TaxTMI 
TaxTMI 
TaxTMI 
2020 (2) TMI 149
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....on 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on the issue is that [the Government of India [CBDT] has vide Notification No. S.O.2961(E) dated 15.09.2016 - has rescinded the approval that had earlier been granted to SGH&PS w.e.f. 01.04.2007 - that it shall be deemed that the approval had never been issued for any tax benefit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 Central Board of Direct Taxes New Delhi, the 15th of September 2016 Notification S.O. 2961(E), in exer....
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....e. 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 case of Tushar Chawda, in ITA No.2362/Kol/2017 dated 21.03.2018 has held as follows: This is an appeal by the assessee directed against the order of the Commissioner of Income Tax-(A)-9, Kolkata relating to A.Y. 2014-15. 2. In this case the assessee had paid an amount of....
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....tion 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 the purpose of availing weighted deduction of 175% u/s 35(1)(ii) of the Act made to M/s School of Human Genetics and Population Health, Kolkata is denied. It may be clarified here that explanation to section 35(l)(iii) of the Income-tax Act shall not come to the rescue of the appellant as it relates, only to approvals which have been ....
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....articular 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 assessee in lieu of cheque donations paid to them. The revenue had left the matter at this stage itself and did not further probe into it to check the veracity of the confirmation made by Shri Swapan Ranjan Dasgupta. Therefore, the ld AO proceeded to make the addition only based on the statement recorded from Swapan Ranjan Dasgupta at the time of survey. It may be true that in the ....
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....ention 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.13/04/2018, adjudicated the issue in favour of the assessee. 2.1. The ld. D/R, on the other hand submitted that statements were recorded from key persons of the Trust and in these statements, these persons have admitted that such accommodation entries were provided for donations. He specifically referred to question no. 12 at page 7 of the assessment order, wherein, Smt. Samadrita Mukherjee Sardar, secretary of the School of Human Genetics and Population Health,....
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....s 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 Ranjan Dasgupta has not stated anywhere that the assessee indulged in bogus donation or that the amount donated to it (M/s. Herbicure) was given back to the assessee after deducting the commission. We note that the statement recorded on oath during survey cannot be the sole basis for making the disallowance as decided by the Hon'ble Supreme Court in CIT Vs. S. Kader Khan Son (2013) 352 ITR 480 (SC). In any case, if the AO was of the opinion that the statement of Shri Swapan Ranjan Dasgupta, the founder Director of M/s. He....
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....lief 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 filed a letter on 28/01/2016 stating "Referring to the above and your comments on my reply dated 22.01.2016, I would further request your good office to elaborate the financial years in question to enable our Accounts Deptt for verification and submission. However, we apparently observe from our records that following donations were received by us from M/s. Saimed Innovation, the assessee in the financial years mentioned against each: FYs Amount Mode of transaction Date Receipt No. 2012- 13 7,51,000/- RTGS:UTR No. BARBH ....