TMI Blog2022 (12) TMI 438X X X X Extracts X X X X X X X X Extracts X X X X ..... ee s own case we are inclined to allow the appeal filed by the assessee. - ITA NO. 757/MUM/2022 - - - Dated:- 29-11-2022 - Shri Amit Shukla, Hon'ble Judicial Member And Shri S. Rifaur Rahman, Hon'ble Accountant Member For the Assessee : Shri Suchek Anchalia For the Department : Shri Chetan M. Kacha ORDER PER S. RIFAUR RAHMAN (AM) 1. This appeal is filed by the assessee against order of the Learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi [hereinafter in short Ld.CIT(A) ] dated 21.05.2021 for the A.Y.2013-14. 2. Brief facts of the case are, assessee is engaged in the business of trading in chemical in the name and style of M/s. Sahara Impex. Assessee filed E- return of income on 30.9.2013 declaring an income of ₹ 1,24,510/. Subsequently, the case was selected for scrutiny and notice u/s. 143(2) and 142(1) of Income-tax Act, 1961 (in short Act ) were issued and served on the assessee. In response AR of the assessee attended and submitted the information as called for. 3. During the course of assessment proceedings, the Information has been received from the DDIT (Inv), Mumbai, that M/s School of H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g Officer is not convinced to the submission of the assesse and proceeds to disallow assessee's claim of deduction u/s.35(1)(ii) of ₹ 61,25,000/-. 7. Aggrieved assessee preferred an appeal before the Ld.CIT(A) and filed detailed submissions relying on various decisions. After considering the submissions of the assessee Ld.CIT(A) distinguished the cases relied by the assessee and dismissed the appeal filed by the assessee with the following observations: - 7. Therefore, on the basis of facts and circumstances of the case and the case laws referred to above, I come to the conclusion that on the basis of documentary evidences, circumstantial evidences, human conduct and preponderance of probabilities what appears to be apparent in this case is actually not real. I affirm the conclusion reached by the Assessing Officer in this regard that the financial transactions are actually sham and the entire edifice is only a colorable device meant to be a smoke screen to defraud the revenue and evade taxes. The donation u/s 35(1)(ii) of the Act to School of Human Genetics Population Health , who was engaged in providing accommodation entry through a designed, preplanned, arr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal are exactly similar to the facts in the other Assessment Years in which the Coordinate Bench has allowed the claim of the assessee in A.Y. 2011-12 and 2012-13. Since the issue involved in this appeal is also exactly similar to those Assessment Years. Therefore, we are inclined to follow the decision of the Coordinate Bench in which the issue is decided as under:- 4. I have heard learned DR and perused the record. I noticed that identical disallowance made in the hands of the assessee in A.Y.2012-13 has since been deleted by the Division Bench of the Tribunal, vide its order referred supra. For the sake of convenience I extract below decision referred by the Division Bench in A.Y. 2012-13 :- 5. We heard the rival submissions and perused the material on record. The sole crux of the disputed issue envisaged by the Ld. AR that the donation is genuine and duly supported with the facts and the material information to substantiate the eligibility of claim of deduction u/s 35(1)(iii) of the Act. The Ld.AR submissions are realistic and duly supported by the evidences. We find the Hon ble Tribunal in the case of M/sSopariwala Exports Pvt Ltd vs. DCIT in ITA No.2039/Mum/2018 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 018, order dated 27.07.2018, the Kolkata Bench of the Tribunal under similar circumstances and facts has held as under:- 13. we have given a careful consideration to the rival submissions and perused the materials available on record, we note that the assesses has challenged disallowance of weighted deduction of Rs. 4,81,25,000/- for A.Y. 2013-14 and disallowance of weighted deduction of Rs.10,50,00,000/-, for A.Y. 2014-15, claimed by him under section 35(l)(ii) of the Act in respect of the amounts of donations made to two Institutions viz. 'Matrivani Institute Experimental Research Education' (hereinafter referred to as 'Matrivani') and 'The School of Human Genetics and Population Health' (hereinafter referred to as 'SHG'). The Assessee Firm in A.Y. 2014-15, made donation of Rs,2,00,00,000/ to Matrivani and Rs,4,00,00,000/ to SHG and claimed weighted deduction Assessing Officer. We note that not providing the opportunity of cross examination is against the principle of natural justice and for that we rely of-the judgment of Hon'ble Delhi High Court in the case of CIT vs. Dharam Pal Prern Chand Ltd. [2007] 295 ITR 105, 108 (del). We note ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enetics and Population Health', therefore these institutions are not entitled to claim benefit under section 35 (1) (ii) of the Act. We note that the withdrawal of recognition u/s 35(l)(ii) of the Act in the hands of the payee organizations would not affect the rights and interests of the assesses herein for claim of weighted deduction u/s 35(1 )(ii) of the Act, for that we rely on the judgment of the Coordinate Bench, Kolkata, in the case of M/s Maco Corporation India (P) Ltd, ITA No.16/Kol/2017, for Assessment Year 2013-14, wherein it was held as follows: 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 fill 01.10.2004; and lastly. Section 21 of the General Clauses Act has no application to the order passed by the CIT under Section 12A because the order is quasi judicial in nature and it is for all these reasons the CIT had no jurisdiction to cancel the registration cert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Act cannot be denied to the assessee. Accordingly, we direct the AO to grant deduction u/s.35(1 )(ii) of the Act. Appeal of the assessee for the assessment year 2013-2014 (ITA No.6672/Mum/2017) is hereby allowed. 12. We note that facts in the present case are identical. The withdrawal of the approval to the payee has taken place subsequent to the payment by the assessee. The assessee s case duly follows under section 35(1)(ii) of the Act which read as under :- Section 35(1)(ii) : an amount equal to one and one half times of any sum paid to a research association which has as its object the undertaking of scientific research or to a university, college or other institution to be used for scientific research : Provided that such association, university, college or other institution for the purposes of this clause- (A) is for the time being approved, in accordance with the guidelines, in the manner and subject to such conditions as may be prescribed; and (B) such association, university, college or other institution is specified as such, by notification in the Official Gazette, by the Central Government : Provided further that where any sum is paid to s ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
