TaxTMI 
TaxTMI 
2021 (5) TMI 436
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....Assessing officer has passed the order overlooking apparent Proviso (A) and (B) of Section 35(1)(ii) of the Act. The learned CIT Appeals grossly erred in ignoring the fact that the institution was time being approved as eligible institute under Section 35(l)(ii) of the Act. 4. The revocation of Notification with retrospective effect is unlawful for the reason that of the notification inter-alia states that the withdrawal of notification shall only be prospective b) retrospective revocation will result in hardship and punishment to person other than the defaulter c) The result is department is taking advantage of its own mistake. 5. The learned CIT Appeals and Assessing officer has placed reliance on statement of person defrauding department as against the registrations, certifications and approvals issued by Central Government Ministry" of Finance, Ministry of Science and Technology, Department of Home Affairs and approvals issued by Director Exemptions under section 12A, 35(1) and 10(23C) of the Act. 6. The learned AO has erred in passing order of assessment without observing rules of natural justice. The AO has not allowed examination of statement relie....
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....fect on the basis of enquiries conducted in the case of the institute i.e. SHGPH. Thereafter a survey was carried out by the department u/s 133A of the Act in the case of donee and during the survey Treasures of the institute made statement that since 2002 to the institute made statement that source of income for this organization is mainly out of donation from corporate bodies as well as from individuals. In facts, we receive donation through cheque, RTGS and simultaneously we issue cheques in the name of some companies and the process said institute originally receives @ 7% to 8% of donation amount and total process has been maintained by brokers. She also accepted that through brokers they get donation from clients and donation money from back to the donors by bogus billing after deducting commission of 8%. On receipt of that information, Ld. A.O. made disallowance of deduction u/s 35(1)(ii). 7. In appeal before the ld. CIT(A), He held that " In the income tax cases the suit is that of a Civil case in which one has to go by the preponderance of probability and not by an evidence to prove it to the guilt. It has been observed by the than Apex Court that the Courts will not be ....
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.... 20.11.2014 declaring total income at Rs. 4,47,910/-. On scrutiny of the accounts, it revealed that the assessee-company has given donation to Herbicure Healthcare BioHerbal Research Foundation, Calcutta. A survey action was carried out at the premises of the donee wherein it revealed to the Revenue that this concern was misusing the benefit of notification issued by the Income Tax Department. It has been getting donations from various sources, and after deducting certain amount of commission, these donations were refunded in cash. On the basis of that survey report registration granted to its favour was cancelled. On the basis of the outcome of that survey report, the ld.AO construed the donation given by the assessee as bogus. Appeal to the ld.CIT(A) did not bring any relief to the assessee. 4. Before us, the ld.counsel for the assessee contended that donations were given on 25.3.2014. At that point of time, donee was notified as eligible institution and fall within the statutory eligibility criterion. Certificate for receiving donation was cancelled on 5.9.2016. There is no mechanism with the assessee to verify whether such donee was a genuine institute or not, which ca....
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.... the record carefully. The AO is harping upon an information supplied by the survey tem of Calcutta. He has not specifically recorded statement of representatives of the donee. He has not brought on record a specific evidence wherein donee has deposed that donations received from the assessee was paid back in cash after deducting commission. On the basis of a general information collected from the donee, the donation ITA No.1943/Ahd/2017 made by the assessee cannot be doubted. Neither representatives of the donee have been put to cross-examination, nor any specific reply deposing that such donation was not received, or if received the same was repaid in cash, has been brought on record. In the absence of such circumstances, donation given by the assessee to the donee, on which the assessee no mechanism to check the veracity, can be doubted, more particularly, when certificate to obtain donation has been cancelled after two years of the payment of donation. It is fact which has been unearthed subsequent to the donations. Therefore, there cannot be any disallowance on this issue. We allow this ground. 12. In view of the above, since at the time of donation, donee was having all th....