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2020 (3) TMI 1270 - ITAT AHMEDABADEntitled for the benefit of the donation made to “SHG & PH” u/s 35(1)(ii) - donations made to the institution “SGH & PH” and “NCT” - HELD THAT- Regarding the donations made to “SGH & PH” it is the undisputed facts that at the relevant time of donation to “SHG & PH”, the institution was approved u/s 35(1)(ii) though such approval has been withdrawn on a later date by the Government by issuing notification. Thus, the assessee cannot be denied the benefit of deduction provided u/s 35(1)(ii) merely on the ground that the approval was withdrawn by the Government on a later date. We place our reliance on the order of this tribunal involving identical issue which has been decided in favour of the assessee in the case of ACIT v/s M/s Thakkar Govindbhai Ganpatlal HUF [2019 (7) TMI 1559 - ITAT AHMEDABAD]. We disagree with the finding of the authorities below. Accordingly we hold that the assessee is entitled for the benefit of the donation made to “SHG & PH” u/s 35(1)(ii) of the Act. Regarding the donation made to the “NCT”, we note that the benefit of the deduction under section 35AC of the Act was denied to the assessee on the reasoning that the trustee of such trust in the statement given under section 133A during the survey operation has admitted the fact the NCT is engaged in the activity of providing the accommodating entries to the parties. Admittedly there was no cross-examination provided to the assessee of the trustees who have admitted to be engaged in providing accommodating entries. Thus the question arises whether the assessee can be denied the benefit of the deduction under section 35AC on the basis of the statement recorded during survey operation which were not cross verified despite the request was made to the AO by the asssessee. 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 in the case of CIT v/s Chartered Speed Pvt. Ltd [2015 (3) TMI 809 - GUJARAT HIGH COURT]. Revenue has not brought any tangible material suggesting that the donation paid by the assessee to “NCT” has come back to it in the form of cash. Thus in the absence of necessary documentary evidence, we are not inclined to confirm the order of the authorities below. We set aside the finding of the learned CIT (A) and direct the AO to delete the addition made by him. Hence the ground of appeal of the assessee is allowed.
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