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TMI Blog2019 (6) TMI 1684X X X X Extracts X X X X X X X X Extracts X X X X ..... t find any infirmity in the order of the ld. CIT(A) in deleting the disallowance of donation claimed U/s 35(1)(iii) of the Act in respect of donation to M/s School of Human Genetics Population Health, Kolkata. Appeal of the revenue is dismissed. - ITA No. 1229/JP/2018 - - - Dated:- 6-6-2019 - SHRI RAMESH C SHARMA, AM SHRI VIJAY PAL RAO, JM For the Revenue : Shri Ashok Khanna (JCIT) For the Assessee: Shri P.C. Parwal (CA) ORDER PER: R.C. SHARMA, A.M. This appeal by the revenue is directed against the order dated 31/08/2018 of ld. CIT(A)-I, Jaipur for the A.Y. 2014-15 in the matter of order passed U/s 143(3) of the Income Tax Act, 1961 (in short, the Act). The grounds taken by the Revenue reads as under: (i) Whether in the facts and the circumstances of the case, the ld. CIT(A) was justified in allowing the deduction U/s 35(1)(iii) of donation made to Rs.87,50,000/- to M/s School of Human Genetics Population Health, Kolkata when the said donation was bogus and the whole transaction a SHAM transaction. (ii) Whether in the facts and in the circumstances of the case and in law, the ld. CIT(A) was justified in deleting the addition o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notified during the F.Y. 2013-14 when the assessee has made donations. The CBDT has rescinded notification on 15/9/2016. Although, it has been made retrospective effect from 01/4/2007. This institute was validly recognized by the CBDT on the date of donation made by the assessee. The approval granted to the institute was very much in force at the time of donation made by the assessee. The assessee had no reason to disbelieve the operation of approval and notification of the institute. In such a situation, the deduction claimed by the assessee is justified. The subsequent notification by the CBDT rescinding the approval retrospectively shall not or should not affect the claim of the assessee. There was no information with the assessee regarding non-genuinity or not observing the standard fixed by the CBDT for making eligible itself for deduction U/s 35 of the Act. The assessee's act was in a bonafide manner. It is well settled proposition of law that no additional tax burden can be put on the assessee by making retrospective operations of certain notifications or withdrawal of notifications. In the case of Hitendra Vishnu Thakur Vs. State of Maharastra (supra), the Hon ble Supre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to cross examine the third party, who has given such statement. Further in view of the decision of Hon'ble Allahabad High Court in the case of CCE Vs. Shyam Traders 2016 (333) ELT 389 and the decision of Hon`ble Supreme Court in the case of Andaman Timber Industries (324) ELT 641 and the various other case laws relied upon by the Id. A.R., we find that the authorities below were not justified in denying claim of deduction U/s 35(1) (ii) of the Act to the assessee, hence, we set aside the orders of the authorities below. 8. In the result, appeal of the assessee is allowed. 6. Another Coordinate Bench in the case of DCIT vs. Maco Corporation (India) Pvt. Ltd. in ITA No. 16/KOL/2017 for the AY 2013-14, similar issue was examined by the Hon'ble ITAT, Kolkata and vide its judgement dated 14.03.2018, it has been held by the Hon'ble ITAT, Kolkata that: 8. We have heard the rival submissions and perused the materials available on record. The brief facts pertaining to HHBHRF are as under:- * * * * * * * * * * * 8.1. The brief fact pertaining to SGHPH are as under:- a) SGHPH was recognized vide Gazette Notification dated 28.1.2009 issued by the Centra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the power to cancel the registration certificate granted under Section 12A of the Act. Second, the order passed under Section 12A by the CIT is a quasi-judicial order and being quasi-judicial in nature, it could be withdrawn/recalled by the CIT only when there was express power vested in him under the Act to do so. In this case there was no such express power. 22. Indeed, the functions exercisable by the CIT under Section 12A are neither legislative and nor executive but as mentioned above they are essentially quasi judicial in nature. 23. Third, an order of the CIT passed under Section 12A does not fall in the category of orders mentioned in Section 21 of the General Clauses Act. The expression order employed in Section 21 would show that such order must be in the nature of a notification , rules and bye laws etc. (see - Indian National Congress (1) v. Institute of Social Welfare [2002] 5 SCC 685. 24. In other words, the order, which can be modified or rescinded by applying Section 21, has to be either executive or legislative in nature whereas the order, which the CIT is required to pass under Section 12A of the Act, is neither legislative nor an executive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by him under Section 12A till the power was expressly conferred on the CIT by Section 12AA(3) of the Act w.e.f. 01.10.2004. We hold that the ratio decidendi of the aforesaid judgement of the Hon'ble Apex Court would squarely be applicable to the facts of the instant case. In fact, the assessee's case herein falls on a much better footing than the facts before the Hon'ble Apex Court. In the case before Hon'ble Apex Court, the power of cancellation of registration us 12A of the Act was conferred by the Act on the Id CIT w.e.f. 1.10.2004 and the Hon'ble Apex Court held that prior to that date. no cancellation of registration could happen. But in the instant case., there is absolutely no provision for withdrawal of recognition u/s 35(1)(ii) of the Act. Hence we hold that the withdrawal of recognition u/s 35(1)(ii) of the Act in the hands of the payee organizations would not affect the rights and interests of the assessee herein for claim of weighted deduction u/s 35(1)(ii) of the Act. 8.4. We also find that the co-ordinate bench of this tribunal in exactly similar facts had decided the issue in favour of the assessee in the following cases:- a) Rajda P ..... X X X X Extracts X X X X X X X X Extracts X X X X
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