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TMI Blog2017 (7) TMI 1047X X X X Extracts X X X X X X X X Extracts X X X X ..... h the donation received was also sent by the trust. Based on the sworn statement of the Founder Director Shri Swapan Ranjan Das Gupta of M/s. Herbicure, wherein, he has admitted that his organization accept the donation and giving back of the same to the donor after deducting a commission @ 5% on the donation amount. However, the Department has not made any effect to get any valid evidence that the organization has given back the donation to the donor after deducting a commission @ 5% on the donation amount. Under the above facts and circumstances, the Assessing Officer is directed to ascertain the means as well as actual amount repaid by the donee to the assessee and decide the issue afresh after giving sufficient opportunities of hearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ld. CIT(A) erred in confirming the disallowance made under section 35(1)(ii) of the Income Tax Act, 1961 [ Act in short] and (ii) the ld. CIT(A) erred in confirming disallowance made under section 14A of the Act. 2. Brief facts of the case are that the assessee is carrying on transport business in the name of M/s. DDP Transports and derives income from business. She has filed her return of Income on 29.09.2012 admitting total income of ₹.14,80,220/-. The case of the assessee was selected for scrutiny. Notice under Section 143(2) dated 06.08.2013 was issued and duly served on the assessee. During the year under consideration, an amount of ₹.15,00,000/- on which weighted deduction of ₹.26,25,000/- under section 35(1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly to the done by cheque and not received back any cash or cheques from the donee. With regard to the approach of Shri Kishan Bhawasingka to adopt the prevalent practice of scientific and research organisations of giving accommodation entries on commission to different beneficiaries in the garb of donation, the assessee has strongly contended that the donation was given directly to the donor through cheque and the assessee was not one of the beneficiary as mentioned in that sworn statement. However, the Assessing Officer has not accepted the submissions of the assessee, the donation made and exemption claimed of ₹.26,25,000/- under section 35(1)(ii) of the Act was disallowed and brought to tax. 3. The assessee carried the matter in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th sides, perused the materials available on record and gone through the orders of authorities below. First we shall adjudicate the issue as to whether withdrawal of approval under section 35(1)(ii) of income tax act apply retrospectively for exemption claimed by the assessee. Vide Notification No. 35/2008 dated 14.03.2008, the organization Herbicure Healthcare Bio-Herbal Research Foundation, Kolkata has been approved by the Central Government for the purpose of clause (ii) of sub-section (1) of section 35 of the Act with effect from 01.04.2007. In view of the above notification, donation offered to the above institution is exempted to claim deduction under section 35(1)(ii) of the Act. Thus, the assessee paid donation of ₹.15.00 lakh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k statement in which the donation received was also sent by the trust. Based on the sworn statement of the Founder Director Shri Swapan Ranjan Das Gupta of M/s. Herbicure, wherein, he has admitted that his organization accept the donation and giving back of the same to the donor after deducting a commission @ 5% on the donation amount. However, the Department has not made any effect to get any valid evidence that the organization has given back the donation to the donor after deducting a commission @ 5% on the donation amount. Under the above facts and circumstances, the Assessing Officer is directed to ascertain the means as well as actual amount repaid by the donee to the assessee and decide the issue afresh after giving sufficient opport ..... X X X X Extracts X X X X X X X X Extracts X X X X
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