TMI Blog2022 (7) TMI 1357X X X X Extracts X X X X X X X X Extracts X X X X ..... hs claimed under section 35(1)(ii) of the I.T. Act in respect of donation given by the assessee. 3. The Learned AR appearing for the assessee submitted that the assessee had given donation of Rs. 10 lakhs to M/s. Herbicure Health Care Bio Herbal Research Foundation (HHBRF). The above said institution was eligible under section 35 of the Act and accordingly the assessee claimed weighted deduction of Rs.17.50 lakhs under section 35(1)(ii) of the Act against the donation of Rs.10.00 lakhs paid by it. The Assessing Officer disallowed claim on the basis of certain information shared by the Investigation wing and the said disallowance was confirmed by learned CIT(A). The Learned AR submitted that the assessee had given donation to the above said institution in the year relevant to assessment year 2012-13 also and in that year also, deduction claimed under section 35(1)(ii) of the Act was disallowed. The Learned AR submitted that the above said disallowance has since been deleted by the Division Bench of the Tribunal, vide its order dated 23.3.2022 passed in ITA No. 720/Mum/2021. The Learned AR also furnished a copy of the order passed by the Division Bench of the Tribunal. 4. I hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s, brokers and accommodation entry providers has indulged in a duvious scheme of tax evasion, under which bogus donations were received from donors and money used to be returned back to the donors in lieu of commission, even while the donor availed of deductions u/s.35(1)(ii) of the Act. The registration of the institution was cancelled by the Government of India with retrospective effect and it was held that the institution has misused the exemption. However, under similar facts and circumstances, various coordinate benches have taken the view that mere admission on the part of the office bearers of the body/trust, the assessee cannot be penalized and the amount of donations claimed by the assessee on account of payment to the said school cannot be denied. In the case of Narbheram Vishram Qua, ITA No.42 43/Kol/2018, 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 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee, then he should have granted an opportunity to cross examine Shri Swapan Ranjan Das Gupta and Shri Kishan Bhawasingka as held by Hon'ble Supreme Court in Andaman Timber (supra). 11. In the light of the aforesaid facts and circumstances, we cannot sustain the order of the authorities below. Therefore, we set aside the impugned order and direct the AO to allow the deduction of Rs.26,28,500/- u/s. 35(l)(ii) of the Act. 15. Now, we deal with the arguments of Id DR for the Revenue. We note that the solitary grievance of the Id DR for the Revenue is that since the registration had been cancelled by the CBDT, with retrospective effect that is, with effect from 1sl April 2007, by issuing notification dated 06.09.2016, for both the institutions viz: 'Matrivani' and 'The School of Human Genetics 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Genetics and Population Health'. Accordingly, the Grounds 1 to 4 raised by the assessee for A.Y. 2013-14 and the Grounds 1 to 5 raised by the assessee for A. Y. 2014-15 are allowed. 9. Similarly in various other decisions the issue has been decided by the Tribunal in favour of the assessee by disregarding the revenue's contentions that the registration of the school has been cancelled by the CBDT with retrospective effect by issuing Notification and, therefore, the assessee is not entitled to benefit u/s.35(1)(ii) of the Act. The facts before us being materially same involving the same school, namely, The School of Human Genetics and Population Health , we, therefore, respectfully following the decisions of the coordinate benches of the Tribunal, hold that the deduction u/s.35(1)(ii) of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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