2025 (6) TMI 1033 - AT - Income Tax

Reopening the assessment u/s. 147 - allegation of ineligible claim of weighted deduction to the assessee - HELD THAT - The issue is squarely covered in the case of Joshi Technologies International Inc 2023 (12) TMI 1161 - ITAT AHMEDABAD wherein held Institute to which donation was made by the assessee during the impugned year and weighted deduction claimed thereon u/s. 35(1)(ii) of the Act was not approved for the said purposes for the impugned year. The fact on record available with the CIT is that the approval granted to the said Institute expired on 31/03/2006. Impugned year before us is A.Y 2015-16. The Advisory issued by the CBDT in December-2018 brought this fact to the notice of all its Field Officers. Therefore the fact on record was that the said Institute was not approved for receiving donations u/s. 35(1)(ii) of the Act during the impugned year. Assessee appeal allowed.

Summary

The core legal questions considered in this appeal include: (1) Whether the order of the Commissioner of Income Tax (Appeals) violated the principles of natural justice and section 250(6) of the Income Tax Act by not affording a reasonable opportunity of hearing; (2) The validity of reopening the assessment under section 147 and issuance of notice under section 148; (3) The correctness of disallowing the deduction claimed under section 35(1)(ii) of the Income Tax Act in respect of donation to Shri Arvindo Institute of Applied Scientific Research Trust; (4) Whether the addition made by relying on a statement recorded under section 131 without providing copy or opportunity to cross-examine violates natural justice; (5) The correctness of additions/disallowances made on account of discrepancy in TDS and unexplained sales promotion and sales commission expenses.

Regarding the alleged violation of natural justice and section 250(6), the appellant contended that the Commissioner of Income Tax (Appeals) erred in not providing a reasonable opportunity of hearing and cross-examination on the statement recorded under section 131. The appellant relied on various judicial pronouncements emphasizing the right to cross-examination. However, the Tribunal referred to authoritative rulings, including decisions of the Hon'ble Supreme Court and High Courts, which clarify that the right to cross-examination is not absolute and depends on the circumstances and statutory framework. In this case, the statement under section 131 was recorded in an investigation of the Trust and was not adverse evidence directly against the appellant. The Tribunal relied on the observation from a High Court decision that as long as the party charged is given a fair and reasonable opportunity to see, comment, and criticize the evidence, the demands of natural justice are satisfied, and cross-examination in the strict judicial sense is not mandatory. Consequently, the Tribunal held that there was no violation of natural justice in relying on the statement without cross-examination.

On the issue of reopening the assessment under section 147 and issuance of notice under section 148, the appellant challenged the validity of the reopening. The Tribunal noted that the Assessing Officer received credible information from the Department of Scientific and Industrial Research and the trustee of the Trust, Shri Umesh C. Nagda, who admitted that the Trust was not engaged in scientific research and was not registered under section 35(1)(ii). Moreover, the Department confirmed the Trust was not a recognized research institution. Based on this material, the Assessing Officer recorded reasons, obtained approval, and issued notice under section 148. The Tribunal found the reopening was justified and in accordance with law, given the new information indicating the original assessment was erroneous or incomplete.

The principal substantive issue concerned the disallowance of deduction under section 35(1)(ii) claimed on a donation of Rs. 5,00,000/- to the Arvindo Institute of Applied Scientific Research Trust. The appellant argued that the donation was eligible for a 175% weighted deduction as the Trust was a recognized research institution, and the claim was bonafide and supported by relevant documents, including receipts and certificates issued by the CBDT. The appellant contended that the Assessing Officer and Commissioner of Income Tax (Appeals) erred in disallowing the deduction without sufficient evidence and in violation of natural justice.

The Tribunal extensively examined the legal framework governing weighted deductions under section 35(1)(ii), which permits such deduction only if the donation is made to an approved research association or institution. The critical legal question was whether the Trust held valid approval during the relevant assessment year. The Tribunal referred to a CBDT Advisory dated 14.12.2018, which clarified that the Trust's approval had expired on 31.03.2006 and that subsequent donations were based on forged certificates. The Advisory warned field officers that the Trust was not eligible to receive donations for scientific research purposes post-expiry and that claims of weighted deduction based on such donations were irregular.

The Tribunal acknowledged that the appellant and Assessing Officer had relied on documents provided by the Trust indicating eligibility. However, it emphasized that eligibility for deduction is determined by law and not by the bonafide belief of the assessee or the Assessing Officer. The Tribunal held that even if the deduction was claimed bonafide, if it is found ineligible under law, it cannot be allowed. The Tribunal distinguished a precedent cited by the appellant, noting that the CBDT Advisory did not withdraw approval but clarified that approval was not subsisting after 31.03.2006 and that donations received thereafter were fraudulent. Hence, the allowance of deduction was an error in the original assessment order.

Regarding the addition of Rs. 8,730/- on account of discrepancy in TDS as per Form 26AS vis-`a-vis the return, the appellant contended that all receipts were duly disclosed and offered for taxation. The Tribunal found no merit in this ground as the Assessing Officer's addition was based on undisclosed receipts, and the appellant failed to provide satisfactory explanation or evidence to rebut the discrepancy.

Similarly, the disallowance of Rs. 10,16,499/- on account of unexplained sales promotion and sales commission expenses was challenged. The appellant contended these expenses were incurred wholly and exclusively for business purposes. However, the Tribunal noted the appellant's failure to furnish details despite repeated notices under section 142(1). The Assessing Officer's addition was thus upheld as justified due to lack of explanation and evidence.

In sum, the Tribunal applied the relevant provisions of the Income Tax Act, including sections 35(1)(ii), 131, 143(3), 147, 148, and 250(6), and considered judicial precedents on natural justice and procedural fairness. The Tribunal found that the reopening was valid, the disallowance of the weighted deduction was legally correct given the expired approval and fraudulent claims, and the additions on TDS discrepancy and unexplained expenses were justified due to lack of evidence. The Tribunal rejected the appellant's arguments on violation of natural justice and the right to cross-examination, holding that the procedural requirements were met.

Significant holdings include the following verbatim excerpts capturing the Tribunal's legal reasoning:

"...as long as the party charged has a fair and reasonable opportunity to see, comment and criticize the evidence, statement or record on which the charge is being made against him, the demands and the test of natural justice are satisfied and cross examination in that sense is not a technical cross examination in a Court of Law."

"...the fact on record available with the Ld. CIT is that the approval granted to the said Institute expired on 31/03/2006. Impugned year before us is A.Y 2015-16. The Advisory issued by the CBDT in December-2018 brought this fact to the notice of all its Field Officers. Therefore, the fact on record was that the said Institute was not approved for receiving donations u/s.35(1)(ii) of the Act during the impugned year."

"Even if the assessee and the AO had bonafidely claimed and allowed respectively the deduction based on documents furnished by the said Institute, the fact still remains that the claim was not allowable as per law. What is material for claiming deduction is its eligibility as per law and not the intention with which it is claimed, whether bonafidely or malafidely."

"The subsequently issued advisory of the CBDT only reiterates the fact of donations to the said institute being ineligible for deduction to donors u/s.35(1)(ii) of the Act."

"In view of the above, we have no hesitation in upholding the order of the Ld.CIT holding the assessment order erroneous for having allowed a patently ineligible claim of weighted deduction to the assessee."

Accordingly, the Tribunal dismissed the appeal on all grounds, confirming the reopening of assessment, the disallowance of the weighted deduction claimed under section 35(1)(ii), and the additions on account of TDS discrepancy and unexplained expenses. The Tribunal's decision underscores the principle that eligibility for tax deductions must be strictly governed by statutory provisions and approved status, and that procedural fairness does not necessarily mandate the right to cross-examination in administrative proceedings where the evidence is not directly adverse to the assessee.