PRAKASH KRISHNA, MANOJ KUMAR GUPTA, JJ. - (1.) HEARD Sri Shambhu Chopra, learned counsel for the appellant and Sri Nikhil Agrawal, learned counsel for the respondent.
(2.) THE present appeal has been filed under section 260A of the Income Tax Act against the order dated 28th of November, 2008 passed by the Income Tax Appellate Tribunal in ITA No.766/Luc/2008 (Departmental) C.O. No.65/Luc/08 (assessee) for the assessment year 2005 -2006. The background facts may be noticed in brief. The assessee filed return of nil income. The Assessing Officer made certain additions. The matter was carried in appeal before CIT (A) who allowed the appeal. The matter was carried further by the department in second appeal before the Tribunal. The Income Tax Appellate Tribunal by the order under appeal has dismissed the appeal and allowed the cross objection filed by the assessee partly.
(3.) SRI Shambhu Chopra, learned counsel for the appellant has reframed the questions of law involved in the appeal. According to him, the following substantial questions of law are involved in the appeal: - 1. "Whether on the facts and circumstances of the case and the materials on record, was the ITAT legally justified on facts and in the eyes of law to hold on merits that the Assessing Officer was not legally justified to make the additions under Section 68 of the I.T. Act of Rs.1,13,00,308/ - on account of bogus corpus donations; Rs.1,00,000/ - addition on account of corpus donation by cheque; Rs.35,91,371/ - addition on account of unexplained loan from members, Rs.10,80,000/ - addition on contribution received from members of the Society; Rs.8,35,000/ - addition on account of undisclosed receipts by way of capitation fees, since the assessee had disclosed these receipts as its income and hence no double addition could be made by the Assessing Officer? 2. Whether in the case of the assessee trust is the Assessing Officer legally unjustified in making any additions under Section 68 of the I.T. Act, when in fact, the assessee could not prove or establish fully the names and identity of the donors and whether such donations cannot be added merely because the assessee has shown them as its income? 3. Whether on the facts and in the circumstances of the case, the Hon'ble Tribunal was justified in law in deleting the aforesaid additions without appreciating the ratio of decision given by the Hon'ble ITAT Bench B Hyderabad in the case of Vodithala Education Society Vs. Assistant Director of Income Tax (Exemption). 2. Hyderabad - 2008 - (020) -SOT -0353 -THYD wherein reliance is placed on the judgments given by the Hon'ble Apex Court in the following cases. iv) Hon'ble Hon'ble Apex Court in the case of Miss Mohini Jail Vs. State of Karnatka (1992) 2 SCC - 666. v) Hon'ble Apex Court in the case of Islamic Academy of Education Vs. State of Karnatka (2003) 6 SCC -697. vi) Hon'ble Apex Court in the case of T.M.A. Pai Foundation Vs. State of Karnatka (2002) 8 SCC 0 481. 4. Whether on the facts and in the circumstances of the case, the Hon'ble Tribunal was justified in law in deleting the disallowance of Rs.1,74,207/ - made by the Assessing Officer on account of diversion of profits to M/s Deep Enterprises which is a proprietor -concern of President Shri Pran Veer Singh specified in the list of persons u/s 13(3) of the Act without appreciating that the work was actually got done by the society and the books of accounts were manipulated showing that the work was done through HUF concern of its Society. ;