TMI Blog2022 (5) TMI 1145X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 102/Kol/2021 - - - Dated:- 10-5-2022 - SHRI MANISH BORAD , HON BLE ACCOUNTANT MEMBER And SHRI SONJOY SARMA , HON BLE JUDICIAL MEMBER Shri Anil Kochar , Advocate Shri Aryan Kochar , Advocate appearing on behalf of the Assessee Shri B. S. Anand , JCIT , Sr. DR appearing on behalf of the Revenue ORDER PER SONJOY SARMA , JM : This is an appeal filed by the assessee pertaining to the assessment year (in short A.Y. ) 2014-15 is directed against the order of Ld. CIT(A)-4, Kolkata dated 22.05.2019 which is arising out of the assessment order passed u/s 147/143(3) of the Income Tax Act, 1961(in short the Act ) dated 18.01.2016 passed by the DCIT, Circle-10(1), Kolkata. 2. The registry has informed that the present appeal is time barred by 601 days. The ld. counsel for the assessee prayed for condonation of the delay by submitting the affidavit placed on record. We after perusing the affidavit as well as material available on record found that merit in the contention of the affidavit given by the assessee and keeping the larger interest of justice, we condone the delay and admit the appeal for adjudication. 3. The assessee is in appeal before the Tri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the donations were returned back to the donors in different forms like direct cash, in the name of various shell companies to get back such cash through them in lieu of commission. One of the institutes, the School of Human Genetics and Population Health have gone to settlement commission admitting that in lieu of service charge they have provided accommodation entries of bogus donation to the donors and has accepted that they have refunded the amounts after deduction service charges in lieu of commission. The AO find that the assessee company is one of the donors as per list provided of office of the Principal Director of Income Tax (Inv.), Kolkata and it is seen that the assessee claimed deduction u/s 35(1)(ii) of Rs. 7,87,500/- @ 175% for the payment of donation of Rs. 4,50,000/- to School of Human Genetics Population Health (SHGPH). The case was reopened by issuing notice u/s 148 vide letter dated 17.12.2015 after recording the reason for reopening. 5. In response to the notice u/s 148 vide letter dated 07.01.2016 requested the AO to treat the original return filed by the assessee on 27.09.2014. Again a letter was issued on 25.01.2016 to the assessee along with the reasons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ata (ITA No. 2668/Kol/2018 dated 21.02.2020). v. Raj Karan Dassani vs ITO, Ward-36(1), Kolkata (ITA No. 2346/Kol/2018 dated 08.05.2019). 8. We have heard rival submission and perused the material available on record on the identical facts, the Kolkata bench of the Tribunal in the case of DCIT, Circle- 12(1), Kolkata vs M/s. Maco Corporation (India) Pvt. Ltd. (ITA No. 16/Kol/2017) had held that withdrawal of recognition u/s 35(1)(ii) of the Act in the hands of payee organisation would not affect the right and interest of the assessee for claim of deduction u/s 35(1)(ii) of the Act. The relevant finding of the ITAT in the case of M/s. Maco Corporation (India) Pvt. Ltd. (supra) reads as follows: 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 repo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in dispute that an express power was conferred on the CIT to cancel the registration for the first time by enacting sub-Section (3) in Section 12AA only with effect from 01.10.2004 by the Finance (No.2) Act 2004 (23 of 2004) and hence such power could be exercised by the CIT only on and after 01.10.2004, i.e., (assessment year 2004-2005) because the amendment in question was not retrospective but was prospective in nature. 28. The issue involved in this appeal had also come up for consideration before three High Courts, 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 [2006] 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 ITR 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 vesti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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