TMI Blog2022 (7) TMI 1416X X X X Extracts X X X X X X X X Extracts X X X X ..... ck to the assessee from any of the records as well. Decided in favour of assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee in the case of the P.M. Bhimani Orgochem Pvt. Ltd. vs. DCIT in ITA Nos. 2586, 2587 & 2588/Ahd/2017for A.Ys 2010-11, 2011-12 & 2012-13 have decided the issue in favour of the assessee. 8. On the other hand, the Ld. DR vehemently supported the order of the authorities below. 9. We have heard the rival contentions of both the parties and perused the materials available on record. At the outset, we note that this Tribunal involving identical facts and circumstances in the group case of P.M. Bhimani Orgochem Pvt. Ltd. vs. DCIT in ITA Nos. 2586, 2587 & 2588/Ahd/2017 for A.Ys 2010-11, 2011-12 & 2012-13 have decided the issue in favour of the assessee. The relevant extract of the order is reproduced as under: 9. We have heard both the part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 35(1)(ii) of the Act merely on the ground that the approval was withdrawn by the Government on a later date. In this regard we place our reliance on the order of this tribunal involving identical issue which has been decided in favour of the assessee in the case of ACIT v/s M/s Thakkar Govindbhai Ganpatlal HUF in ITA No. 2318/AHD/2017 wherein it was held as under: 5. We have duly considered rival contentions and gone 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 Rs.8,75,000/- on account of alleged bogus donation to Herbicure Healthc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s are rightly been treated as bogus, and addition is rightly made. 6. We have duly considered rival contentions and gone through the record carefully. The AO is harping upon an information supplied by the survey tern of Calcutta. He has not specifically recorded statement of representatives of the donee. He has not brought on record a specific evidence wherein donee has deposed that donations received from the assessee was paid back in cash after deducting commission. On the basis of a general information collected from the donee, the donation made by the assessee cannot be doubted. Neither representatives of the donee have been put to cross-examination, nor any specific reply deposing that such donation was not received, or if received ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 the assessee until and unless it is cross verified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment Year 2010-11 filed by the assessee is thus allowed. 11. ITA Nos.2587 & 2588/Ahd/2017 for Assessment Years 2011-12 & 2012-13 are identical and no distinguishing facts were pointed out by the Ld. DR, hence both these appeals as well are allowed. 9.1 Before us, no material has been placed on record by the Revenue to demonstrate that the decision of Tribunal as discussed above has been set aside/ stayed or overruled by the higher Judicial Authorities. Before us, the Revenue has not placed any material on record to point out any distinguishing feature in the facts of the case for the year under consideration and that of case referred above nor has placed any contrary binding decision in its support. Thus, respectfully following the abo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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