2024 (9) TMI 1764 - AT - Income Tax

Revision u/s 263 - as per CIT deduction u/s.80G in respect of Corporate Social Responsibility (CSR) expenditure was allowed by AO without making further enquiries - PCIT held that if CSR expenses is not allowable u/s. 37(1) r.w. Explanation (2) then same expenses cannot be allowed u/s.80G because what is prohibited u/s.37(1) cannot be allowed u/s.80G HELD THAT - As from the perusal of the re-assessment order which is the subject matter of revision u/s.263 by PCIT we find that this was one of the ground for reopening and AO has raised specific query as noted above on exactly same issue. Assessee has given its detailed reply and after examining those replies AO has allowed the deduction u/s.80G holding that assessee has already disallowed CSR expenses u/s.37(1) and there is no bar for claiming deduction u/s.80G unless the same is not in accordance with the provision of the Section 80G and there is no issue of mutual exclusiveness of the claim found in this regard. PCIT has not brought on record any law or judicial precedence that such an observation and finding of the ld. AO is incorrect in law. Once the ld. AO has taken a possible view and there is no contrary law then to take a different view in a revisionary jurisdiction u/s.263 cannot be held that the order of the ld. AO is erroneous and prejudicial to the interest of the Revenue. There is no case of invoking Explanation 2 to Section 263 which ld. PCIT has done because ld. AO has made his enquiry and verification on the same issue. Ld. PCIT cannot cancel the assessment order to re-examine the same issue without finding any defect in such order that how the claim made u/s.80G is unsustainable in law. Allowability of deduction claimed u/s 80G on CSR expenditure when it is not allowable u/s. 37(1) - On merits also we find that view of ld. AO is correct in law. Claiming a deduction from computation of business income as provided from sections 28 to 44DB is different from claiming a deduction under chapter VIA of the Act which is allowed from Total Income. As per Explanation 2 to Section 37 CSR expenditure is not allowable as deduction while computing the business income under the provision of Section 28-44DB whereas deduction u/s.80G is allowed while computing the total income under Chapter VIA. There is no pre-condition that claim for deduction u/s.80G on a donation should be voluntary. It is independent of computation of business income as it is allowed from Gross Total Income. The assessee had disallowed the CSR expenses while computing business income. There is no dispute that the assessee has filed complete details of donation and also filed the certificate u/s.80G which was enclosed before the AO. Section 80G (1) of the Act provides that in computing total income of the assessee they shall be deducted in accordance with the provision of Section such sum paid by the assessee in the previous year as a donation. Deduction under Chapter VIA provides deduction from the gross total income which is computed after making necessary allowances / disallowances in accordance with Section 28-44BB of the Act including Explanation to Section 37(1). Thus Section 37(1) and Section 80G of the Act are independent and the principles governing what is not allowable u/s. 37(1) have been provided in the section itself. There is nothing that if any expenditure is disallowable u/s 37 the same cannot be allowed under other provisions of Act if the conditions of allowability are satisfied. Thus allowing the claim of deduction u/s.80G by the ld. AO cannot be held to be unsustainable in law or amounts to erroneous and prejudicial to the interest of the Revenue. Thus order of the Ld. PCIT is reversed on this point. Appeal of the assessee is allowed.

Summary

1. ISSUES PRESENTED and CONSIDERED

The core legal questions considered by the Tribunal in this appeal are:

• Whether the Principal Commissioner of Income Tax (PCIT) had jurisdiction to invoke revisionary powers under Section 263 of the Income-tax Act to revise the assessment order passed by the Assessing Officer (AO) with respect to the allowability of deduction claimed under Section 80G of the Act in relation to Corporate Social Responsibility (CSR) expenditure.
• Whether CSR expenditure, which is disallowed as a business expenditure under Section 37(1) read with Explanation 2, can be allowed as a deduction under Section 80G of the Income-tax Act.
• Whether the reassessment proceedings initiated under Section 147 and completed under Section 147 read with Section 144B were justified on the ground of escapement of income due to the claim of deduction under Section 80G for donations linked to CSR expenditure.
• The interplay and mutual exclusivity, if any, between disallowance under Section 37(1) and allowance under Section 80G of the Act.

2. ISSUE-WISE DETAILED ANALYSIS

Issue 1: Jurisdiction and Validity of Revision under Section 263

Relevant legal framework and precedents: Section 263 empowers the PCIT to revise an order passed by the AO if the order is erroneous in so far as it is prejudicial to the interests of the Revenue. However, it is well established that revision cannot be based on mere change of opinion or re-examination of facts already considered by the AO.

Court's interpretation and reasoning: The Tribunal observed that the ld. AO had conducted detailed enquiries during both original and reassessment proceedings regarding the claim under Section 80G. The AO had examined the submissions, documents, donation receipts, and certificates filed by the assessee and allowed the deduction under Section 80G. The PCIT's revision order did not bring any new evidence or legal precedent to establish that the AO's order was erroneous or prejudicial to Revenue. The Tribunal emphasized that the reassessment had been initiated based on the same material already considered by the AO, constituting a mere change of opinion, which is not a valid ground for reopening or revision under Section 263.

Key evidence and findings: The assessee had submitted detailed financial statements, tax audit reports, revised returns, and donation receipts during assessment. The AO's assessment order recorded acceptance of the claim after verification. The PCIT did not demonstrate any defect or illegality in the AO's order.

Application of law to facts: The Tribunal held that since the AO had made a possible and reasonable view based on the material, the PCIT could not substitute his opinion through revisionary jurisdiction. The absence of any legal or factual defect in the AO's order precluded exercise of revision powers.

Treatment of competing arguments: While the PCIT argued that the deduction under Section 80G should not be allowed because CSR expenditure is disallowed under Section 37(1), the Tribunal found this argument unsubstantiated in law and fact. The AO's order was upheld as not erroneous.

Conclusion: The PCIT's order revising the AO's order under Section 263 was quashed for lack of jurisdiction and absence of error or prejudice to Revenue.

Issue 2: Allowability of Deduction under Section 80G in Respect of CSR Expenditure

Relevant legal framework and precedents: Section 37(1) read with Explanation 2 disallows CSR expenditure as a business expense. Section 80G provides deduction from gross total income for donations made to specified funds or charitable institutions, subject to conditions. The Finance Act 2014 introduced Explanation 2 to Section 37(1) to clarify non-allowability of CSR expenses as business expenditure. However, Section 80G deductions are independent and relate to donations qualifying under that section.

Court's interpretation and reasoning: The Tribunal noted that disallowance under Section 37(1) is for computing business income, whereas deduction under Section 80G is from gross total income under Chapter VIA. These provisions operate independently. The Tribunal emphasized that the assessee had already disallowed CSR expenses under Section 37(1) in the computation of business income and separately claimed deduction under Section 80G for donations made, supported by proper documentation and certificates.

The Tribunal further referred to the Ministry of Corporate Affairs (MCA) General Circular No. 01/2016 dated January 12, 2016 (FAQ No. 6), which clarified that no specific tax exemptions are extended to CSR expenditure per se under Income-tax Act but spending on activities covered under Schedule VII of the Companies Act may qualify for exemptions under various sections of the Income-tax Act, including Section 80G.

Key evidence and findings: The assessee submitted detailed documents evidencing donations, including donation receipts and certificates under Section 80G. The AO verified these and found no violation of the conditions for claiming deduction under Section 80G. The assessee did not claim deduction under clauses of Section 80G(2)(a) which exclude CSR-related funds such as Swachh Bharat Kosh and Clean Ganga Fund.

Application of law to facts: The Tribunal held that the disallowance of CSR expenses under Section 37(1) does not preclude claiming deduction under Section 80G if the donations satisfy the conditions of Section 80G. The provisions are independent and serve different purposes in the computation of income.

Treatment of competing arguments: The Revenue argued that since CSR expenses are disallowed under Section 37(1), the same cannot be allowed under Section 80G. The Tribunal rejected this, noting the statutory distinction and the absence of any bar in the Act or judicial precedent to such dual treatment.

Conclusion: Deduction under Section 80G for donations made, even if related to CSR activities, is allowable if conditions of Section 80G are met, notwithstanding disallowance under Section 37(1).

Issue 3: Validity of Reassessment Proceedings under Section 147

Relevant legal framework and precedents: Reopening of assessment under Section 147 requires existence of tangible material indicating escapement of income. Mere change of opinion or re-examination of the same material is not permissible.

Court's interpretation and reasoning: The Tribunal found that the reassessment was initiated primarily on the ground that CSR expenses were disallowed under Section 37(1), but the assessee claimed deduction under Section 80G. However, the AO had already examined and allowed the claim under Section 80G after due verification. No fresh material was brought on record to justify reopening.

Key evidence and findings: The reassessment notice and show-cause did not rely on any new evidence beyond the original assessment record. The assessee's detailed submissions during original assessment were not controverted by any fresh material.

Application of law to facts: The Tribunal concluded that the reassessment was based on a mere change of opinion and was therefore unwarranted. The AO's acceptance of the claim under Section 80G after verification negated the basis for reassessment.

Treatment of competing arguments: The Revenue contended reassessment was justified due to alleged escapement of income. The Tribunal rejected this, emphasizing the absence of new tangible material.

Conclusion: The reassessment proceedings were not justified and the claim under Section 80G was rightly allowed by the AO.

3. SIGNIFICANT HOLDINGS

The Tribunal established the following core principles and final determinations:

• "Once the ld. AO has taken a possible view and there is no contrary law, then to take a different view in a revisionary jurisdiction u/s.263, cannot be held that the order of the ld. AO is erroneous and prejudicial to the interest of the Revenue."
• "Claiming a deduction from computation of business income as provided from sections 28 to 44DB is different from claiming a deduction under chapter VIA of the Act which is allowed from Total Income."
• "Section 37(1) and Section 80G of the Act are independent and the principles governing what is not allowable u/s. 37(1) have been provided in the section itself."
• "Allowing the claim of deduction u/s.80G by the ld. AO cannot be held to be unsustainable in law or amounts to erroneous and prejudicial to the interest of the Revenue."
• "The reassessment proceedings initiated on the same material already examined by the AO constitute mere change of opinion and are unwarranted."

The Tribunal reversed the order of the PCIT invoking Section 263, quashed the revisionary order, and upheld the AO's allowance of deduction under Section 80G in respect of donations made, despite CSR expenditure being disallowed under Section 37(1). The appeal of the assessee was accordingly allowed.