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TMI Blog2021 (9) TMI 220X X X X Extracts X X X X X X X X Extracts X X X X ..... laim of Rs. 87,50,000 under Section 35(l)(ii) on the basis of information received from DDIT (Investigation) Kolkata in as much as the entire conclusion is on presumption, conjuncture and surmises and there are no evidences that that the assessee has received back any cash. 1.1 The appellant says and submits that the AO has relied upon the information received from DDIT (Investigation) Kolkata without making any inquiry by AO himself. 1.2 The learned CIT(A) has erred in relying on the cancellation of certificate granted by CBDT with retrospective effect in as much as the assessee had given a donation during the relevant period and that the certificate granted under Section 35(l)(ii) was valid at the time of donation. 2. Brief facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n not were bogus. But Ld. A.O. did not agree with the contention of the assessee and made disallowance of deduction u/s. 35(1)(ii) of Rs. 87,50,000/-. 7. Against the order of the Assessing Officer, assessee preferred first statutory appeal before the Ld. CIT(A) who dismissed the appeal of the assessee on the ground that it has been categorically proved during the course of survey in the case of HHBRF that HHBRF was only providing accommodation entry for various donors and returned back cash to those donors after deducting certain commission. And also held that appellant has not proved the basis on which it identified HHBRF as a genuine research organization. 8. Now appellant has come before us by way of second statutory appeal for redress ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law of the time being in force. [Notification No. 79/2016/F. No. 203/135/2007/ITA.II] 12. It is evident that on the date of the donation, CBDT Circular was effective in such case. 13. The appellant has also relied an order of the ITAT Bench wherein donations were given to the HHBRF held to be genuine by the Co-ordinate Bench with following observations: 3. On scrutiny of the accounts, it revealed to the AO that the assessee has claimed deduction under section 35(1)(ii) at Rs. 96,25,000/- on the ground that it has incurred this expenditure towards donation. He observed that donations were given to Herbicure Health Care Bio-herbal Research Foundation ("Herbicure" for short). According to the AO a survey under section 133A was conducte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ealthcare Bio-Herbal Research Foundation. 3. Brief facts of the case are that the assessee has filed return of income on 20.11.2014 declaring total income at Rs. 4,47,910/-. On scrutiny of the accounts, it revealed that the assessee-company has given donation to Herbicure Healthcare Bio- Herbal Research Foundation, Calcutta. A survey action was carried out at the premises of the donee wherein it revealed to the Revenue that this concern was misusing the benefit of notification issued by the Income Tax Department. It has been getting donations from various sources, and after deducting certain amount of commission, these donations were refunded in cash. On the basis of that survey report registration granted to its favour was cancelled. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eived the same was repaid in cash, has been brought on record. In the absence of such circumstances, donation given by the assessee to the donee, on which the assessee no mechanism to check the veracity, can be doubted, more particularly, when certificate to obtain donation has been cancelled after two years of the payment of donation. It is fact which has been unearthed subsequent to the donations. Therefore, there cannot be any disallowance on this issue. We allow this ground." 6. There is no disparity on the facts. On the basis same survey report, the genuineness of the donation has been doubted in the case of the assessee also. Therefore, the issue in dispute is squarely covered in favour of the assessee. Respectfully following the o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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