thus, once the grant is received from Government Agency with ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant has not maintained address in many cases and the address. maintained in some of the cases are not correct. Further, on verification it was found that the names mentioned by the appellant as donors have actually not made any donation. Thus, on the basis of the fact of the present case, the case law cited by the appellant is not applicable. 6.6. In case of Madhavi Raksha Sankalp Nirmal Niketan 165 ITO 627 (Mumbai) Tribunal) has held that onus as well as burden of proof is entirely on the assessee to provide to the Assessing Officer as to the compliance of Section 115BBC and as to genuineness of the said donation and if the assessee failed to do so. the entire transaction will be hit by provisions of Section 115BBC. 6.7. Also, Hon'ble ITAT, Mumbai Bench in case of Madhavi Raksha Sankalp Nirmal Niketan v. Dy. CIT [2017] 83 Taxmann.com 316 (Mumbai Tribunal) held that burden of proof is entirely on the assessee to provide to the Assessing Officer all details to his satisfaction as to compliance of Section 115BBC and the genuineness of the said donations failing which entire transactions will be hit by provisions of Section 115BBC. 6.8. In view of the above discussions, I u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yment of donations to the assessee and opportunity should have been given to cross examine these two donors. Simply believing the statement of the donors, the Assessing Officer was not correct to doubt the entire donations paid to the assessee. 15. Insofar as 76 donors are concerned, these donors have confirmed having paid the donations to the assessee Trust. If the Assessing Officer has any doubt regarding payment of donations, he should have been called further details to substantiate the same. Without doing so, the Assessing Officer has doubted the statements of 76 donors on the ground that all the 76 donors are closely connected to the assessee Trust, but these donors are living in different places. In this regard, we find that there is nothing on record to show that these 76 donors, who made payment of donation to the assessee trust, are closely connected to the assessee. Even the Assessing Officer has not discussed anything in this regard. Even assuming for a while that these 76 donors are connected to the assessee Trust, but there is no bar under any law to give donation by closely related person. It is merely suspicion in the mind of the Assessing Officer who doubted the tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tails of the donors and enquiry made by the Assessing Officer, the Assessing Officer cannot doubt the donors. We also find that some of the donors appeared before the Assessing Officer and stated that they had paid the donations. Some of them had filed confirmation stating that they paid donation to the assessee trust. A few of them did not appear before the Assessing Officer. The Assessing Officer without giving opportunity to the assessee to produce the donors before the Assessing Officer, simply doubted the entire donation received by the assessee as not genuine. In our opinion, the Assessing Officer was not correct in doubting the entire donations as not genuine. Insofar as application of provisions of section 115BBC of the Act is concerned, the same is reproduced below: Anonymous donations to be taxed in certain cases. 115BBC. (1) Where the total income of an assessee, being a person in receipt of income on behalf of any university or other educational institution referred to in sub-clause (iiiad) or sub-clause (vi) or any hospital or other institution referred to in sub-clause (iiiae) or sub-clause (via) or any fund or institution referred to in sub-clause (iv) or any trust o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he procedure and without providing proper opportunity to the assessee, doubted the genuineness of the donations and invoked the provisions of section 115BBC of the Act, which is not correct. The learned CIT(A) after considering all the facts and explanation given by the assessee, deleted the addition. We find no infirmity in the order passed by the learned CIT(A). Consequently, we uphold the order passed by the learned CIT(A) and dismiss the grounds of appeal raised by the Revenue. 20. In the result, appeal filed by the Revenue is dismissed. 7. Since the issue before us for our adjudication in this appeal being common, consistent with the view taken as aforesaid, respectfully following the finding given therein, we set aside the impugned order passed by the learned CIT(A) and delete the addition of ₹ 5,90,250, made under section 115BBC of the Act. Thus, this ground is allowed. 8. In the result, appeal filed by the assessee is allowed. ITA no.166/Nag./2023 Revenue s Appeal A.Y. 2017 18 9. The Revenue has raised following grounds: 1. On facts and circumstance of the case, the Ld. Commissioner of Income Tax(Appeals) (hereinafter CIT(A) in short] erred in directing the Assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts reply on 28/10/2019. The Assessing Officer, while going through the assessee's submission, observed that the assessee had filed Form no.9A, on 24/10/2019 for ₹ 2,10,99,102, which was after the due date of filing of return of income. He further observed that the assessee had not claimed deemed application of income in its return of income and not mentioned about the same in its Audit Report in Form no.10B. In view of the above, the claim of deemed application of income of ₹ 2,10,99,102, was not allowed by the Assessing Officer and added it to the total income of the assessee. 11. The Assessing Officer further observed that assessee had claimed donation from general public at ₹ 48,62,600. It was observed that 15 donors had paid donation of ₹ 13,58,000, through cheque and 409 donors had paid ₹ 35,04,600, in cash. As per the list of donors submitted by the assessee, the Assessing Officer issued notices under section 133(6) of the Act to the donors who had paid donation in cash. After the enquiry, the Assessing Officer sought explanation from the assessee to show cause as to why the donation of ₹ 18,68,892, should not be treated as anonymous do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 24/10/2019, and subsequently filed application for condonation of delay in filing Form no.9A, with the learned CIT(E), Pune, in terms of CBDT Circular dated 19/02/2020. The Assessing Officer had observed that the assessee had not treated this amount as its income and not filed Form no.9A, with its return of income for the assessment year 2017-18. The Ld. CIT(A) relied upon the decision of ITAT, Lucknow, in ACIT(E) v/s Rajeev Gandhi Institute of Petroleum Technology, wherein it is held that once a grant is received from Government Agency with certain conditions and stipulations provided therein and the purpose for utilization is specified then that grant cannot be the income of the assessee. If such grant is not utilized for specific purpose then automatically it has to be refunded back again to the Government Agency . On the basis of fact and circumstances of the case, the learned CIT(A) held that the assessee is not liable for tax on NABARD advance grants as it is received for specific purposes and it is to be refunded to NABARD, if not utilized. It further noted that the application for condonation of delay in filing Form no.9A, is pending with learned CIT(E), Pune, which was fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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