TaxTMI 
TaxTMI 
TaxTMI 
2019 (6) TMI 733
X X X X Extracts X X X X
X X X X Extracts X X X X
....essee had made a donation to School of Human Genetics & Population Health, an institute which is engaged in scientific research and duly notified by the Central Board of Direct Taxes in terms of Section 35(1)(iii) of the Act vide notification No.4/2010 dated 28/01/2010. He further contended that the institute to whom the assessee has donated was in existence and notified during the relevant F.Y. 2012-13. As per the ld AR the CBDT has rescinded notification on 15/9/2016 which was retrospective from 01/4/2007 but the institute was validly recognized by the CBDT on the date of donation. As per the ld AR the approval so granted to the institute was very much in force at the time of donation and the assessee had no reason to disbelieve the operation of approval and notification of the institute. He further argued that the subsequent notification by the CBDT rescinding the approval retrospectively will not affect the claim of the assessee in so far as there was no information with the assessee regarding non- genuinity or not observing the standard fixed by the CBDT for making eligible itself for deduction U/s 35 of the Act. Accordingly, it was argued that the assessee's act was in a ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....26/09/2014. The assessee has claimed weighted deduction U/s 35(1) (ii) of the Act. The assessee had made donation to an institute engaged in Scientific Research. The authorities below has not allowed the deduction. The assessee had made donation of Rs. 1,00,00,000/- to School of Human Genetics & Population Health, an institute engaged in scientific research and notified by the Central Board of Direct Taxes in terms of Section 35(1)(ii) of the Act vide notification No.4/2010 dated 28/01/2010. The institute, whom the donation was made was in existence and notified during the F.Y. 2013-14 when the assessee has made donations. The CBDT has rescinded notification on 15/9/2016. Although, it has been made retrospective effect from 01/4/2007. This institute was validly recognized by the CBDT on the date of donation made by the assessee. The approval granted to the institute was very much in force at the time of donation made by the assessee. The assessee had no reason to disbelieve the operation of approval and notification of the institute. In such a situation, the deduction claimed by the assessee is justified. The subsequent notification by the CBDT rescinding the approval retrospecti....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... paper book, wherein the donation was made to the same institute i.e. school of Human Genetics and Population Health, was held that in view of explanation to Section 35(1)(ii) of the Act, would not be withdrawn subsequently when recognition has been rescinded. Similarly the Coordinate Bench of Kolkata ITAT in the case of Saimed innovation Vs. ITO in ITA No. 2231/Kol/2016 order dated 13/09/2017 has held that weighted deduction claimed U/s 35(1)(ii) of the Act cannot be denied on the basis of statement recorded during the survey and no opportunity was provided to cross examine the third party, who has given such statement. Further in view of the decision of Hon'ble Allahabad High Court in the case of CCE Vs. Shyam Traders 2016 (333) ELT 389 and the decision of Hon`ble Supreme Court in the case of Andaman Timber Industries (324) ELT 641 and the various other case laws relied upon by the Id. A.R., we find that the authorities below were not justified in denying claim of deduction U/s 35(1) (ii) of the Act to the assessee, hence, we set aside the orders of the authorities below. 8. In the result, appeal of the assessee is allowed." 6. The precise observation of Kolkata Bench of t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....dustrial Infrastructure Development Corporation (Gwalior) M.P. Ltd vs. CIT Gwalior reported in (2018) 90 taxmann.com 281 (SC) wherein it was held that :- 21. In our considered opinion. the CIT had no express power of cancellation of the registration certificate once granted by him to the assessee under Section 12A till 01.10.2004. It is for the reasons that, first, there was no express provision in the Act vesting the CIT with the power to cancel the registration certificate granted under Section 12A of the Act. Second, the order passed under Section 12A by the CIT is a quasi-judicial order and being quasi-judicial in nature, it could be withdrawn/recalled by the CIT only when there was express power vested in him under the Act to do so. In this case there was no such express power. 22. Indeed, the functions exercisable by the CIT under Section 12A are neither legislative and nor executive but as mentioned above they are essentially quasi judicial in nature. 23. Third, an order of the CIT passed under Section 12A does not fall in the category of "orders" mentioned in Section 21 of the General Clauses Act. The expression "order" employed in Section 21 would show that such "ord....
X X X X Extracts X X X X
X X X X Extracts X X X X
....udicial in nature. Second, there was no express provision in the Act vesting the CIT with power of cancellation of registration till 01.10.2004; and lastly, Section 21of the General Clauses Act has no application to the order passed by the CIT under Section 12A because the order is quasi-judicial in nature and it is for all these reasons the CIT had no jurisdiction to cancel the registration certificate once granted by him under Section 12A till the power was expressly conferred on the CIT by Section 12AA(3) of the Act w.e.f. 01.10.2004. We hold that the ratio decidendi of the aforesaid judgement of the Hon'ble Apex Court would squarely be applicable to the facts of the instant case. In fact, the assessee's case herein falls on a much better footing than the facts before the Hon'ble Apex Court. In the case before Hon'ble Apex Court, the power of cancellation of registration us 12A of the Act was conferred by the Act on the Id CIT w.e.f. 1.10.2004 and the Hon'ble Apex Court held that prior to that date. no cancellation of registration could happen. But in the instant case., there is absolutely no provision for withdrawal of recognition u/s 35(1)(ii) of the Act.....