2025 (9) TMI 777 - AT - Income Tax

Deduction under s.35(1)(ii) upheld where AO relied only on investigation report; documentary evidence and withdrawals accepted

ITAT MUMBAI (AT) allowed the assessee's deduction under s.35(1)(ii), overturning the AO's addition that treated donations as bogus and estimated a 5% ... Weighted deduction u/s. 35(1)(ii) - donation paid by assessee to the Herbicure - addition being commission estimated @5% of alleged bogus donation - HELD THAT:- We find that the issue involved in the instant appeal is squarely covered by the order passed in Chemstar International [2024 (7) TMI 438 - ITAT MUMBAI as held AO has relied upon the report given by the Investigation wing. He did not make any independent enquiry to prove that the view expressed by the Investigation wing would be applicable to the assessee. AO has not brought any material to disprove the evidences furnished by the assessee with regard to the donations paid by it to the institutions. There is also no proof to show that the cheque paid by the assessee has been ploughed back by way of cash to the assessee. It is settled proposition that the subsequent withdrawal of recognition granted u/s 35(1)(ii) will not be a bar for granting deduction to the donations paid earlier. Accordingly, we hold that the claim made by the assessee u/s 35(1)(ii) of the Act in both the years should be allowed. Thus, we direct the learned assessing officer to allow the claim of deduction made by assessee u/s. 35(1)(ii). ISSUES PRESENTED AND CONSIDERED 1. Whether weighted deduction under section 35(1)(ii) of the Income-Tax Act can be denied where the donee's subsequent recognition was withdrawn retrospectively after the donation was made. 2. Whether the Assessing Officer may disallow a deduction claimed under section 35(1)(ii) by relying solely on statements and a report of the Investigation Wing (survey u/s 133A) implicating the donee in issuing 'bogus' donations, without independent inquiry or affording the donor an opportunity to cross-examine witnesses whose statements were relied upon. 3. Whether an addition of an estimated presumptive commission (5%) can be sustained in absence of evidence that the donor received any refund (plough-back) of the donated sums. ISSUE-WISE DETAILED ANALYSIS Issue 1 - Effect of subsequent retrospective withdrawal of donee's recognition on donor's entitlement to deduction under section 35(1)(ii) Legal framework: Section 35(1)(ii) grants a weighted deduction for sums paid to research associations/universities/institutions 'for the time being approved' and 'specified by notification in the Official Gazette' by the Central Government. The statutory text requires that the payee be approved at the time relevant to the payment; a proviso and explanation regulate the temporal effect of such approval. Precedent treatment: Coordinate benches of the Tribunal have consistently held that withdrawal of approval/recognition after the donation (including retrospective withdrawal by later notification) does not defeat the donor's right to deduction when the payee was duly approved at the time of payment. The Tribunal followed earlier decisions of coordinate benches which refused to penalize donors based solely on subsequent withdrawal of payee's recognition. Interpretation and reasoning: The Court reasons that the donor could not have foreseen and therefore cannot be prejudiced by subsequent administrative action withdrawing recognition. The statutory language focuses on the status of the donee at the time of payment; therefore, subsequent retrospective withdrawal cannot be used to retroactively defeat a deduction claim properly made when the payee was approved. The tribunal accepted that the payee was approved when payment was made, and that fact is determinative of eligibility for deduction under s.35(1)(ii). Ratio vs. Obiter: Ratio - where the payee was duly approved at time of payment, subsequent withdrawal of recognition does not nullify donor's entitlement to deduction under section 35(1)(ii). Conclusion: Deduction under section 35(1)(ii) cannot be denied solely because the donee's recognition was withdrawn retrospectively after the donation; the Assessing Officer must allow the claim where the donee was approved when payment was made. Issue 2 - Reliance on Investigation Wing statements (survey u/s 133A) and failure to provide opportunity for cross-examination / independent enquiry Legal framework: Principles of natural justice require that adverse evidence relied upon by revenue be subject to confrontation/cross-examination where appropriate; attribution of liability to a taxpayer requires relevant, admissible and tested material. Statements recorded during survey proceedings and reports of investigation wings are relevant material but cannot be treated as conclusive against third parties without procedural safeguards. Precedent treatment: The Tribunal followed coordinate bench decisions which held that reliance solely on statements recorded during survey-without giving the affected taxpayer an opportunity to cross-examine declarants-cannot sustain adverse findings. Prior Tribunal authorities were followed which emphasised that suspicion alone cannot substitute for evidence and that the Assessing Officer should conduct independent inquiry or allow cross-examination where the statements are used to impugn a taxpayer's claim. The judgment references higher-court authority emphasising the requirement of opportunity for cross-examination when statements are used to draw adverse inferences. Interpretation and reasoning: The Court found that the Assessing Officer relied exclusively on a general investigation report and a statement of the donee's founder director recorded during a survey at the donee's premises. No independent factual inquiry was conducted to connect the impugned modus operandi to the specific donor, nor was an opportunity afforded to the donor to cross-examine the maker of the statement. The Court emphasised (i) absence of any evidence that the donor ever received the donated sums back in cash or otherwise, (ii) lack of mention of the donor in the investigation statements relied upon, and (iii) settled principle that statements recorded behind the back of the taxpayer cannot be used to draw adverse inferences without opportunity of testing the statements. Ratio vs. Obiter: Ratio - where adverse reliance is sought to be placed on survey/investigation statements to deny a deduction, the Assessing Officer must either conduct independent inquiry linking those findings to the taxpayer or afford the taxpayer an opportunity to cross-examine the declarants; otherwise such reliance is impermissible. Conclusion: The Assessing Officer's denial of deduction based solely on the investigation report and statement of the donee's director-without independent inquiry or opportunity for cross-examination-was unsustainable; the deduction must be allowed. Issue 3 - Legitimacy of estimating and adding presumptive commission (5%) absent evidence of plough-back or refund to donor Legal framework: Additions or estimates to income require a factual foundation (evidence or material from which an inference can legitimately be drawn). Estimation of unreported receipts or commission must be supported by material connecting the taxpayer to the alleged receipt. Precedent treatment: The Tribunal followed precedent requiring concrete evidence of plough-back of donated amounts to the donor before making an addition; mere allegations in a survey report or statements about general modus operandi of a donee do not justify an addition against a particular donor in absence of evidence linking the donor to the alleged refunds. Interpretation and reasoning: The Court noted absence of any evidence that cheques issued by the donor were ploughed back to it in cash or otherwise. The Assessing Officer did not demonstrate that the donor was a recipient of any refunded amount; the 5% presumptive commission addition was based on an unproven assumption derived from the investigation report rather than on facts connecting the donor to an actual realization of benefit. Ratio vs. Obiter: Ratio - estimated additions premised on alleged commission or plough-back cannot be sustained without evidence that the donor in fact received such refund or benefit. Conclusion: The addition of a presumptive 5% commission was not supported by evidence and could not be sustained; the addition was set aside. Cross-references and final disposition Interplay of issues: Issues 1-3 are interlinked: the tribunal treated the absence of contemporaneous evidence of plough-back and the improper procedural reliance on investigation statements as further reinforcing that the subsequent withdrawal of donee recognition could not defeat a valid deduction claimed when the payee was approved. The Tribunal applied coordinate bench authority on all three aspects-temporal effect of recognition, admissibility and weight of survey statements, and requirement of evidence for estimative additions-and consequently allowed the appeal and directed allowance of deduction under section 35(1)(ii).