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2022 (11) TMI 357 - AT - Income TaxReopening of assessment u/s 147 - weighted deduction u/s 35(1)(ii) - HELD THAT:- In order to be eligible for such weighted deduction u/s 35(1)(ii) assessee had given donation of Rs.1.00 Crore to School of Human Genetics and Population Health concern which is registered u/s 35 - As regards School of Human Genetics and Population Health (Research Organisation), a report was received by the investigation Wing, Kolkata to the AO that a survey action u/s 133A of the Act was conducted which had approval u/s 35(1)(ii). As further observed that during the course of survey proceedings conducted on 27-01-2015 in the case of School of Human Genetics and Population Health (Research Organisation), it came to the light that the donors in connivance with various brokers, entry operators, donees etc. misued the benefit conferred u/s 35(1)(ii) of the Act by undertaking bogus donations. The AO elaborately discussed the modus operandi of misusing the amount in the garb of donations to the School of Human Genetics and Population Health (Research Organisation) who subsequently disallowed the deduction and Rs.1.75 crore was added back to the income of the assessee. In first appeal, the assessee took the resort of ITAT, Jaipur Bench, Jaipur order dated 05-07-2018 whereby the appeal of the assessee for the assessment year 2012-13 was allowed by ld. CIT(A). It is noteworthy to mention when School of Human Genetics and Population Health (Research Organisation) before the Settlement Commission for the assessment year 2012-13, 2013-14 and 2014-15 had accepted that it did not carry out significant research work in the fields for which it was granted exemption/ approvals and the alleged donations received from the donors were refunded. All the judicial precedents available were even in the case of the assessee’s own case and other relied upon judgments are prior to the decision of the settlement commission in the case of the party to whom the donation were given and also prior to the judgement of Honourable supreme court in case of CIT V Batanagar Education trust [2021 (8) TMI 139 - SUPREME COURT] where cancellation of registration of The Trust u/s 12 A as well as 80 G were upheld and this trust has also connection to the same society where the assessee has. Thus, when the recipient of donation has confirmed that donation were taken in lieu of cash and no activity is done, it would be too naïve to believe that assessee has donated sum in good faith. The Bench feels that the assessee has adopted the unfair means to take the benefit under the garb of Section 35(1)(ii) amounting to Rs.1.75 Crore. Hence, taking into consideration the above facts, circumstances of the case as well as the order of the Hon’ble Settlement Commission, we do not concur with decisions of the ld. CIT(A). Thus, the appeal of the Department for the assessment 2012-13 is allowed. It is not imperative to repeat the facts of the Departmental appeal for the assessment year 2013-14 being similar issue, therefore, the decision taken by us in the appeal of the Department for the 2012-13 shall apply mutatis mutandis. Thus, both the appeals of the Department are allowed.
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