TaxTMI 
TaxTMI 
2023 (8) TMI 137
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....to dispose of them by this common order. In order to appreciate the facts in a simplified manner, we deem it appropriate to take note of the facts in a seriatim from each appeal. 2. ITA No. 261/KOL/2020 (Tarasafe International Pvt. Limited) The assessee is impugning the order of ld. Commissioner of Income Tax (Appeals) dated 29.11.2019 passed in A.Y. 2013-14, which has arisen against the assessment order dated 30.03.2016 passed under section 143(3) of the Income Tax Act. The assesee has taken eleven grounds of appeal. However, on perusal of the grounds, it revealed to us that basically three-folds of grievance are being raised by the assessee, namely- (a) in Grounds No. 2 to 6, the assessee has pleaded that ld. CIT(Appeals) has erred in confirming the action of the ld. Assessing Officer for not allowing the deduction of Rs. 87,50,000/- claimed under section 35(1)(ii) of the Income Tax Act, 1961; (b) In Grounds No. 7 & 8, the assessee has submitted that ld. CIT(Appeals) has erred in confirming the action of the ld. Assessing Officer for considering disallowance of Rs. 87,50,000/- under normal provisions for computing book profit and thereby erred in calcul....
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....peals) has allowed partly on other small disallowances, but the issues agitated before the Tribunal, ld. CIT(Appeals) has concurred with the ld. Assessing Officer. 3. ITA Nos. 107/KOL/2020 & 108/KOL/2020 (REACHASIA) The present two appeals are directed at the instance of assessee against the separate orders of ld. CIT(Appeals) dated 02.12.2019 passed on the appeals of the assessee for A.Y. 2013-14 and 2014-15. 3.1. The assessee has taken two grounds of appeal in A.Y. 2013-14 and three grounds of appeal in A.Y. 2014-15. 3.2. Ground No. 1 in A.Y. 2013-14 is similar with Ground No. 1 in A.Y. 2014-15. In this ground of appeal, the assessee has pleaded that ld. CIT(Appeals) has erred in confirming the disallowances of deduction amounting to Rs. 35,00,000/- and Rs. 17,50,000/-, which were claimed by the assessee under section 35(1)(ii) for grant of donation to SHG&PH i.e. School of Human Genetics and Population Health. 3.3. Ground No. 2 is common with Ground No. 3 of A.Y. 2014-15. In this ground, the assessee has not raised any specific grievance. In A.Y. 2014-15, it has raised one more ground of appeal whereby it has challenged the disallowance of Rs. 13,12,500/-, which w....
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....fic Research". In the return under Schedule (e), it claimed a deduction of Rs. 3,50,00,000/-. The ld. Assessing Officer has disallowed this deduction. He has made a similar discussion as made in the earlier two appeals of the Group. He has made reference to the statements, for appreciating the affairs of SHG&PH, recorded during post-survey enquiry in their cases. He has made reference as to how the donors went to the Settlement Commission and admitted the fact that they have provided only accommodation entries on commission based. All these materials were confronted to the assessee. 5. ITA No. 23/KOL/2020 M/s. Coalsale Co. The present appeal is directed at the instance of assessee against the order of ld. CIT(Appeals) dated 24.12.2019 passed for A.Y. 2015-16. 5.1. The assessee has raised five grounds of appeal, but its grievances revolve around a single issue, namely ld. CIT(Appeals) has erred in confirming the disallowance of deduction claimed under section 35(1)(ii) amounting to Rs. 17,50,000/-. 5.2. Brief facts of the case are that the assessee has filed its return of income electronically on 27.09.2015 declaring total income of Rs. 1,43,82,590/-. The case of the ass....
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....ssessing Officer found that assessee has given a donation of Rs. 3,00,000/- to M/s. Horticulture Harbal Healthcare Bio-Harbal Research Foundation (in short 'HHBRF') and it claimed weighted deduction of Rs. 5,25,000/-. The ld. Assessing Officer has confronted the assessee with regard to the material unearthed during the course of search by the Investigation Wing in the case of recipient of the donation, but the assessee failed to give any plausible reply to rebut such donation except by submitting that it has given donation under a bonafide belief. Accordingly ld. Assessing Officer has disallowed the claim of the assessee vide assessment order dated 25.10.2016 passed under section 143(3) read with section 147 of the Income Tax Act. Appeal to the ld. CIT(Appeals) did not bring any relief to the assessee. 7. ITA No. 133/KOL/2021 The assessee is in appeal before the Tribunal against the order of ld. CIT(Appeals) dated 31.03.2021 passed for A.Y. 2012-13. 7.1. In the grounds of appeal, the assessee has raised six grounds of appeal, however, its grievances revolve around two issues, namely- (a) ld. CIT(Appeals) has erred in upholding the reopening of assessment; ....
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.... bogus and as to how the recipient has approached the Settlement Commission admitting the fact that it was involved in bogus donation. Contrary to this claim, the assessee was unable to submit any evidence except pleading bonafide donation. The ld. Assessing Officer disallowed the claim of the assessee by passing an assessment order on 02.03.2016 under section 143(3) of the Income Tax Act. Appeal to the ld. CIT(Appeals) did not bring any relief to the assessee. 9. ITA Nos. 2316 & 2317/KOL/2019 The present two appeals are directed at the instance of assessee against separate orders of ld. CIT(Appeals) dated 28.08.2019 passed in A.Y. 2013-14 and 2014-15. 9.1. The grievance of the assessee is that ld. CIT(Appeals) has erred in confirming the disallowance of Rs. 5,25,000/- in A.Y. 2013-14 and Rs. 5,25,000/- in A.Y. 2014-15. 9.2. Brief facts of the case are that the assessee his filed its return of income on 20.12.2013 and 28.03.2015 declaring total income of Rs. 13,08,950/- and Rs. 13,74,490/- respectively in A.Ys. 2013-14 and 2014- 15. All the returns of the assessee involved in both the years were for scrutiny assessment. It was found that the assessee has given bogus don....
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....eturn of income electronically on 29.09.2013. The case of the assessee was selected for scrutiny assessment and a notice under section 143(2) was issued and served upon the assessee. On scrutiny of the accounts, it revealed to the ld. Assessing Officer that the assessee had claimed a deduction of Rs. 35,00,000/- under section 35(1)(ii) on a donation of Rs. 20,00,000/- to School of Human Genetics and Population Health. The ld. Assessing Officer confronted the assessee with regard to the material unearthed during the course of search/survey in the case of recipient of the donations. He confronted the assessee as to how this recipient has admitted before the Settlement Commission that it has provided accommodation entries after receipt of commissions. The assessee was unable to submit any evidence in support of its claim except pleading bonafide belief of its donation. It was submitted by the assessee that since recipient was enjoying the status of a Research Institute when it has made donation. If any subsequent enquiry was made, it unearthed that such recipient was receiving bogus donation beyond the control of the assessee, the ld. Assessing Officer was not satisfied with the expla....
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....its main object of undertaking scientific research or to a University, College or other Institution to be used for scientific research, then this Section provides that such Institution, University, College has to be 'approved' for such purposes by prescribed authority. Therefore, if a research institute is approved and notified by the prescribed authorities under the Rules of Income Tax Rules, 1962 and the provision of this Act, then the donors will be entitled for a deduction equivalent to 175% of donation given by them. Therefore, as far as scope of this Section or meaning/instruction of the language employed in this section is concerned, there is no dispute between the parties. In other words, interpretation of the meaning of section is not involved, which requires reference to any judgment from the authoritative pronouncements of Hon'ble High Courts as well as Hon'ble Supreme Court. 16. The dispute relates to the factum of giving donations to a genuine institution for claiming deduction under section 35(1)(ii) of the Income Tax Act. Arguments: 17. Shri S.M. Surana, ld. Sr. Advocate has led the arguments on behalf of the assessees. He could not dispute to the propositio....
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....nu Thakur -vs.- State of Maharashtra [AIR 1994 S.C. 2623]. On the strength of these two decisions, he submitted that a procedural statute should not generally be applied retrospectively, where the result would be to create new disabilities or obligations, or to impose new duties in respect of transactions are not accomplished. The ld. Counsel for the assessees thereafter made reference to a series of decisions, where ITAT has allowed such a deduction to the assesses. He pointed out that some of the decisions in Kolkata have been upheld upto the Hon'ble High Court also. He pointed out that across India, such deductions have been allowed to the assessees. 19. All the ld. Counsels have been by and large took the same line of argument. They only placed on record different ITAT orders in their paper book, wherein identical issues were involved. 20. Originally Shri Amal Kamat, ld. CIT(DR) appeared in the case of Tarasafe International Private Limited assisted with Smt. Ranu Biswas, Addl. CIT, Sr. D.R. Thereafter Shri Arup Chatterjee, ld. Sr. D.R. represented the Revenue. In the case of Tarasafe International Pvt. Limited, a paper book has been filed by the Revenue running into 268 ....
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....gh Court and upheld the rejection of the registration under section 12A(3). He emphasized that in this decision, the Hon'ble Supreme Court has taken note of the discussion made by the ld. CIT (Exemption), who cancelled the registration as well as the finding recorded by the Tribunal. Both these findings are based upon the material discovered during the survey upon SHG&PH and, therefore, in view of this latest decision of the Hon'ble Supreme Court, he emphasized all other orders of the ITAT and the decisions of the Hon'ble High Court are not to be followed. 22. Since this decision was supplied by the Revenue after conclusion of the arguments, therefore, we re-fixed the hearing and confronted the assessee with this latest position of law. However, Shri Soumitra Chowdhury, ld. Counsel for the assessee has placed on record the judgment of the Hon'ble Calcutta High Court in the case of Commissioner of Income Tax (Exemption), Kolkata - vs.- Sanskriti Sagar. In this decision, the Hon'ble High Court has considered the judgment of the Hon'ble Supreme Court in the case of Batanagar Education & Research Trust and dismissed the appeal of the Revenue. In this case also, registration under se....
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....; DIT(E)/ 3248/ SE/ 23/04 -05 27.10.2004 12.12.2011 Director of Income Tax (Exemption), Kolkata Registration u/s 10 (23C ) of the I.T. Act Initial order no. 49 Renewal vide No . CCIT-III /10 (23C )(iv)/11-12/2 45 27.02.2004 16. 01.2014 CCIT-III, Kolkata Recognition of Scientific and Industrial Research Organization Renewal till 31.03.2016 vide Communication No. 14/473/2007-TU-V (for 01.04.10 to 31.03.13) For 01.04.08 to 31.03.10) 01.04.2013 01.04.2013 17.06.2010 Government of India, Ministry of Science and Technology Gazette Notification u/s 35(1) (ii) of the I.T. Act, 1961 Notification No. 4/2010 28.01.2010 Government of India, Ministry of Finance (Department of Revenue) Central Board of Direct Taxes) 24. The Governing Body members of the recipient are as under: (a) Dr. Madhumita Roychoudhury President (b) Dr. Shyamal Kumar Nandy Vice-President (c) Dr. Samadrita Mukherjee Sardar Secretary (d) Ms. Basanti Rauth Assistant Secretary (e) Mrs. Moumita Raghavan Treasurer (f) Mr. Gautam Das Executive Member (g) Dr. Debashis Mukherjee Executive Member 25. The Society,....
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.... a survey operation under section 133A of the Act was carried out at the premises of the done Society at 6A, Malanga Lane, Kolkat-12 on 27.01.2015. During the course of survey following documents were found and impounded:- Name & Address Items Annexure Documents found Documents impounded School of Human Genetics & Population Health, 6A, Malanga Lane, Kolkata-700012 Books of accounts Cash Bank A/c. Debit/Credit Card 'A' '3' '2' '4' SHG/1 to SHG/8 and SHG/PD/1 (one Pen Drive) Rs. 82,400/- 16 nos. 4 nos. SHG/1 to SHG/8 and SHG/PD/1 (one Pen Drive) NIL NIL NIL 28. The main allegation and reason for the survey against the donee was that it had received huge amount of donations on which the applicant society earned service charges. During the survey operation, statements of the Secretary and the Treasurer of the Society were recorded in which they admitted the fact of accepting donations through certain mediators and refunding the same after keeping 3% - 8% as service charges for the society. 29. In 2019, one of us was posted ITAT, Ahmedabad Vice-President (Judicial Member), when first time such issue ca....
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....ime, donee was notified as eligible institution and fall within the statutory eligibility criterion. Certificate for receiving donation was cancelled on 6.9.2016. There is no mechanism with the assessee to verify whether such donee was a genuine institute or not, which can avail donation from the society. 5. The Id. DR, on the other hand, contended that in the investigation it came to know about bogus affairs conducted by the donee. Hence, these donations are rightly been treated as bogus, and addition is rightly made. 6. We have duly considered rival contentions and gone through the record carefully. The AO is harping upon an information supplied by the survey tern of Calcutta. He has not specifically recorded statement of representative 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 general information collected 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 recei....
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....ellants. 32. With respect to all the case laws including our own order, which has been upheld by the Hon'ble Gujarat High Court, we are of the view that all the decisions are based on the set of facts in those cases. In these cases, the Department did not file paper book, did not bring it to the notice of the ITAT about the nature and quantum of the material discovered during the course of survey exhibiting as to how a modus operandi in an organized manner was adopted by the recipients with the help of brokers to fraud the nation. There was no question of law involved in the factual finding given by the Tribunal in all the cases. Thus on facts the orders of the Tribunal were upheld. 33. Let us take note of the material placed before us persuading us to record a finding of fact being a last authority on this aspect. There is no dispute that a survey under section 133A was carried out at the premises of M/s. SHG&PH as well as M/s. Herbicure Healthcare Bio-Herbal Research Foundation (in short 'HHBRF') because Abhilasha Tradecom Pvt. Limited obtained the accommodation entry from this Institution and issue is involved in ITA No. 132/KOL/2021. In this survey, statement of the Secre....
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....ita Mukherjee Sardar of SHGPH regularly and raise bogus bills f or SHGPH over the years as per their directions. I shall furnish the details of bogus billing on 10.03.2015. Q. 6: Please explain the nature of business done by you in detail. Ans.: I am an accommodation entry operator and I am engaged in the business of providing accommodation entries in the form of bogus share capital/unsecured loans/bogus bills etc. to various beneficiaries/parties through various 'jama-kharchi'/paper companies/proprietorship concerns controlled by me in lieu commission. Q.7. Kindly go through the Annexure-A which is submitted by you in the case of SHG&PH. Kindly provide the bank account along with the bank name and branch addresses of 21 concerns mentioned in the Annexure-A. Ans.: I will submit all the required details by 27.03.2015. Q.8. Kindly furnish the names, postal addresses and phone numbers of the directors /proprietors of the 21 concerns mentioned in the Annexure-A. Ans.: I will submit all the required details by 27.03.2015. Q.9. Please go through the Annexure-A in which total billing is shown as Rs. 1118848138/-. Please state ....
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....he Revenue should not be used against them for doubting the genuineness of the donation. The scheme of the Income Tax Act provides that a claim made by an assessee has to be proved by the assessee. Thus the first onus is upon the assessee about the claim made by him. This onus was discharged by the assessee by pointing out that Institution to whom donations were given. They are approved by the Income Tax Authority and, therefore, their claim is to be allowed. However, if the first onus discharged by the assessee was dispelled by the ld. Assessing Officer by confronting them with the material recovered during the survey and post survey enquiries, then the questions posed before us is, whether this belief harped by all the appellants was such a bonafide that could not be questioned in any circumstances. To our mind, it is a misplaced argument at the end of the appellants. It is to be appreciated that recipient came into existence in 1993, it might have been working on charitable objects and got approval for the purpose of recognition of Scientific and Industrial Research Organisation first time on 17.06.2010. There might be a good intention at the end of the recipient but it has detr....
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.... the paper book compiled by the Revenue would have not formed a bonafide belief about giving donation to one entity across India in Kolkata. This material speaks in itself that under a criminal conspiracy, these donations have been arranged by the brokers across India for defrauding the nation. We do not find any credence in the belief of bonafide raised by the appellants. 39. We are aware of the facts that a large number of orders have been passed in favour of the assessee by ITAT and some of those were upheld by Hon'ble High Courts also. We have extracted one of the orders from Hon'ble Gujarat High Court. The Hon'ble Supreme Court in the case of CIT -vs.- Batanagar Education & Research Trust reported in 129 taxmann.com 30, whose copy has been placed on the record by the ld. CIT(DR), has considered the identical material, which has been placed before us also. In the case of Batanagar Education & Research Trust, the facts are that during the course of survey at the premises of SHG&PH, and in post survey inquiry statement of Shri Ramendra Lahiri, Managing Trustee of the assessee, i.e. Batanagar Society was recorded. The Secretary, Smt. Samadrita Mukherjee Sardar and Treasurer Smt....
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.... Trust and claimed deduction under section 35(1)(ii) nor it has returned the money in cash out of a small donation received by it from Herbicure, a similar Trust to SHG&PH. Hon'ble High Court has held that Tribunal has rightly set aside the order passed by the ld. Commissioner vide which registration was cancelled. In our opinion, it is purely a fact-based decision without laying down any particular proposition of law, rather an inference could be drawn from it that if there is no element of fraud committed by an assessee, then such an assessee does not deserve to be punished. This case cannot buttress any of the contentions of the appellants before us. 42. It is also pertinent to note that it is not a simple case of claiming deduction on fulfilment of conditions under section 35(1)(ii) of the Income Tax Act, rather it is a case where Revenue has disproved this claim and proved that, with a criminal mind all such donors have layered their transaction in such a manner which apparently appears to be genuine, but in reality not genuine. They took such a step to commit fraud, an economic offence against the economy of the country. 43. The bonafide of the assessees can be apprecia....
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.... for the assessees. The appellants are not entitled for deduction under section 35(1)(ii) of the Income Tax Act. This finding is subject to our finding on other preliminary issues in the case of Abhilasha Tradecom Pvt. Limited i.e. ITA Nos. 132 & 133/KOL/2021. In ITA Nos. 132 & 133/KOL/2021, assessee has challenged the reopening of the assessment. We will be deciding this issue in the following part of the judgment. Similarly in the case of Tarasafe International Pvt. Limited, i.e. ITA No. 261/KOL/2020, the assessee has taken an additional ground of appeal, which we are taking up separately in the following part. 45. First we take the additional ground of appeal taken by Tarasafe International Pvt. Limited (ITA No. 261/KOL/2020). The assessee has filed an application for permission to raise additional ground of appeal. Such permission was allowed to the assessee vide Interim order dated 20.07.2022, which reads as under:- 20.07.2022:- Ld. Counsel for the assessee filed an application dated 20th July, 2022 pleading the rein that notice issued under section 143(2) dated 04.09.2014 for scrutinising the return of assessee for A.Y. 2013-14 is without jurisdiction. He submitte....
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....p; Sd/- Manish Borad Rajpal Yadav Accountant Member Vice-President (KZ) 46. Ld. Counsel for the assessee submitted that notice under section 143(2) dated 04.09.2014 was issued upon the assessee by Income Tax Officer, Ward-10(3), Kolkata. This notice was issued for scrutinizing the return of the assessee. According to the assessee, ITO, Ward-10(3) was not having jurisdiction over the assessee, rather such jurisdiction vested in Addl. Commissioner/Deputy Commissioner of the Income Tax. For buttressing his contention, he made reference to the CBDT Instruction bearing No. 1 of 2011 dated 31.01.2011. He placed on record the copy of such Instruction. He submitted that according to the Instructions, the notice under section 143(2) ought to have been issued by Dy. Commissioner/Asstt. Commissioner and, therefore, in the absence of such notice, no assessment ought to have been passed. For buttressing his contention, he put reliance u....
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....present it is different:- "Assessment 143(1: x x x x x x x x x x x x x x x x (2) Wher e a return has been f urnished under section 139, or in response to a notice under sub-section (1) of section 142, the Assessing Off icer shall,- (i) where he has reason to believe that any claim of loss, exemption, deduction, allowance or relief made in the return is inadmissible serve on the assessee a notice specifying particulars of such claim of loss, exemption, deduction, allowance or relief and require him, on a date to be specified therein to produce, or cause to be reproduced, any evidence or particulars specified therein or on which the assessee may rely, in support of such claim; [Provided that no notice under this clause shall be served on the assessee on or after the 1s t day of June, 2003]; (ii) notwithstanding anything contained in clause (i), if he considers it necessary or expedient to ensure that the assessee has not computed excessive loss or has not under-paid the tax in the manner, serve on the assessee a notice requiring him, on a date to be specified therein, either to attend his office or to produce, or cause to be produ....
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....with book profit exceeding Rs. 50 lakhs. (i) cases of universities, educational institutions, hospitals, nursing homes and other institutions for rehabilitation of patients (other than those, which are substantially financed by the Government), the aggregate annual receipts of which exceed Rs. 10 crore in Delhi, Mumbai, Chennai, Kolkata, Pune, Hyderabad, Bangalore and Ahmedabad, and Rs. 5 crores or above in other places. [Ref. section.10(23C) & Rule 2BC] (j) Cases where total value of International Transactions (as defined under section 92B) exceeds Rs. 5 crore. (k) All non-Banking Financial Corporations (NBFCs)/Investment Companies having paid-up capital of more than Rs. 10 crores. (l) All cases of stockbrokers (including sub-brokers) where brokerage received is disclosed at Rs. 1 crore or above and income declared is less than 10% of such brokerage. (m) All cases of stockbrokers (including sub-brokers) in which bad debts of Rs. 10 lakhs or more have been claimed. (n) Cases of amalgamated companies claiming set-off of loss under section 72A. (o) All cases of deduction under section 10A and/or 10B with export turnover e....
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....Tax. He might have not formed an opinion to issue notice under section 143(2) of the Income Tax Act. This argument is misplaced because this selection of the cases for scrutiny has been computerized and the cases are being selected under CASS means Computer Assisted Scrutiny System. A unanimous view is being taken laying down the procedure that which type of cases will be selected for scrutiny that would eliminate pick and choose and discretion of any Assessing Officer. It is similar to the procedure followed by Registries of all the High Courts, where cases are being allocated for fixation before particular Benches for hearing on the basis of policy formulated by the Hon'ble Chief Justice of the concerned High Court. In order to appreciate this issue, we have taken note of the procedure for selection of cases for scrutiny contemplated in every year. There is no jurisdictional element involved in that. Notice is to be issued after the analysis of the computer on the basis of PAN data of an assessee. In other words, the first jurisdiction is with the ITO, Ward-10(3) and for the purpose of distribution of work in order to remove the hardship to the taxpayers/ the professionals, it is....
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....assessee cannot give concession for assumption of jurisdiction, but that issue is not involved in the present case. Here a simple issue is, whether section 143(2) contemplates that in selection of the cases for scrutiny assessment, there is a jurisdictional issue involved. If it is to be construed as involved, then what is the meaning of CBDT guidelines providing the process for selection of cases for scrutinies. There is not even a single judgment from any of the Hon'ble High Court or of the Hon'ble Supreme Court propounding therein that if ld. Assessing Officer failed to record his satisfaction for selecting a particular case for scrutiny assessment and issuance of a notice under section 143(2) would be invalid. If that be so, how it will become a jurisdictional aspect. 54. The next aspect is that there are orders of the ITAT on this point, mostly from Kolkata, wherein it has been accepted that Instruction no. 1 of 2011 infuses a jurisdiction in different Assessing Officers instead of ease of assessment on the basis of return of income filed by the assesses. In other words, it is mere allocation of work after selection of scrutiny. We would have made a reference for constituti....