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TMI Blog2021 (12) TMI 987X X X X Extracts X X X X X X X X Extracts X X X X ..... in favour of assessee. - ITA Nos. 2586, 2587 & 2588/Ahd/2017 - - - Dated:- 10-12-2021 - Waseem Ahmed , Member ( A ) And Suchitra Kamble , Member ( J ) For the Appellant : S. N. Divatia , Advocate For the Respondents : R. R. Makwana , Sr. D. R. ORDER Per Bench These 3 appeals are filed by the same assessee against 3 separate orders, all dated 12.10.2017, passed by the CIT(A)-9, Ahmedabad for the Assessment Years 2010-11, 2011-12 2012-13. 2. All these 3 appeals are identical and, therefore, we are taking up the facts of Assessment Year 2010-11. 3. The grounds of appeal raised by the assessee in ITA No. 2586/Ahd/2017 for Assessment Year 2010-11 are as under: 1.1 The order passed u/s. 250 on 12.10.2017 for A.Y. 2010-11 by CIT(A)-9, Abad upholding the disallowance deduction u/s. 35AC of ₹ 15 lakh made by AO is wholly illegal, unlawful and against the principles of natural justice. 1.2 The Ld. CIT{A) has grievously erred in law and or on facts in not considering fully and properly the submissions made and evidence produced by the appellant with regard to the impugned disallowance. 2.1 The Ld. CIT(A) has grievously erred in law and o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s). The Assessing Officer further observed that a list of donors who have donated to Navjeevan Charitable Trusty in 6 financial years includes the name of the assessee. The year-wise details of donations made by the assessee to Navjeevan Charitable Trust are as under:- F.Y. Amount of donation 2009-10 ₹ 15,00,000/- 2010-11 ₹ 10,00,000/- 2011-12 ₹ 5,00,000/- 5. During the course of assessment proceedings, a statement under Section 131 of the Act of Shri Jignesh Jayeshbhai Bhimani, one of the Directors of P M Bhimani Orgochem Pvt. Ltd. was recorded on 03.08.2016. The Assessing Officer made addition of ₹ 15 Lakhs thereby observed that the assessee failed to discharge its onus to produce Shri Subhash Rajaram Kadam or any other Trustee and thus the donation made by the assessee company are mere accommodation entry which do not qualify deduction eligible under Section 35AC of the Act. 6. Being aggrieved by the Assessment Order, assessee filed appeal before the CIT(A). The CIT(A) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne through the record carefully. In the case of S.G. Vat care P. Ltd.(supra), the tribunal has recorded the following finding: 2. In the first ground of appeal, the grievance of the assessee is that the ld. CIT(A) has erred in confirming addition of ₹ 8,75,000/- on account of alleged bogus donation to Herbicure Healthcare Bio-Herbal Research Foundation. 3. Brief facts of the case are that the assessee has filed return of income on 20.11.2014 declaring total income at ₹ 4,47,910/-. On scrutiny of the accounts, it revealed that the assessee-company has given donation to Herbicure Healthcare Bio-Herbal Research Foundation, Calcutta. A survey action was carried out at the premises of the donee wherein it revealed to the Revenue that this concern was misusing the benefit of notification issued by the Income Tax Department. It has been getting donations from various sources, and after deducting certain amount of commission, these donations were refunded in cash. On the basis of that survey report registration granted to its favour was cancelled. On the basis of the outcome of that survey report, the ld. AO construed the donation given by the assessee as bogus. Appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uarely applicable to the present facts of the case, therefore we disagree with the finding of the authorities below. Accordingly we hold that the assessee is entitled for the benefit of the donation made to SHG PH under section 35(1)(ii) of the Act. 7.2 Regarding the donation made to the NCT , we note that the benefit of the deduction under section 35AC of the Act was denied to the assessee on the reasoning that the trustee of such trust in the statement given under section 133A during the survey operation has admitted the fact the NCT is engaged in the activity of providing the accommodating entries to the parties. However, admittedly there was no cross-examination provided to the assessee of the trustees who have admitted to be engaged in providing accommodating entries. Thus the question arises whether the assessee can be denied the benefit of the deduction under section 35AC of the Act on the basis of the statement recorded during survey operation which were not cross verified despite the request was made to the AO by the assessee. In our considered view the answer stands in favour of the assessee. The statement recorded during survey operation cannot be used against ..... X X X X Extracts X X X X X X X X Extracts X X X X
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