2019 (7) TMI 1559 - AT - Income Tax

Disallowance of donation added u/s 35(1)(ii) - case of the assessee was selected for scrutiny assessment and notice under section 143(2) was issued and served upon the assessee - HELD THAT - As decided in S.G. VAT CARE P. LTD. VERSUS ITO, WARD-4 SABARKANTHA. 2019 (1) TMI 1694 - ITAT AHMEDABAD . On the basis of a general information collected from the donee, the donation made by the assessee cannot be doubted. Neither representatives of the donee have been put to cross-examination, nor any specific reply deposing that such donation was not received, or if received 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 - Decided against revenue

Summary

Issues:
Appeal against deletion of disallowance of donation under section 35(1)(ii) of the Act.

Analysis:
The Revenue appealed against the order of the ld.CIT(A)-3, Ahmedabad for the Asstt.Year 2014-15, focusing on the deletion of the disallowance of a donation amounting to ?96,25,000 under section 35(1)(ii) of the Act. The AO observed that the donation claimed by the assessee was towards Herbicure Health Care Bio-herbal Research Foundation, which was found to be involved in arranging bogus donations during a survey. The AO treated the donation as bogus and disallowed the claim. However, the ld.CIT(A) deleted the disallowance, leading to the Revenue's appeal.

The assessee's counsel argued that a similar case involving S.G. Vat Care P.Ltd. had the disallowance deleted by the Tribunal, presenting the relevant order. The Tribunal in the S.G. Vat Care P.Ltd. case found that the AO's doubts on the donation's genuineness were not substantiated with specific evidence or cross-examination of the donee's representatives. As the same survey report was the basis for doubting the donation in both cases, the Tribunal dismissed the Revenue's appeal, following the precedent set in the S.G. Vat Care P.Ltd. case.

The Tribunal emphasized the lack of specific evidence or cross-examination of the donee's representatives regarding the alleged bogus donations, leading to the dismissal of the Revenue's appeal. The genuineness of the donations was doubted solely based on general information from the survey team, without concrete proof of the donations being refunded in cash. As the circumstances did not warrant disallowance and the cancellation of the donee's certificate occurred after the donations, the Tribunal upheld the deletion of the disallowance in line with the S.G. Vat Care P.Ltd. case.

In conclusion, the Tribunal dismissed the Revenue's appeal, as the issue regarding the disallowance of the donation under section 35(1)(ii) was found to be covered in favor of the assessee based on the precedent set in the S.G. Vat Care P.Ltd. case. The lack of concrete evidence and cross-examination regarding the alleged bogus donations led to the Tribunal upholding the deletion of the disallowance by the ld.CIT(A).