Income Tax Appellate Tribunal - Delhi
Hans Raj Smarak Society, New Delhi vs Assessee on 12 September, 2011
IN THE INCOME TAX APPELLATE TRIBUNAL
(DELHI BENCH 'C' NEW DELHI)
BEFORE SHRI C.L. SETHI, JUDICIAL MEMBER &
SHRI K.G. BANSAL, ACCOUNTANT MEMBER
I.T.A. No.882/Del/2011
Assessment year : 2007-08
Hans Raj Samarak Society, Asstt. Director of Income-tax
J-5/2, Krishna Nagar, Vs. (Exemptions), Trust Circle-II,
Delhi-51. Laxmi Nagar, Delhi.
PAN- AAATH0351B
ITA No. 1213(Del)/2011
Assessment year : 2007-08
Asstt. Director of Income-tax Hans Raj Samarak Society,
(E), Laxmi Nagar, Delhi. Vs. J5/2, Krishna Nagar, Delhi.
AND
C.O. No. 102(Del)/2011
(Arising out of I.T.A. No.1213/Del/2011)
Assessment year : 2007-08
Hans Raj Samarak Society, Asstt. Director of Income-tax
J-5/2, Krishna Nagar, Vs. (Exemptions), Laxmi Nagar,
Delhi-51. Delhi.
(Applicant) (Respondent)
Assessee by : Mrs. Vibha Mahajan Seth, Advocate
Shri M.K. Mahajan, FCA
Respondent by : Shri Salil Mishra, Sr. DR
Contd. Page 2
2 ITA Nos.882 & 1213(Del)/2011
& C.O. No. 102(Del)/2011
Date of hearing: 12-09-2011
Date of pronouncement: 30-09-2011
ORDER
PER K.G. BANSAL: AM The assessee-society had filed its return on 24.10.2007 declaring nil income. It was picked up for scrutiny by issuing notice u/s 143(2) on 01.09.2008. It was found that the assessee-society had been registered u/s 12A(a) on 20.04.1968 and it had also been granted approval u/s 80G on 08.03.2007 for the period 01.09.2006 to 31.03.2009. The society is running Hans Raj Middle School at Krishna Nagar and Hans Raj Samarak Senior Secondary School at Dilshad Garden, Delhi. The AO made two additions of Rs. 19,25,047/- and Rs. 3,37,841/- in respect of donations considered as unexplained credits u/s 68 of the Income-tax Act, 1961 ('the Act' for short). Further, he denied the benefit of accumulation of income u/s 11(2) and deduction in respect of application of income by way of capital expenditure. Thus, the total income was computed at Rs. 31,56,990/-. 1.1 In respect of addition of Rs. 19,25,047/-, it has been mentioned in the assessment that a sum of Rs. 20,39,547/- was credited to the building fund account. The assessee filed confirmation letters covering the amount of Rs. 1,14,500/-. In respect of the balance amount, the assessee 3 ITA Nos.882 & 1213(Del)/2011 & C.O. No. 102(Del)/2011 expressed inability to collect letters of confirmations from the donors. This shows that it does not maintain record of the donor. Cash vouchers could not be produced in support of the credit made in the books by way of cash donations. Thus, out of total donations of Rs.20,39,547/-, the amount of Rs. 19,25,047/- was considered as anonymous donation liable to be taxed u/s 115BBC of the Act.
1.2 In respect of the amount of Rs. 3,37,841/-, it was found that the amount received as donation as per receipt book was not entered in income and expenditure account. The discrepancy were attributed to a computer snag. An affidavit from the Accountant was filed in this behalf. The AO rejected the affidavit on the ground that it has not been sworn by the President or the secretary of the society. Therefore, the aforesaid sum has been treated as undisclosed income.
1.3 Coming to the claim of accumulation of income u/s 11(2), it is mentioned that a copy of undated resolution was filed to the effect that the society has decided to exercise its option to spend the amount in subsequent years. The resolution has been held to be vague in content. It is further mentioned that form no. 10, required to be submitted for availing 4 ITA Nos.882 & 1213(Del)/2011 & C.O. No. 102(Del)/2011 the benefit of section 11(2), has not been filed. Therefore, the claim has been rejected.
1.4 Lastly, in respect of denial of capital expenditure of Rs. 14,53,112/-, it has been mentioned that the assessee has claimed the deduction in respect of donations, which have not been proved and which are anonymous in character. Therefore, the deduction has been denied.
2. Aggrieved by this order, the assessee filed appeal before the CIT(Appeals)-XII, New Delhi, which was disposed off on 14.12.2010. The appeal was partly allowed. We will come to the contents of this order at appropriate place.
3. Aggrieved by this order, the assessee has taken up three substantive grounds in the appeal. The revenue in its cross appeal, has assailed the finding of the ld. CIT(Appeals) in respect of grant of deduction u/s 11(1) holding that purchase of capital asset amounts to application of income u/s 11(1). The assessee has also filed a cross objection supporting the order of the ld. CIT(Appeals) in regard to his findings on purchase of capital asset.
5 ITA Nos.882 & 1213(Del)/2011
& C.O. No. 102(Del)/2011 3.1 We start with the appeal of the assessee at the first instance. ITA No. 882(Del)/2011
4. Ground no. 3 is that the ld. CIT(A) erred in holding that the sum of Rs. 19,25,047/- is the income of the assessee liable to be taxed u/s 115BBC of the Act. This matter has been discussed in the impugned order in various sub-paragraphs of paragraph no. 6, dealing with third and fourth grounds before the ld. CIT(A). It is mentioned that the AO observed that the assessee has not maintained evidence regarding the identity of the donor, therefore, the provision contained in section 115BBC is applicable. It is further observed that the donations have been recorded in a manner to show that these have been received from different donors and from different parts of India. However, the receipts were issued from one book. Therefore, it has been held that the donations are bogus. In this connection, a copy of receipt -payment account was required to be filed. The same could not be filed before the AO on account of virus in the computer. The assessee could not submit evidence regarding identity of donors also. The position continues to be the same in the 6 ITA Nos.882 & 1213(Del)/2011 & C.O. No. 102(Del)/2011 appellate proceedings. Therefore, it has been held that the provisions of section 115BBC are applicable.
4.1 Before us, the ld. counsel for the assessee referred to page no. 118 of the paper book, which shows the excess of income over expenditure at about Rs. 6.98 lakh. The account does not show credit of any donation. Thereafter, she referred to page nos. 93 to 112, which show donations aggregating to Rs. 7,97,100/- from 219 parties received in this year. She also referred to page nos. 57 and 58 of the paper book, an affidavit of Shri Rajiv Gupta, the accountant of the assessee-society. It is inter-alia deposed that donations totaling to Rs. 20,39,547/- were received by the society in cash as well as by cheque and the same were recorded in the books of account. The receipt issued for donations show the name and address of the donor. These details are entered in the computer also. Survey was conducted at the premises of the society on 30.01.2008. A print-out of building fund donation was taken out showing receipt of donations aggregating to Rs. 9,03,700/- from 258 persons. Thereafter, the computer developed snag on account of virus. The data was sought to be retrieved with the help of an expert and three lists of donations of Rs. 3,23,341/-, Rs.9,19,106/- and Rs.7,97,100/-, aggregating 7 ITA Nos.882 & 1213(Del)/2011 & C.O. No. 102(Del)/2011 to Rs. 20,39,547/- could be printed. These were submitted to the AO. While going through the list of donation amounting to Rs. 9,03,700/- obtained from the AO, it was found that there were certain discrepancies. Thus, it has been deposed that the list of donations submitted to the survey team on 30.01.2008 is correct and the list submitted in the course of assessment is not correct in respect of receipt nos. 904 to1000 because the data got corrupted due to virus. It is affirmed that all the donations received in this year by way of cheque or in cash have been recorded in the books. On the basis of this deposition, the case of the ld. counsel is that all donations including the one received under "building fund" have been correctly accounted for although there may be some error in the computer data. These are all normal donations and none of them is towards the corpus fund. The donations have been used towards the objects of the society which are educational and medical in nature. The assessee was not able to secure confirmation from all the parties but during the course of assessment proceedings, confirmations covering an amount of Rs. 8,90,000/- (Rs. 7,76,400/- and Rs. 1,14,500/-), were filed before the receipt of the notice and after the receipt of the notice respectively. It is argued that the donations are not anonymous as name and address have been maintained, which can be seen from the donation receipts, which are in 8 ITA Nos.882 & 1213(Del)/2011 & C.O. No. 102(Del)/2011 possession of the revenue. Therefore, the provision contained in section 115BBC is not applicable as the case is covered in the exception provided in section115BBC(2)(b).
4.2 In reply, the ld. DR submitted that the AO has made a total addition of Rs. 19,25,047/- in respect of anonymous donation. He has held that this amount is liable to be taxed u/s 115BBC. The provision contained in section 115BBC is applicable to the facts of the case as enquiries made by the AO do not lead to establishment of the identity of the donor. While deciding this issue, the provision contained in section 13(7) has also to be taken into account, namely, that the provisions contained in section 11 or 12 shall not be applicable so as to exclude anonymous donations from the total income. Thus, as this provision is applicable, the deduction cannot be granted under the aforesaid provision.
4.3 We have considered the facts of the case and submissions made before us. The AO has made addition of Rs. 19,25,047/- and it has been mentioned that a sum of Rs. 20,39,547/- was introduced in the balance- sheet by crediting the amount to the building fund. The income has been 9 ITA Nos.882 & 1213(Del)/2011 & C.O. No. 102(Del)/2011 offered for taxation as receipt in the computation. The provisions contained in section 68 are applicable as the assessee has not furnished confirmation to establish identity and genuineness of the transactions. Notices were issued in the course of hearing and confirmations were received from 10 donors covering an amount of Rs. 1,14,500/-. The balance amount of Rs. 19,25,047/- has been taxed u/s 115BBC. The question before us is-whether, the donations are anonymous donations as understood in the aforesaid provision?
4.4 Sub-section (1) of the aforesaid provision provides that where the income of an institution etc. referred to in section 11 includes income by way of anonymous donation, the income-tax payable by it shall be aggregate of-(i) 30% of the anonymous donation, and (ii) the income-tax payable on the total income as reduced by anonymous donation. Sub- section (2) excludes wholly religious institutions from the purview of the aforesaid provision. It further excludes wholly religious and charitable institutions from the purview of the aforesaid provision if the anonymous donation is made with the specific direction that such donation is for purposes other than for any university, educational institution, hospital or medical institution. It is clear that this provision excludes religious 10 ITA Nos.882 & 1213(Del)/2011 & C.O. No. 102(Del)/2011 institution and institution whose objects are wholly religious and charitable. Sub-section (3) defines the expression "anonymous donation" in an exhaustive manner to be a case where the institution etc. does not maintain record of identity indicating the name and address of the person making the contribution. No further particulars remained to be maintained have been prescribed under this sub-section. The learned DR has relied on the Board circular no. 14, (2007) 288 ITR (St.) 9, titled as "Finance Act, 2006-Explanatory Notes on provisions relating to direct taxes:. Paragraph no. 25(2) is important in this respect. It is mentioned that with a view to prevent channelisation of unaccounted money by way of anonymous donation, a new provision has been inserted to tax anonymous donations in respect of a wholly charitable institution etc. @ 30%. However, anonymous donation made to wholly charitable and religious institutions etc. shall be taxed only if it is for any university, educational institution, hospital or medical institution. Anonymous donations to wholly religious trust will not be taxed. In paragraph no. 25.3, a reference is made to the definition of the expression "anonymous donation" as the contribution in respect of which record of identity is not maintained indicating the name and address of the person. At this juncture, we may also refer to the provision contained in section 13(7). It excludes the applicability of the 11 ITA Nos.882 & 1213(Del)/2011 & C.O. No. 102(Del)/2011 provision contained in sections 11 and 12 in respect of anonymous donations. On consideration of various provisions applicable to the issue at hand, we find that the definition of the expression "anonymous donation" requires proper interpretation. This expression has been defined in an exhaustive manner and, therefore, no other word can be read in section 115BBC(3) other than the words finding place therein. The definition is that it means a voluntary contribution referred to in section 2(24)(iia), where a person receiving such contribution does not maintain a record of the identity indicating the name and address of the contributor and such other particulars as may be prescribed. No other particular has been prescribed under this provision. Therefore, the receiver has the obligation to maintain the identity indicating the name and address only and nothing more. The ld. counsel has clearly brought out that both the details are mentioned in the donation receipts. These receipts are still in the custody of the department as the receipt books were impounded in the course of survey. This fact has not been rebutted by the ld. DR. The AO has taxed the amount by mentioning that confirmation letters from the donors have not been filed. Such confirmations are not required to be filed for coming to the conclusion as to whether the donation was anonymous or not. Therefore, the case of the revenue regarding taxation of this amount 12 ITA Nos.882 & 1213(Del)/2011 & C.O. No. 102(Del)/2011 under sub-section (2) fails on this ground itself. Further, the assessee had shown the amount under the building fund, but at the time of filing the return, this amount was added to the income. In the case of Director of Income-tax (Exemptions) Vs. Keshav Social & Charitable Foundation, (2005) 278 ITR 152 (Del), it has been held that section 68 has no application because the assessee had disclosed the donation of Rs. 18,24,000/- as its income and it cannot be disputed that all receipts other than corpus donation would be the income in the hands of the n assessee. There was, therefore, full disclosure of income and its application for charitable purposes. In view of this decision, the provisions contained in section 68 cannot be invoked as the amount has already been disclosed as income. Following this decision, it is held that the amount of Rs. 19,25,047/- was taxable as income in the hands of the assessee.
5. Ground no. 2 is that the ld. CIT(A) erred in upholding the addition of Rs. 3,37,841/- as unexplained cash credit u/s 68 of the Act. It is mentioned by the ld. CIT(Appeals) that the donation receipt book, which was impounded in the course of survey u/s 133A, shows that the assessee had been collecting funds, some of which were not accounted for in the regular books of account. The explanation is that this happened because 13 ITA Nos.882 & 1213(Del)/2011 & C.O. No. 102(Del)/2011 of snag in the computer. Since these entries have not been reflected in income and expenditure account, the amount is includible in the total income.
5.1 Before us, the ld. counsel submitted that the aforesaid amount consists of two sums of Rs. 88,841/- and Rs. 2,49,000/-. The amount of Rs. 88,841/- was entered in the balance-sheet as building fund in the overall sum of about Rs. 20.39 lakh. The assessee has already added back the aforesaid sum to the total income in the computation. This leaves with the balance of Rs. 2,49,000/-. The details of the donations of Rs. 20,39,547/- have been placed in the paper book on page nos. 129 to 136. 30 items aggregating to Rs. 88,841/- have been separately marked and serial numbered. Since the whole of the amount of Rs. 20,39,547/- has been included in the total income, no further addition of Rs. 88,841/- can be made. The other amount of Rs. 2,49,000/- remains to be included because of the fact that computer data was corrupted. This fact is supported by the affidavit of the accountant of the assessee-society. This affidavit has already been noted earlier. It is inter-alia mentioned that the list of donations submitted to the survey party on 30.01.2008 is correct and the list of donations submitted to the AO is not correct to the extent of receipt 14 ITA Nos.882 & 1213(Del)/2011 & C.O. No. 102(Del)/2011 nos. 904 to 1000. This has happened due to virus in the computer. In reply, the ld. DR repeated the facts and submitted that the amount of Rs. 3,37,841/- is not reflected in income and expenditure account. 5.2 We have considered the facts of the case and submissions made before us. On perusal of record, it is found that the assessee has added a sum of Rs. 20,39,547/- to the total income representing donations towards building fund. This consists of donations of Rs. 19.25 lakh taken by the assessing officer to be covered u/s 115BBC. Therefore, the submission of the ld. counsel that the assessee has already offered for taxation a sum of Rs. 88,841/- for taxation is correct. Accordingly, only a sum of Rs. 2,49,000/- is required to be added further to the total income. We may reiterate that the provisions of section 68 are not applicable at all in so far as the sum of Rs. 88,841/- is concerned. The other amount of Rs. 2,49,000/- also does not lose the character of donation as the details of the amount are contained in the receipt book in the list supplied to the survey party. However, this amount remained to be included in the total income because of subsequent malfunctioning of the computer on account of virus. This cannot change the character of the receipt. Therefore, in the light of the decision of Hon'ble Delhi High Court in the case of Keshav 15 ITA Nos.882 & 1213(Del)/2011 & C.O. No. 102(Del)/2011 Social & Charitable Foundation (supra), it is held that both these amounts are income from property held for charitable purpose. It may be mentioned here that the aforesaid decision of Hon'ble Delhi High Court has been followed in the case of the assessee by the "C" Bench of Delhi Tribunal in appeals for assessment year 2006-07. Following this decision, it is held that a sum of Rs. 2,49,000/- is includible in the total income on account of donation. Thus, this ground is partly allowed.
6. Ground no. 4 is that the ld. CIT(Appeals) erred in not considering the additional ground regarding accumulation of income of Rs. 11,44,605/- u/s 11(2) of the Act. The AO has denied this benefit on the ground that form no. 10 has not been filed and the undated resolution is vague. The ld. CIT(Appeals) has not decided this ground although an additional ground was statedly taken before him in this matter. In absence of any decision from him, it is taken that the ground has been decided against the assessee.
6.1 The ld. counsel drew our attention to page no. 114 of the paper book, which is the undated resolution signed by the president and the secretary. It was decided to exercise option to spend the balance amount 16 ITA Nos.882 & 1213(Del)/2011 & C.O. No. 102(Del)/2011 of income remaining unspent beyond the permissible limit of 15% u/s 11(2) of the Act for the year ended on 31.03.2007 in the subsequent year. It was further resolved that such unspent amount shall be utilized in subsequent years as provided in the Income-tax Act for attainment of objects of the society. Further, she drew our attention to page no. 116 of the paper book, which is the annexure to the audit report. In column no. 2 regarding whether the trust has exercised the option u/s 11(1) [should be read as 11(2)] and if so the details of the amount of income deemed to have been applied to charitable or religious purposes in India during the year, a sum of Rs. 11,46,605/- is mentioned. She also filed the prescribed form no. 10 dated 26.08.2011 before us for accumulation of the unspent income for the attainment of objects of the society for five years. In the course of hearing, her attention was drawn towards the decision of Supreme Court in the case of CIT Vs. Nagpur Hotel Owners' Association, (2001) 247 ITR
201. It is submitted that the society had passed a resolution. The details had been furnished in the audit report. An additional ground had also been taken before the ld. CIT(A) on 03.11.2010 in this behalf. Therefore, the conditions contained in section 11(2) were substantially complied with even before the completion of the assessment. The decision in the case of Nagpur Hotel Owners' Association is to the effect that even if 17 ITA Nos.882 & 1213(Del)/2011 & C.O. No. 102(Del)/2011 there is no valid limitation prescribed under the Act and the Rules, it is reasonable to presume that intimation required u/s 11 has to be furnished before the assessing authority to complete the assessment because such requirement is mandatory and without such particulars the assessing authority cannot entertain the claim of the assessee, therefore, the compliance will have to be at any time before completion of assessment proceedings. It is further mentioned that it is necessary that the AO must have this information at the time he completes the assessment. It is argued that the judgment speaks about the information and such information was there before the Assessing Officer. If there is any technical deficiency, the Tribunal may fill the same in view of form no. 10 now filed on 26.08.2011.
6.2 In reply, the ld. DR submitted that it is mandatory to file form no. 10 before the completion of the assessment. The form contains important details regarding the amount to be accumulated, the purpose of accumulation and the period of accumulation. All these details were not there before the AO. Further, the word "information" used by the Hon'ble Supreme Court subsequently refers to information in statutory form no. 10 18 ITA Nos.882 & 1213(Del)/2011 & C.O. No. 102(Del)/2011 prescribed under Rule 17, as clearly mentioned in earlier part of the judgment. This has not been done.
6.3 We have considered the facts of the case and submissions made before us. Section 11(2) permits the accumulation of income at the option of the person receiving the income provided that-(a) a notice in writing is given by the AO in the prescribed manner specifying the amount of income sought to be accumulated, the purpose for which income is accumulated or set apart and the period for which income is to be so accumulated or set apart, and (b) the money so accumulated or set apart is invested or deposited in the forms or modes specified in sub-section (5). This provision does not specify the time limit for submitting the application in form no. 10. The controversy about time limit reached up to the Hon'ble Supreme Court in the aforesaid case, which held as under:-
"It is abundantly clear from the wordings of sub-section (2) of Section 11 that it is mandatory for the person claiming the benefit of Section 11 to intimate to the assessing authority the particulars required, under Rule 17 in Form No.10 of the Act. If during the assessment proceedings the Assessing Officer does not have the necessary information, question of excluding such income from assessment does not arise at all. As a matter of fact, this benefit of excluding this particular part of the income from the net of taxation arises from Section 11 and is subjected to the conditions specified therein. Therefore, it is necessary that the assessing authority must have this information at the time he completes the assessment. In the absence of any such 19 ITA Nos.882 & 1213(Del)/2011 & C.O. No. 102(Del)/2011 information, it will not be possible for the assessing authority to give the assessee the benefit of such exclusion and once the assessment is so completed, in our opinion, it would be futile to find fault with the assessing authority for having included such income in the assessable income of the assessee. Therefore, even assuming that there is no valid limitation prescribed under the Act and the Rules even then, in our opinion, it is reasonable to presume that the intimation required under Section 11 has to be furnished before the assessing authority completes the concerned assessment because such requirement is mandatory and without the particulars of this income the assessing authority cannot entertain the claim of the assessee under Section 11 of the Act, therefore, compliance of the requirement of the Act will have to be any time before the assessment proceedings. Further, any claim for giving the benefit of Section 11 on the basis of information supplied subsequent to the completion of assessment would mean that the assessment order will have to be reopened. In our opinion, the Act does not contemplate such reopening of the assessment. In the case in hand it is evident from the records of the case the respondent did not furnish the required information till after the assessments for the relevant years were completed. In the light of the above, we are of the opinion that the stand of the Revenue that the High Court erred in answering the first question in favour of the assessee is correct, and we reverse that finding and answer the said question in the negative and against the assessee. In view of our answer to the first question, we agree with Mr. Verma that it is not necessary to answer the second question on the facts of this case. In view of the above findings of ours, the second question referred will not arise for consideration. Accordingly these appeals are allowed."
6.4 From the statutory language read with this decision, it becomes clear that intimation in form no. 10, under Rule 17, setting out the prescribed particulars has to be furnished before the completion of the assessment because it is necessary that AO must have this information at 20 ITA Nos.882 & 1213(Del)/2011 & C.O. No. 102(Del)/2011 that time so as to enable him to compute the total income. In absence of such information, he will not be in a position to grant the benefit. Once the assessment is completed, it would be futile to find fault with the Assessing Officer for having included such income in the total income. To our mind, the word "information", used in the judgment, stands already qualified by the information in form no. 10 under Rule 17. It is still more clear when we look at the contents of form no. 10, which contains stipulation regarding the amount of income to be set apart, the period of accumulation and the purpose for which the income is accumulated or set apart. Filing of the form before assessment is not an empty formality because it is necessary to take into account its contents for computing the income. In a way it becomes part of the return. Therefore, on the facts we are of the view that the lower authorities rightly refused the benefit of accumulation of income in absence of the filing of form no. 10 before completion of assessment. Filing of the form before us does not cure the lethal infirmity in the claim. Accordingly, ground no. 4 is dismissed. ITA No. 1213(Del)/2011
7. We now turn to the appeal of the revenue. The solitary ground is that the ld. CIT(Appeals) erred in allowing deduction u/s 11(1) of an 21 ITA Nos.882 & 1213(Del)/2011 & C.O. No. 102(Del)/2011 amount of Rs. 14,53,112/-, being the expenditure incurred on purchase of capital assets. As mentioned earlier, the deduction was not allowed by the AO on his finding that unaccounted money by way of anonymous donation was used for the expenditure. It was submitted before the ld. CIT(Appeals) that the purchase of fixed assets is an application of income, thus, the expenditure has to be deducted u/s 11(1)(a). The ld. CIT(Appeals) considered the facts and the submissions made before him. It is mentioned that the taxation of anonymous donation amounting to Rs. 3,37,841/- and Rs. 19,45,812/- u/s 115BBC has no bearing in the matter as the tax on anonymous donation is levied separately. However, the amount spent on purchase of capital assets has to be allowed in computing the total income as application of income. Therefore, this ground has been decided in favour of the assessee.
7.1 The ld. DR submitted that the ld. CIT(Appeals) erred in coming to this conclusion in as much as he did not take into account the provision contained in section 13(7). This provision prohibits deduction under section 11(1)(a) in respect of anonymous donations. On the other hand, the ld. counsel for the assessee relied on the decision of the ld. 22 ITA Nos.882 & 1213(Del)/2011
& C.O. No. 102(Del)/2011 CIT(Appeals) and the submissions made before us regarding the anonymous donation.
7.2 We have considered the facts of the case and submissions made before us. It has already been held by us that the donations received by the assessee are not anonymous donations. The details in respect of the name and address are available in possession of the AO in the form of donation receipts, which were impounded in the course of survey. The discrepancy in respect of the amount of Rs. 2,49,000/- has occurred on account of computer malfunctioning, but the details as above are available in the donation receipts. Therefore, no donation can be said to be anonymous. We have also not accepted the case of the revenue that the amounts are taxable u/s 68 by relying on the decision in the case of Keshav Social Charitable Foundation and the decision of the Tribunal in the case of the assessee itself for assessment year 2006-07. These findings displace the foundation of disallowance made by the AO. Accordingly, it is held that the ld. CIT(Appeals) rightly allowed the deduction. 23 ITA Nos.882 & 1213(Del)/2011
& C.O. No. 102(Del)/2011 C.O. No. 102(Del)/2011
8. The cross objection is in support of the decision of the ld. CIT(Appeals) in respect of deduction of Rs. 14,53,112/-, being expenditure on purchase of capital assets. This matter has already been decided in favour of the assessee in the cross appeal filed by the revenue (supra).
9. In the result:
(i) the appeal of the assessee is partly allowed;
(ii) the appeal of the revenue is dismissed; and
(iii) the cross objection of the assessee is allowed.
Sd/- sd/-
(C.L. Sethi) (K.G.Bansal)
Judicial Member Accountant Member
SP Satia
Copy of the order forwarded to:-
Hans Raj Samarak Society, New Delhi.
Asstt. DIT(E), Trust Circle-II, Delhi.
CIT(A)
CIT
The DR, ITAT, New Delhi. Assistant Registrar.