TMI Blog1996 (12) TMI 121X X X X Extracts X X X X X X X X Extracts X X X X ..... entioned by the CIT(A) at page 2 of his impugned order dated 21-1-1991. The CIT(A) therefore passed the impugned order dated 21-1-1991 after giving a fresh opportunity of being heard to the assessee. 2. The assessee had claimed deduction of Rs. 15 lakh under section 35CCA in respect of donation to M/s Sigma Medical Aid Research Society (hereinafter referred to as SRS for short). The Assessing Officer wrote a letter to the CIT, Bombay for the purpose of verification of the claim of the assessee whether SRS has been recognised as an institution under section 35CCA, Bombay. The Assessing Officer has mentioned in the assessment order that relief will be given to the assessee after receipt of the reply from the CIT, Bombay. The assessee felt aggrieved and agitated and went up in appeal. The CIT(A) observed that the assessee has taken loan for the purpose of making donation of Rs. 15 lakh to SRS which was claimed as deduction under section 35CCA of the IT Act. The CIT(A) has mentioned that Sri Hari of Khoday has paid by cheque on 18-2-1983 the sum of Rs. 15 lakh to the assessee and almost on the same day the assessee has in his turn made donation to SRS of like amount. The CIT(A) obs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... withdrawn by the State level committee on 28-1-1987 and so the donation made by the assessee cannot be considered as made to an institution approved for the purpose of section 35CCA. The CIT(A) has mentioned in his order at pave 14/15 that society seemed to have given certificates obviously for commission and not for development. Thus the CIT(A) disallowed the donation to SRS. Similarly in the case of Aparna Ashram, the CIT(A) found that a certificate to the effect that the sum of Rs. 20 lakh supposed to have been paid by the assessee did not exceed the cost of programme including similar deductions received from other donors, should be obtained and filed before the Assessing Officer for the purpose of section 35(2A). Such a certificate was not-filed before the Assessing Officer and therefore the CIT(A) held that deduction is not admissible u/s. 35(2A) of the Act. 4. It was also claimed before the CIT(A) that the contribution was made by firm M/s. George Wines and not by the assessee as mentioned by the CIT(A) at page 18 of the impugned order dated 21-1-1991. The CIT(A) however found that the claim of the assessee that the contribution were made by the firm M/s. George Wines was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arna Ashram. The assessee is aggrieved by this order and is in appeal before us. 7. It is argued by the learned counsel that deduction under section 35CCA and 35(2A) is admissible even if the donation are made by taking loans. The learned counsel has pointed out that the assessee has made the donation to these two institutions and produced relevant receipts before the Assessing Officer. And that if approval under section 35CCA has been withdrawn by the prescribed authority the assessee should not be denied deduction under these sections in respect of donation. It was argued by the counsel that under section 35(2A) there is no requirement of certificate as mentioned by the CIT(A). It is also mentioned by the learned counsel that now the department want to tax the firm in respect of wine business and the matter has not become final. The learned Departmental Representative supported the orders of the authorities below and also referred to page 1296, Vol. 1, Fourth Edition of Chaturvedi Pithisaria. It is argued by the learned Departmental Representative that the approval granted to SRS has been withdrawn because it was found by the department that the said society has not been carr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ower to create, according to the section, is exercisable in the like manner and subject to like sanction and conditions, if any, as govern the making of the notification, order, etc. It, therefore, follows that the power to cancel, modify, amend etc., must necessarily be exercised within the limits prescribed under the section. It is also fundamental that the nature and extent of the application of this section must be governed by the relevant statute which confers the power to issue the notification." Since there is no restriction on the power of prescribed authority to withdraw the granted approval under section 35CCA of the Act, the assessee is not entitled to deduction in respect of donation to SRS because the approval granted earlier under section 35CCA of the IT Act has been withdrawn on 28-1-1987 by the prescribed authority. The decision of the Kerala High Court in the case of Cochin Devaswom Board is squarely applicable to the case of the assessee. We therefore confirm the action of the CIT(A) in confirming the disallowance of donation of Rs. 15 lakh made by the assessee to SRS as the approval granted was withdrawn by the prescribed authority and the conditions under sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the issue is restored to the file of the Assessing Officer, no finding is given in respect of arguments raised by the assessee's counsel. 9. The ground of appeal in respect of donation to SRS is dismissed and the ground of appeal relating to donation to Aparna Ashram is treated as allowed for statistical purposes. 10. The next ground of appeal is that the CIT(A) erred in disallowing 1/5 of car maintenance expenses without appreciating that the turnover of the business require the extent of expenditure incurred for the year. We have heard the rival submissions of both the parties. No log book has been maintained to show the use of the car for the purpose of business. The personal use of car is not ruled out and we feel that 1/5 of the car maintenance expenditure for personal use is reasonable. We dismiss this ground of appeal. 11. The next ground of appeal is that CIT(A) erred in inviting the provisions of section 271(1)(c) which is not justified. There is no appeal against initiation of penalty under section 271(1)(c) and therefore this ground of appeal is dismissed. 12. During the course of hearing, it was argued by the learned counsel of the assessee that department is c ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
