2019 (9) TMI 976 - AT - Income Tax

Assessment proceedings initiated u/s. 153C r.w.s. 143(3) - HELD THAT - Revenue s case accordingly is that the CIT(A) has erred in holding that the impugned assessment(s) are also invalid on account of no satisfaction having been recorded at the AO s behest. We find these Revenue s arguments to be not sustainable since the AO's above extracted satisfaction note has nowhere indicated that the relevant category of assets or books of account etc. belongs to the assessee / a third person than that subjected to the search in issue. We make it clear that the legislature has included relates to by in sec. 153C way of an amendment by the Finance Act, 2015 with effect from 01.06.2015 whereas the satisfaction in issue was recorded much earlier than that on 16.03.2015. We hold that the CIT(A) s findings under challenge to this effect deserve to be upheld. We order accordingly. Disallowance of sec. 35(1)(ii) deduction on account of its contribution made to the School of Human Genatics and Population Health - HELD THAT - The general statement of Shri Swapan Ranjan Dasgupta against donation made the claim of assessee for deduction suspicious. However, when the AO investigated, Shri Swapan Ranjan Dasgupta has confirmed that M/s. Herbicure was in receipt of the donation and it has not given any refund in cash, then the sole basis of disallowance of claim as a matter of fact disappeared. It should be remembered suspicion howsoever strong cannot take the place of evidence. The confirmation from Shri Swapan Ranjan Dasgupta fortifies the claim of the assessee for weighted deduction u/s. 35(1)(ii). The sole basis of the addition/disallowance based on statement recorded on oath during survey cannot be allowed as held by Hon'ble Supreme Court in Kader Khan sons 2013 (6) TMI 305 - SC ORDER . Moreover, we note that if the AO was hell bent determined to disallow the claim of the assessee, 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.

Summary

Issues Involved:
1. Tax effect threshold limit.
2. Legality of assessment proceedings initiated under section 153C read with section 143(3) of the Income Tax Act.
3. Disallowance of section 35(1)(ii) deduction on account of contributions made to the "School of Human Genetics and Population Health".

Detailed Analysis:

1. Tax Effect Threshold Limit:
The Revenue's appeals IT(SS)A No.25/Kol/2017 and ITA No.1314/Kol/2017 for assessment years 2010-11 and 2012-13 were dismissed due to the tax effect being less than ?50 lakhs, as prescribed by CBDT's Circular No. 17/2019 dated 08.08.2019. The tribunal noted that the circular applies retrospectively to pending appeals, and the Hon'ble apex court in Commissioner of Customs vs Indian Oil Corporation Ltd (267 ITR 272) has established that CBDT's circulars are binding on revenue authorities. Consequently, the Revenue's appeals were declined, and the assessee's cross objections CO Nos. 80 & 82/Kol/2017 were dismissed as not pressed.

2. Legality of Assessment Proceedings Initiated Under Section 153C Read with Section 143(3) of the Income Tax Act:
The CIT(A) had decided in favor of the assessee, stating that additions made by the AO in the assessment order passed u/s 153A/143(3) were not based on any incriminating documents/papers seized during the search operation. The tribunal upheld this decision, citing multiple precedents where it was held that additions in search assessments must be based on incriminating material found during the search. The tribunal referenced several cases, including:
- PCIT-2, Kolkata Vs. Salasar Stock Broking Limited (ITAT No. 264 of 2016)
- CIT, Kolkata-III Vs. Veerprabhu Marketing Ltd. [2016] 73 taxmann.com 149 (Calcutta)
- CIT vs. Kabul Chawla (2016) 380 ITR 0573 (Del)

The tribunal noted that no incriminating material was found or seized during the search dated 21/22.11.2013, and thus, the CIT(A) rightly quashed the impugned assessment. The tribunal also upheld the CIT(A)'s findings that the satisfaction note dated 16.03.2015 did not indicate that the relevant assets or books of account "belonged to" the assessee, as required by law before the amendment by the Finance Act, 2015. Hence, the Revenue's appeals IT(SS)A No.24/Kol/2017 and ITA No.1313/Kol/2017 for assessment years 2009-10 and 2011-12 were dismissed, and the assessee's cross objections CO No.79 & 81/Kol/2017 were dismissed as not pressed.

3. Disallowance of Section 35(1)(ii) Deduction on Account of Contributions Made to the "School of Human Genetics and Population Health":
The lower authorities had disallowed the deduction, holding that the recipient organization was engaged in providing accommodation entries rather than carrying out scientific research and development. However, the tribunal found no substance in the Revenue's plea, referencing the tribunal's co-ordinate bench decision in ITA Nos. 341-342/Kol/2019 M/s Shyam Sunder Co. Jewellers vs. ACIT, Circle-2(2), Kolkata, which deleted the disallowance for the same recipient organization in assessment years 2013-14 and 2014-15. The tribunal noted that the donation was made while the approval was valid, and the withdrawal of the notification in 2016 could not affect the vested right of the assessee for claiming the deduction. Consequently, the tribunal allowed the assessee's appeal IT(SS)A No.07/Kol/2017 on merits.

Conclusion:
- Revenue's appeals IT(SS)A No.24-25/Kol/2017 & ITA No.1313-1314/Kol/2017 were dismissed.
- Assessee's cross objections CO Nos.79-82/Kol/2017 were dismissed as not pressed.
- Assessee's appeal IT(SS)A No.07/Kol/2017 was allowed on merits.