2018 (4) TMI 871 - AT - Income Tax

Disallowance made u/s 35(1)(ii) - weighted deduction - scientific research organization donation made - eligibility criteria - Held that - As decided in assess s own case 2018 (3) TMI 811 - ITAT KOLKATA 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. There is absolutely no provision for withdrawal of recognition u/s 35(1)(ii) of the Act. Hence we hold that the withdrawal of recognition u/s 35(1)(ii) of the Act in the hands of the payee organizations would not affect the rights and interests of the assessee herein for claim of weighted deduction u/s 35(1)(ii) of the Act. - Decided in favour of assessee.

Issues Involved:
1. Deletion of disallowance made under Section 35(1)(ii) of the Income Tax Act, 1961.
2. Consideration of only dividend-bearing investments for computing disallowance under Section 14A read with Rule 8D(2)(iii).
3. Applicability of disallowance under Section 14A while computing book profits under Section 115JB.

Issue-wise Detailed Analysis:

1. Deletion of Disallowance under Section 35(1)(ii):
The primary issue was whether the Commissioner of Income Tax (Appeals) [CIT(A)] was justified in deleting the disallowance of ?4,37,50,000 made under Section 35(1)(ii) of the Income Tax Act, 1961. The assessee, a private limited company, claimed a donation of ?2,50,00,000 to Herbicure Healthcare Bio-Herbal Research Foundation (HHBHRF), seeking a weighted deduction of 175%. The Assessing Officer (AO) disallowed the claim based on a survey conducted on HHBHRF, which revealed that the organization was engaged in collecting bogus donations. The AO issued a show cause notice citing various irregularities and statements from key persons confirming the bogus nature of the donations.

The assessee countered by asserting the genuineness of the donations, providing registration and exemption certificates, and requesting cross-examination of adverse witnesses. The CIT(A) deleted the disallowance, referencing a previous favorable decision for the assessee for AY 2013-14, emphasizing the principle of consistency.

Upon appeal, the Tribunal upheld the CIT(A)'s decision, noting that the issue was covered by the Tribunal's previous order for AY 2013-14. The Tribunal highlighted that the Taxation Laws (Amendment) Act, 2006, with retrospective effect from 1.4.2006, introduced an explanation in Section 35, ensuring that deductions could not be denied merely due to subsequent withdrawal of approval to the research organization. The Tribunal also referenced the Supreme Court's decision in Industrial Infrastructure Development Corporation (Gwalior) M.P. Ltd vs. CIT, which held that quasi-judicial orders like registration under Section 12A could not be retrospectively canceled without express legislative provision.

2. Consideration of Only Dividend-Bearing Investments for Disallowance under Section 14A:
The next issue was whether the CIT(A) was correct in directing the AO to consider only dividend-bearing investments for computing disallowance under Section 14A read with Rule 8D(2)(iii). The Tribunal affirmed the CIT(A)'s decision, relying on the precedent set in REI Agro Ltd, which held that only dividend-bearing investments should be considered for such disallowance.

3. Applicability of Disallowance under Section 14A in Computing Book Profits under Section 115JB:
The final issue was whether disallowance under Section 14A read with Rule 8D could be made while computing book profits under Section 115JB. The Tribunal referred to the Special Bench decision in ACIT vs. Vireet Investment Pvt. Ltd. and the Kolkata High Court's decision in CIT vs. Jayshree Tea Industries Ltd., which held that Section 14A disallowance could not be added while computing book profits under Section 115JB. The Tribunal set aside the CIT(A)'s order on this issue and directed the AO to compute the expenditure relatable to exempt income independently under clause (f) of Explanation (1) to Section 115JB without resorting to Section 14A or Rule 8D.

Conclusion:
The appeal was partly allowed for statistical purposes, with the Tribunal upholding the CIT(A)'s deletion of disallowance under Section 35(1)(ii) and the consideration of only dividend-bearing investments under Section 14A, while remanding the issue of disallowance under Section 14A in computing book profits under Section 115JB back to the AO for fresh computation.

← Previous Next →