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TMI Blog2019 (5) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... e [ 2018 (3) TMI 1405 - ITAT KOLKATA] ; [ 2017 (9) TMI 1637 - ITAT KOLKATA] ; [ 2017 (11) TMI 1631 - ITAT KOLKATA] . Copy of the statements was not confronted to the assessee. No evidence of the money being returned in cash is brought on record. The certificate is valid as on the date of donation. Hence, respectfully following of the judgment of Co-ordinate Bench of the Tribunal, we allow these grounds - Decided in favour of assessee. - I.T.A. No.341 And 342/Kol/2019 - - - Dated:- 26-4-2019 - Sri J. Sudhakar Reddy, Accountant Member And Sri S.S. Godara, Judicial Member For the Appellant : Shri S. M. Surana, Advocate For the Respondent : Shri Robin Choudhury, Sr. DR, Addl.CIT ORDER PER J. SUDHAKAR REDDY :- These two appeals by the assessee are directed against the separate and identical orders of the ld. Commissioner of Income Tax (Appeals), Kolkata (hereinafter the ld. CIT (A) ), passed u/s 250 of the Income Tax Act, 1961 (the Act ), dated 04.01.2019 for Assessment Year 2013-14 25.01.2019 for Assessment Year 2014-15. 2. The issues arising in these two appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of Tushar Chawda, in ITA No.2362/Kol/2017 dated 21.03.2018 has held as follows: This is an appeal by the assessee directed against the order of the Commissioner of Income Tax-(A)-9, Kolkata relating to A.Y. 2014-15. 2. In this case the assessee had paid an amount of ₹ 15,00,000/- as deduction u/s 35(1)(ii) of the I.T.Act, 1961 (Act) to School of Human Genetics and Population Health and claimed weighted deduction u/s 35 of the Act [175% of 1500000] amounting to ₹ 26,25,000/- from income under the head business. 3. The AO rejected this claim by observing as follows :- From the submissions of the assessee, it is clear that the assessee made the donation with a motive to get a huge deduction from business income only to reduce the total income for avoiding the payment of tax. Further, the .assessee has failed to substantiate the payment of donation satisfactorily. It is clear that the donation, made by the assessee, was a bogus payment and to get some benefit for which the assessee chose this particular organization and particular FY. The assessee must have got some benefit in lieu of donation pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its under the Income-tax Act. Therefore, the payment of ₹ 15,00,000/- for the purpose of availing weighted deduction of 175% u/s 35(1)(ii) of the Act made to M/s School of Human Genetics and Population Health, Kolkata is denied. It may be clarified here that explanation to section 35(l)(iii) of the Income-tax Act shall not come to the rescue of the appellant as it relates, only to approvals which have been withdrawn subsequent to the payment made to Institutions to which clause (ii) or cause (iii) applies. In the case of M/s School of Human Genetics and Population Health, Kolkata, the notifications had been deemed not to have been issued for any tax benefits under the Income-tax Act, 1961 or any other law of the time being in force. Though the appellant made a donation of only ₹ 15,,00,000/-, however, he has claimed u/s 35(1 )(i) and (ii) weighted deduction amounting to ₹ 26,25,,000/- from his return income. The disallowance is, therefore, restricted to the deduction claimed at ₹ 26,25,,000/-. 5. After hearing rival contentions, I am of the view that the assessee cannot suffer on account of withdrawal of notification given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee to HHBRF were genuine in nature and had further confirmed that HHBRF had not paid any cash back to assessee in lieu of cheque donations paid to them. The revenue had left the matter at this stage itself and did not further probe into it to check the veracity of the confirmation made by Shri Swapan Ranjan Dasgupta. Therefore, the ld AO proceeded to make the addition only based on the statement recorded from Swapan Ranjan Dasgupta at the time of survey. It may be true that in the said statement, Swapan Ranjan Dasgupta may have deposed to the fact that HHBRF were in receipt of various donations from various persons in cheques and the same were routed back to the donors in cash after retaining certain portion as their commission and intermediaries commission. This is only a general statement given by Swapan Ranjan Dasgupta about the modus operandi carried out by HHBRF. But nowhere in the said statement or in the subsequent enquires / investigation , it came to light that the assessee herein had indeed received back the cash in lieu of cheque donations given to HHBRF. This serves as a clinching missing evidence in the entire gamut of this case. 7. Respectf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17, order dt. 21/03/2018, and the Kolkata B Bench of the Tribunal in the case of DCIT vs. M/s. Maco Corporation India (P) Ltd. in ITA No. 378/Kol/2017, order dt.13/04/2018, adjudicated the issue in favour of the assessee. 2.1. The ld. D/R, on the other hand submitted that statements were recorded from key persons of the Trust and in these statements, these persons have admitted that such accommodation entries were provided for donations. He specifically referred to question no. 12 at page 7 of the assessment order, wherein, Smt. Samadrita Mukherjee Sardar, secretary of the School of Human Genetics and Population Health, had admitted to such bogus entries. He further referred to pages 11 of the assessment order and submitted that Shri Avijit Sinha Roy had specifically stated that this amount of ₹ 2 Lakhs from M/s. Zenith Credit Corporation was a bogus transaction. In his rejoinder, the ld. Counsel for the assessee submitted that, when Shri Avijit Sinha Roy has in his sworn statement stated that he has left his work of providing bogus donations far back in the year 2011 and hence, the question of his arranging these donations in the year 2014, does not arise. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no other evidence to show that the assessee has received back the donation as suggested in his general statement about providing accommodation entry by Shri Swapan Ranjan Dasgupta. We also note that the said Shri Swapan Ranjan Dasgupta has not stated anywhere that the assessee indulged in bogus donation or that the amount donated to it (M/s. Herbicure) was given back to the assessee after deducting the commission. We note that the statement recorded on oath during survey cannot be the sole basis for making the disallowance as decided by the Hon'ble Supreme Court in CIT Vs. S. Kader Khan Son (2013) 352 ITR 480 (SC). In any case, if the AO was of the opinion that the statement of Shri Swapan Ranjan Dasgupta, the founder Director of M/s. Herbicure has adversely affected the veracity of the donation made by the assessee then he was duty bound to summon Shri Swapan Ranjan Dasgupta and allowed the assessee to have cross examined him, failing which the statement of Shri Swapan Ranjan Dasgupta could not be used against the assessee trust as held by the Hon'ble Supreme Court in Andaman Timbers Ltd. Vs. Commissioner of Central Excise 62 Taxman 3. We note that the AO had in fact, reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded back to assessee firm, which fact has been reproduced by the AO at page 7 of his order as under: Shri Swapan Ranjan Dasgupta, Director of M/s Herbicure Healthcare Bio-Herbal Research Foundation had filed a letter on 28/01/2016 stating Referring to the above and your comments on my reply dated 22.01.2016, I would further request your good office to elaborate the financial years in question to enable our Accounts Deptt for verification and submission. However, we apparently observe from our records that following donations were received by us from M/s. Saimed Innovation, the assessee in the financial years mentioned against each: F.Ys Amount Mode of transaction Date Receipt No. 2012-13 7,51,000/- RTGS:UTR No. BARBH13074606758 15.03.2013 HHBHRF/15-03-13/004 2012-13 7,51,000 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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