TMI Blog2023 (6) TMI 108X X X X Extracts X X X X X X X X Extracts X X X X ..... e disallowance has been made on mere allegations. Therefore, respectfully following the earlier order, we delete the disallowance - Decided in favour of assessee. - ITA NO.2648/MUM/2022 - - - Dated:- 3-4-2023 - SHRI KULDIP SINGH, HON'BLE JUDICIAL MEMBER AND SHRI S. RIFAUR RAHMAN, HON'BLE ACCOUNTANT MEMBER For the Assessee : Shri. Piyush Chhajed Shri Sumit Mantri For the Department : Shri. Saurabh Kumar Rai ORDER PER S. RIFAUR RAHMAN (AM) 1. This appeal is filed by the assessee against the order of the Learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi [hereinafter in short Ld.CIT(A) ] dated 20.09.2022 for the A.Y.2009-10. 2. Brief facts of the case are, assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d returned by donations in cash, 4. During scrutiny proceedings, authorised representative of the assessee submitted a letter dated 01.07.2016 which is the copy of receipt dated 30.01.2009 issued by M/s Navjeevan Charitable Trust towards receipt of donation amounting to ₹.15,00,000/- along with the Copy of Certificate in Form No.58A of the Act certifying that a sum of ₹.15,00,000/- has been received u/s 35A(1) and a copy of the bank statements containing the details of payments to the trust. 5. After considering the above submissions, Assessing Officer rejected the same and he gave reasons for rejecting the submissions of the assessee in his order at Para No. 6. In summary, the findings of the Assessing Officer is that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rable Supreme Court in case of GKN Driveshaft s (India) Ltd, 251 ITR 19. 3. On the facts and circumstances of the case, the learned Commissioner of Income Tax (Appeal) erred in passing the order without appreciating the reopening reasons are without bringing out any tangible material on the basis of which the reason to believe that income has escaped assessment was formed. 4. On the facts and circumstances of the case, the learned Commissioner of Income Tax (A) erred in sustaining the disallowance of donation made amounting to Rs. 15,00,000/- u/s35AC of the Income Tax Act, 1961 on the basis of certain statements recorded of the Donee Trust without giving any opportunity to the assessee to cross-examine the said persons. 5. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ained the details of payment of donation to the trust. He submitted that the trust under consideration was searched and seized only on 01.04.2016. Therefore, the assessee has paid the donation in good faith and the same donation cannot be treated as bogus. In this regard he relied on the following case laws: - a. The ITAT Ahmedabad Bench 'C' in Bhimani Chemicals Pvt. Ltd. ITA No. 1246/AHD/2018 b. The ITAT Ahmedabad Bench 'SMC' in P M Bhimani Orgochem Pvt. Ltd. ITA No. 2586, 2587, 2588/AHD/2017 c. The ITAT Mumbai Bench 'D' in Shri Mrunal H. Shah I.T.A No.4878/Mum/2016 d. The ITAT Mumbai Bench 'D' in Shri Devajyoti N. Bhattacharya ITA No. 5874, 5875, 5876/MUM/2018 e. The ITAT Mumbai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... volved in the activities of providing accommodation entries by way of donation. The donation received in cheque were stated to be returned in cash after deducting commission of 3%. Relying upon the admission made by the Trustees during search, Ld. AO proceeded to disallow the deduction so claimed by the assessee. The assessee defended the claim by submitting that the donations were paid through cheque against valid receipt. However, not convinced, Ld. AO denied the deduction to the assessee. 5. During appellate proceedings the assessee submitted that the trustee had not named the assessee as recipient of cash and there was no substantiated statement that the appellant received the cash back from the trust. However, in the light of sea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asted upon him and it was incumbent upon Ld. AO to refute the same. However, no such inquiry has been conducted and the deduction has been denied more on mere allegations. Therefore, the deduction could not be denied to the assessee as held by this very bench in the case of Devajyoti N. Bhattacharya V/s ACIT (ITA No. 5051/Mum/2018 order dated 12/03/2020). Our observations therein were as follows: - 4. Upon due consideration, we find that the assessee was denied aforesaid deduction, in more or less similar factual matrix, in AYs 2009-10, 2012-13 2014-15 which was agitated before this Tribunal vide common order dated 30/09/2019. The coordinate bench, vide para-7, held that that the assessee had adduced evidence to establish that pay ..... X X X X Extracts X X X X X X X X Extracts X X X X
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