2023 (12) TMI 1161 - AT - Income Tax

Revision u/s 263 - Incorrect claim of weighted deduction u/s 35(1)(ii) allowed by AO on donation made - assessee had pointed out that this claim was duly examined during assessment proceedings when the assessee had placed relevant documents proving its eligibility to the claim of and even the genuineness of the claim by furnishing documents pointing out that the donation had been made through banking channels and the donee Institute had furnished receipts and certificates issued by CBDT showing that it was approved for receiving donations u/s. 35(1)(ii) - HELD THAT - A very important fact which emerges is that the Institute, to which donation was made by the assessee during the impugned year and weighted deduction claimed thereon u/s. 35(1)(ii) of the Act, was not approved for the said purposes for the impugned year. The fact on record available with the Ld.CIT is that the approval granted to the said Institute expired on 31/03/2006. Impugned year before us is A.Y 2015-16. The Advisory issued by the CBDT in December-2018 brought this fact to the notice of all its Field Officers. Therefore, the fact on record was that the said Institute was not approved for receiving donations u/s. 35(1)(ii) of the Act during the impugned year. Thus there can be no two views that when the assessment order was passed by the AO, assessees claim to weighted deduction u/s 35(1)(vii) of the Act was impermissible in law. And it is a foregone conclusion therefore that the allowance of the said claim in assessment framed was patently incorrect. The assessment order was obviously in error in having allowed a patently ineligible deduction to the assessee. This is probably the simplest and most straight forward example /instance of an assessment order being erroneous causing prejudice to the Revenue, for a valid exercise of revisionary jurisdiction. All arguments of assessee against the revisionary order passed by the Ld.CIT fail and are of no consequence in the backdrop of the fact, as noted above by us, that the assessee was not eligible to claim weighted deduction on the said donation u/s 35(1)(ii) of the Act. Even if the assessee and the AO had bonafidely claimed and allowed respectively the deduction based on documents furnished by the said Institute, the fact still remains that the claim was not allowable as per law. What is material for claiming deduction is its eligibility as per law and not the intention with which it is claimed, whether bonafidely or malafidely. Even a bonafidely claimed deduction if found ineligible in law, it cannot be allowed to the assessee. Also on a patently ineligible claim there can be no question of the AO taking a plausible view in allowing assesses claim. As approval was not inexistence after 31/03/2006 and the said Trust was subsequently receiving donations fraudulently. The subsequently issued advisory of the CBDT only reiterates the fact of donations to the said institute being ineligible for deduction to donors u/s. 35(1)(ii) of the Act. In view of the above, we have no hesitation in upholding the order of the Ld.CIT holding the assessment order erroneous for having allowed a patently ineligible claim of weighted deduction to the assessee. Decided against assessee.

Summary

Issues Involved:
1. Whether the order passed by the Commissioner of Income Tax (CIT) under section 263 of the Income Tax Act was erroneous and prejudicial to the interest of the revenue.
2. Whether the assessee was eligible to claim the weighted deduction under section 35(1)(ii) of the Income Tax Act for donations made to a Scientific Research Institute.

Summary:

Issue 1: Erroneous and Prejudicial Order by CIT
The assessee contended that the CIT's order under section 263 of the Income Tax Act was erroneous on facts and contrary to the provisions of the law. The CIT had held that the order passed by the Assessing Officer (AO) under section 143(3) was erroneous and prejudicial to the interest of the revenue. The CIT directed a fresh assessment considering the issue of weighted deduction under section 35(1)(ii). The CIT invoked Explanation 2 to sub-section (1) of section 263, stating that the assessment order was passed without proper enquiry and verification of facts, despite the assessee submitting that necessary inquiries were made during regular proceedings.

Issue 2: Eligibility for Weighted Deduction under Section 35(1)(ii)
The CIT noted that the approval granted to the Scientific Research Institute, M/s. Shri Arvindo Institute of Applied Scientific Research Trust, for receiving donations under section 35(1)(ii) had expired long before the impugned year. The assessee had claimed a weighted deduction of 175% on donations amounting to Rs. 70 lakhs. The CIT found that the AO had not made necessary inquiries before allowing this ineligible claim, rendering the assessment order erroneous and prejudicial to the revenue.

Arguments by Assessee:
The assessee argued that the AO had examined the issue during assessment and allowed the claim based on documents showing the Institute's approval for receiving donations under section 35(1)(ii). The assessee relied on documents provided by the Institute and contended that there was no reason to doubt the claim. The assessee also cited decisions from the ITAT Mumbai Bench and ITAT Rajkot Bench, arguing that the AO had taken a plausible view and conducted due inquiries.

Arguments by Revenue:
The Revenue contended that the Institute's approval had expired on 31/03/2006, and the Institute was fraudulently accepting donations based on forged documents. The CBDT had issued an advisory in December 2018, informing field officers about the fraudulent activities of the Institute. The Revenue argued that the allowance of the claim was an error, causing prejudice to the revenue.

Tribunal's Findings:
The Tribunal found that the Institute was not approved for receiving donations under section 35(1)(ii) during the impugned year. The allowance of the claim was patently incorrect, rendering the assessment order erroneous and prejudicial to the revenue. The Tribunal held that even if the assessee and the AO had bonafidely claimed and allowed the deduction based on documents, the claim was not allowable as per law. The Tribunal upheld the CIT's order, dismissing the assessee's appeal.

Conclusion:
The Tribunal concluded that the assessment order was erroneous and prejudicial to the revenue as it allowed a patently ineligible claim of weighted deduction under section 35(1)(ii). The appeal of the assessee was dismissed.