TaxTMI 
TaxTMI 
2020 (2) TMI 149
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....mmodation entry. The CIT(A)'s detailed discussion to this effect reads as under:- "6. On the claim of deduction u/s.35(1)(ii). As stated above at Para 4, the discussion in the impugned assessment order is detailed on facts, and in law. it is a speaking order. This case is clearly the case for facts only - and has been unearth the scam - all discussed in detail the assessment order. Just to highlight some damaging high points: • SGH&PS had admitted to perpetrating the scam. • SGH&PS had approached the Hon'ble Income Tax Settlement Commission with disclosure at Rs.15.75 Crores for the FY 2011-12 to 2013-14. • And -the finality on the issue is that [the Government of India [CBDT] has vide Notification No. S.O.2961(E) dated 15.09.2016 - has rescinded the approval that had earlier been granted to SGH&PS w.e.f. 01.04.2007 - that it shall be deemed that the approval had never been issued for any tax benefit under the Income Tax Ac,1961. The notification is hereunder:- (TO BE PUBLISHED IN GAZSETTE OF INNDIA, PART II, SUB-SECDTION (II) OF SECTION 3) Government of India Ministry of Finance Department of Revenue....
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....nt organisation to be engaged in accommodation entry providing business than carrying out any scientific research and development. Learned CIT-DR refers to the lower authorities respective findings in seeking to confirm the impugned disallowance. We find no substance in Revenue's instant plea since this tribunal's co-ordinate bench decision in ITA No.s 341-342/Kol/2019 M/s Shyam Sunder Co. Jewellers vs. ACIT, Circle-2(2), Kolkata decided on 26.04.2016 deletes the very disallowance in case of the above stated recipient itself in assessment years 2013-14 and 2014-15 as under:- "6. Ground No.2 to 4 for the Assessment Year 2013-14 and Ground No.2 to 4 for the Assessment Year 2014-15 are on the issue of disallowance of claim of deduction u/s 35(1)(ii) of the Act of donations given to SHG &PH. The Assessing Officer disallowed the claim on the ground that survey was conducted on SHG &PH and it came to light that the donations received by cheque/RTGS were returned in cash to the donors. 7. Similar issues on identical facts and arguments were considered by different Benches of the Tribunal which are as under. 7.1 The Hon'ble Kolkata ITAT, B Bench in the c....
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....1961, read with Rule 5C and 5E of the Income tax Rule, 1962. The Notification reads as follows: "'Ministry of Finance, (Department of Revenue) (Central Board of Direct Taxes) Notification New Delhi, the 15th September, 2016, S.O. 2961(E)-In exercise of the powers conferred under clause (ii) of sub-section (1) of section 35 of the Income-tax Act, 1961 read with Rule 5e and 5E of the Income-tax Rules, 1962, the Central Government hereby rescinds the notification of the Government of India, Ministry of Finance, Department of Revenue number 4/2010 dated 28.01.2010 published in Gazette of India , Part 11, Section 3, Sub-section (ii) dated 28.01.2010 vide S.O. 348 with effect from 1st April, 2007 and shall be deemed that the said notification has not been issued for any tax benefits under the Income-tax Act, 1961 or any other law of the lime being in force [Notification No. 82/2016/F.No.203/64/2009/ITA-ll] Deepshikha Sharma, Director." The above notification makes clear that the earlier notification. No. 4/2010 dated 28.01.2010 shall be deemed not to have been issued for any income- tax benefits under the Income-tax Act. Therefore, the payment of Rs. 15,00,000/- for....
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....e assessee by stating that one Cardiologist Doctor had introduced the assessee to HHBRF and donations were given after due satisfaction of the assessee based on personal visits to the two research centres of HHBRF and activities carried on by them. Moreover, it is well settled that it is always the prerogative of the assessee to give or not to give any donation to a particular institution, which wisdom cannot be questioned by the revenue. The question of business expediency of an expenditure had to be viewed from the point of view of the businessman and not from the view point of the revenue. The businessman knows his interest best. However, it cannot be denied that this donation paid to HHBRF is free from any suspicion. It definitely leads to further probe by the revenue, which has been carried out by the revenue by summoning the Director of HHBRF. The said Director Shri Swapan Ranjan Dasgupta, though could not appear in person before the ld AO for cross-examination (which was sought by the assessee) but had confirmed in writing that the donations given by the assessee to HHBRF were genuine in nature and had further confirmed that HHBRF had not paid any cash back to asses....
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....aves leave to alter, amend, modify any of the grounds and/or take additional ground before or at the time of hearing of this appeal." 2. Heard both the parties. The ld. Counsel for the assessee submits that from the statement recorded and relied upon by the Assessing Officer of Shri Avijit Sinha Roy, it is clear that he stated that after February, 2011, he left this activity of providing bogus donations for commission. He drew the attention of the Bench to page 3 para 6.6. of the assessment order and submitted that the donation in question was made on 03/06/2014. Thus, he submits that reliance placed on this statement of Shri Avijit Sinhar Roy, for making this addition, is wrong. He further submits that no opportunity was provided to the assessee for cross-examination of the persons on whose statements the revenue relied upon to make this addition. He submitted that under similar circumstances the Kolkata 'SMC' Bench of the Tribunal in the case of Tushar Chawda vs ITO in ITA No. 2362/Kol/2017, order dt. 21/03/2018, and the Kolkata 'B' Bench of the Tribunal in the case of DCIT vs. M/s. Maco Corporation India (P) Ltd. in ITA No. 378/Kol/2017, order dt.13/04....
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....amination of witness was provided. No proof of money being returned is available with the revenue. 3.2. Similar view was taken by the 'B' Bench of the Tribunal in the case of DCIT vs. M/s. Maco Corporation (India) Pvt. Ltd. in ITA No. 16/Kol/2017; Assessment Year 2013-14, order dt. 14/03/2018. 4. Consistent with the view taken therein, we allow this appeal of the assessee and direct the Assessing Officer to grant the necessary deductions. 5. In the result, appeal of the assessee is allowed. 7.3 We also find that similar issue came up before the co-ordinate bench of this tribunal in the case of Saimed Innovation vs ITO in ITA No. 2231/Kol/2016 for Asst Year 2013-14 dated 13.9.2017, wherein it was held as under:- "9. We note that the sole basis for making the addition is on the basis of the statement recorded on oath during survey at M/s. Herbicure of Shri Swapan Ranjan Dasgupta, other than the said statement there is no other evidence to show that the assessee has received back the donation as suggested in his general statement about providing accommodation entry by Shri Swapan Ranjan Dasgupta. We also note that the said Shri Swapan Ranja....
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....em to M/s. Herbicure. We note that the AO enquired about Dr. Bhuban Chakraborty's address for which the partner replied that the doctor resides at Kshudiram Sarani, Rathtala, Kolkata. For question no. 21 as to whether they knew about the Directorate of Investigation, Kolkata carried out survey u/s. 133A and that its investigation is found that the activities were not genuine, the partners replied that they were not aware of the survey, however, they added that after their visit of the two centers they were on a bona fide belief that M/s. Herbicure was a competent institute and based on the recommendation of the Cardiologist Dr. Bhuban Chakrabrty they made donation to the said concern. We also note that the AO issued summons to Shri Swapan Ranjan Dasgupta who did not appear for cross examination due to ill health but the said Shri Dasgupta confirmed the donations made by the assessee firm to M/s. Herbicure in writing to the AO and clearly stated that no money was refunded back to assessee firm, which fact has been reproduced by the AO at page 7 of his order as under: "Shri Swapan Ranjan Dasgupta, Director of M/s Herbicure Healthcare Bio-Herbal Research Foundation had fi....