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TMI Blog2019 (6) TMI 1504X X X X Extracts X X X X X X X X Extracts X X X X ..... al contentions have been heard and record perused. The brief facts of the case are that the appellant company was engaged in the wholesale business of pharmaceuticals. It filed its return of income for the year under consideration declaring total income at Rs. 20,57,840/- and the assessment was completed determining total income at Rs. 35,69,840/- wherein the deduction of Rs. 14 Lac claimed by the appellant u/s 35(1)(ii) was disallowed. During course of scrutiny assessment, the A.O. observed that during the year under consideration, the appellant had made donation of Rs. 8 Lac to "School of Human Genetics & Population Health" (M/s SHG & PH), which was notified by the CBDT for claiming deduction u/s 35(1) (ii). A survey u/s 133A of the Act was conducted at the said institute on 27.01.2015 and it was found that the said institute was providing accommodation entries and accordingly, CBDT, vide Notification No.82/2016 (F N 203/64/2009/ITA.II) dated 15.09.2016 has rescinded the notification number 4/2010 dated 28.01.2010. Accordingly, the A.O. disallowed assessee's claim U/s 35(1)(ii) of the Act. Before the ld. CIT(A), it was the contention of the assessee that the impugned payment of R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 07/2018 and also the decision of the Coordinate bench of Kolkata in the case of DCIT Vs Maco Corporation (India) Pvt. Ltd. in ITA No. 16/Kol/2017 order dated 14/3/2018. The precise observation of the Tribunal in the case of M/s P.R. Rolling Mills Pvt. Ltd. Vs DCIT (supra) was as under: "7. The Bench have heard both the sides on the issues raised in appeal, perused the material available on the record and also considered the case laws relied upon. The assessee is a private limited company engaged in manufacturing of rolled steel products. Return of income was filed electronically on 26/09/2014. The assessee has claimed weighted deduction U/s 35(1) (ii) of the Act. The assessee had made donation to an institute engaged in Scientific Research. The authorities below has not allowed the deduction. The assessee had made donation of Rs. 1,00,00,000/- to School of Human Genetics & Population Health, an institute engaged in scientific research and notified by the Central Board of Direct Taxes in terms of Section 35(1)(ii) of the Act vide notification No.4/2010 dated 28/01/2010. The institute, whom the donation was made was in existence and notified during the F.Y. 2013-14 when the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subsequent to the payment of such sum by the assessee, the approval granted to the association, university, college or other association, university, college or other institution, referred to in clause (ii) or clause(iii) has been withdrawn. The assessee has made donation i.e. on 13/01/2014, the institute was having a valid approval from the appropriate authorities and the assessee's claim cannot be denied. The Coordinate Bench of Kolkata ITAT in the case of M/s Maco Corporation (India) Pvt. Ltd. in ITA No. 16/Kol/2017, copy of which has been placed at page Nos. 82 to 91 of the paper book, wherein the donation was made to the same institute i.e. school of Human Genetics and Population Health, was held that in view of explanation to Section 35(1)(ii) of the Act, would not be withdrawn subsequently when recognition has been rescinded. Similarly the Coordinate Bench of Kolkata ITAT in the case of Saimed innovation Vs. ITO in ITA No. 2231/Kol/2016 order dated 13/09/2017 has held that weighted deduction claimed U/s 35(1)(ii) of the Act cannot be denied on the basis of statement recorded during the survey and no opportunity was provided to cross examine the third party, who has give ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the recognition granted to the payee had been withdrawn subsequent to the date of contribution by the assessee. Hence no disallowance u/s 35(1)(ii) of the Act could be made in the instant case. 8.3. We find that there is no provision in section 35(1)(ii) of the Act to withdraw the recognition granted to the assessee therein. When there is no provision for withdrawal of recognition in the Act, the action of the revenue in withdrawing the recognition with retrospective effect from 1.4.2007 is unwarranted. In this regard, the recent decision of the Hon'ble Supreme Court in the case of Industrial Infrastructure Development Corporation (Gwalior) M.P. Ltd vs. CIT Gwalior reported in (2018) 90 taxmann.com 281 (SC) wherein it was held that :- 21. In our considered opinion. the CIT had no express power of cancellation of the registration certificate once granted by him to the assessee under Section 12A till 01.10.2004. It is for the reasons that, first, there was no express provision in the Act vesting the CIT with the power to cancel the registration certificate granted under Section 12A of the Act. Second, the order passed under Section 12A by the CIT is a quasi-judicial order an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourts, namely, Delhi High Court in the case of DIT (Exemptions) v. Mool Chand Khairati Ram Trust [2011] 11 taxmann.com 42/199 Taxman 1/339 ITR 622. Uttaranchal High Court in the case of Welham Boys' School Society v. CBDT 12006] 285 ITR 74/ [2007] 158 Taxman 199 and Allahabad High Court in the case of Oxford Academy for Career Development v. Chief CIT (2009] 315 1TR 382. 29. All the three High Courts after examining the issue, in the light of the object of Section 12A of the Act and Section 21 of the General Clauses Act held that the order of the CIT passed under Section 12A is quasi-judicial in nature. Second, there was no express provision in the Act vesting the CIT with power of cancellation of registration till 01.10.2004; and lastly, Section 21of the General Clauses Act has no application to the order passed by the CIT under Section 12A because the order is quasijudicial in nature and it is for all these reasons the CIT had no jurisdiction to cancel the registration certificate once granted by him under Section 12A till the power was expressly conferred on the CIT by Section 12AA(3) of the Act w.e.f. 01.10.2004. We hold that the ratio decidendi of the aforesaid judgeme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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