Case Law Details

Case Name : Madhavi Raksha Sankalp Nirmal Niketan Vs The Dy. Director of Income Tax (ITAT Mumbai)
Appeal Number : I.T.A. No.2746/Mum/2014
Date of Judgement/Order : 26/04/2017
Related Assessment Year : 2010-11
Courts : All ITAT (4266) ITAT Mumbai (1423)

Assessee-trust is registered u/s 12A of 1961 Act with DIT(E) , Mumbai bearing No. TR/25225 and also registered with Charity Commissioner, Mumbai. We have observed that the assessee has shown additions to corpus donations to the tune of Rs. 2,42,26,508/- . The assessee has submitted in paper book filed with the tribunal copies of some of such direction letters of donation issued by the donors whereby instructions are issued by the donors that the donations shall form part of the corpus of the trust.

The said letters of donations are placed in paper book page 35-123. The names of the donors were given in the said letters but the addresses and PAN of the donors were not given. These are standard letters which are identical for all the donors. The said letters contained the name of village/taluka/district and State of the donor but the addresses, father’s name and PAN of the donors are not there. Another peculiar feature is that it is a common direction letter issued by multiple donors ranging from 2-5 donors and Demand draft/Pay order mentioned in said common donation letter are also same being consolidated amount covered for the donation in the said letter as donated by 2-5 donors.

We find that assessee is not a religious trust hence the amount is hit by provisions of Section 115 BBC of the Act and the onus is on the assessee to prove that it is covered by exceptions to chargeability to tax as is provided by provisions of section 115BBC of 1961 Act, namely that the assessee maintained a record of the identity indicating the name and address of the person making such contribution and such other particulars as may be prescribed or else it is a religious trust.

The assessee in the instant case could not provide addresses, father’s name and PAN of the donors and the assessee is also not a religious trust to be covered under exception. The assessee has come forward with a request that if an opportunity is given to the assessee, the assessee can produce the donors before the AO as directed by the AO.

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It is also submitted that PAN and addresses of all the donors for verification by the A.O. will also be furnished for verification by the AO. Considering the factual matrix of the case , keeping in view the provisions of Section 1 15BBC of 1961 Act and in the interest of justice and fair play, we are of considered view that this matter needs to be set aside and restored to the file of the A.O for necessary enquiry and verification of the said donations so received by the assessee as to genuineness and also for verifying compliance of the relevant section 115BBC of 1961 Act.

The onus as well burden of proof is entirely on the assessee to provide to the AO all relevant details as contemplated under section 115BBC of 1961 Act to the satisfaction of the AO as to compliance of section 115BBC of 1961 Act and as to genuineness of the said donation.

The assessee is directed to furnish PAN , addresses and all other relevant details of all the said donors before the AO to satisfy mandate of Section 11 5BBC of 1961 Act. The assessee is directed to produce before the AO donors , 25% in numbers for donation up-to Rs 20,000/- and 10% in number for donations above Rs.20,000/- to satisfy the AO about compliance of mandate of Section 11 5BBC of the Act and genuineness of the such donations.

The selection of donors shall be on random basis at the sole discretion of the AO , which short listed list of donors shall be supplied by the AO to the assessee for necessary compliance as per our above directions. If so required for ensuring compliance of section 115BBC of 1961 Act and for establishing genuineness of the said donations of Rs. 2,42,26,508/-, the AO can enhance the number of persons to be produced by the assessee before him higher than minimum stipulated by us as above.

Similarly, with respect to the denial of the exemption amount to the tune of Rs. 1,35,70,000/- for 15% of income being set aside for accumulation to be spent for charitable purposes in the next year as provided u/s 11(1) of 1961 Act. The assessee had stated that the trust was actively considering launching of projects in the next year after plans are finalized and the amount so aside was spent in the next year.

In our considered view and in the interest of justice and fair play, this claim of the assessee that the said amount was kept for launching of project next year after plans are finalized and was spent in the next year accordingly also need verification and as such the matter is set aside and restored to the file of the A.O. for proper verification with respect to the contentions of the assessee to be decided by the AO in accordance with law.

Needless to say that proper and adequate opportunity of being heard shall be provided by the AO to the assessee in accordance with principles of natural justice in accordance with law. The evidences and contentions of the assessee in its defense shall be admitted by the AO in set aside proceedings in the interest of justice. We order accordingly.

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Category : Income Tax (25145)
Type : Judiciary (9970)
Tags : ITAT Judgments (4445) Trust (85)

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