2022 (7) TMI 1416

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....e-in-after referred to as "the Act") relevant to the Assessment Year 2010-11. 2. The only issue raised by the assessee is that the Ld. CIT(A) erred in confirming the order of the AO by sustaining the disallowance of the deduction claimed u/s 35AC of the Act for making the donation of Rs.30,00,000/- to M/s.Navjeevan Charitable Trust. 3. The facts in brief are that the assessee in the present case is a private limited company and engaged in the business of trading of dyes & chemicals. The assessee in the year under consideration has given donation amounting to Rs.30,00,000/- to M/s Navjeevan Charitable Trust which was registered under the provision of section 35AC of the Act. Thus, the assessee claimed the deduction for the amount of do....

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....17 for A.Ys 2010-11, 2011-12 & 2012-13 have decided the issue in favour of the assessee. The relevant extract of the order is reproduced as under: 9. We have heard both the parties and perused all the relevant materials available on record. The assessee challenging the order of the CIT(A) thereby confirming the addition related to donation to Navjeevan Charitable Trust under Section 35AC of the Act. The assessee has made donation in the year 2009-10, 2010-11 & 2011-12. At the time of donation to Navjeevan Charitable Trust, the Trust was operational and there was no investigation in those Assessment Years. The Revenue at no point of time pointed out that the donation made by the assessee to SHG and PH were returned back to the asses....

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....: 2. In the first ground of appeal, the grievance of the assessee is that the ld.CIT(A) has erred in confirming addition of Rs.8,75,000/- on account of alleged bogus donation to Herbicure Healthcare Bio-Herbal Research Foundation. 3. Brief facts of the case are that the assessee has filed return of income on 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 Bio-Herbal 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 donati....

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....d from the donee, the donation 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. " 6. There is no disparity on the f....

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....d despite the request was made to the AO by the assessee. In our considered view the answer stands in favour of the assessee. The statement recorded during survey operation cannot be used against the assessee until and unless it is cross verified in view of the judgment of Hon'ble Gujarat High Court in the case of CIT v/s Chartered Speed Pvt. Ltd. reported in Tax Appeal No. 126 of 2015 wherein it was held as under: "It is an undisputed position that the statement of the persons concerned which were recorded by the department, those persons were not made available for cross examination, may be for one reason or another inspite of the attempts made by the department. Therefore the Tribunal has rightly found that the statement of thos....