M/S MANTHAN INC,MUMBAI vs. INCOME TAX CIRCLE, 19(2) MUMBAI, MUMBAI

PER OM PRAKASH KANT, AM

These two appeals by the assessee are directed against two separate orders both dated 26.09.2022 passed by the Ld. National Faceless Appeal Centre (NFAC), Delhi [in short ‘the Ld. CIT(A)’] for assessment year 2013-14 and 2014-15 respectively. Being identical issue involved in both these appeals , same were heard together and

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disposed off by way of this consolidated order for convenience and disposed off by way of this consolidated order for convenience and disposed off by way of this consolidated order for convenience and avoid repetition of facts. avoid repetition of facts.

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6.1 The Assessing Officer Assessing Officer subsequently received information from received information from the Investigation Wing the Investigation Wingof the Income-tax Department tax Department that M/s Navjeevan Charitable Trust was engaged in issuing bogus entry of Navjeevan Charitable Trust was engaged in issuing bogus entry o Navjeevan Charitable Trust was engaged in issuing bogus entry o donations u/s 35AC(1) of the Act u/s 35AC(1) of the Act to various parties. to various parties. The information interalia alia contains that M/s Navjeevan Charitable M/s Navjeevan Charitable Trust was used to received cheque payments of purported donation, Trust was used to received cheque payments of purported donation Trust was used to received cheque payments of purported donation which were then routed to certain bogus purchase parties for then routed to certain bogus purchase parties for then routed to certain bogus purchase parties for purchase of wheat, rice, pulses, cloth etc. and th wheat, rice, pulses, cloth etc. and then bogus purchase parties used to transfer the money to some other bank account parties used to transfer the money to some other bank account parties used to transfer the money to some other bank account controlled by Mr. Ashok Bagaria controlled by Mr. Ashok Bagaria, the trustee of Navjeevan the trustee of Navjeevan Charitable Trust and then cash used to be withdrawn from those Charitable Trust and then cash used to be withdrawn from those Charitable Trust and then cash used to be withdrawn from those accounts and returned back to the donors. nts and returned back to the donors. Another Another trustee Mr. Subhash Kadam in his statement dated 10.11.2014 described the Subhash Kadam in his statement dated 10.11.2014 described the Subhash Kadam in his statement dated 10.11.2014 described the entire process of receiptof cheque receiptof cheque from donor, expenses of bogus expenses of bogus purchase by the trust and then routing of the cash back to the purchase by the trust and then routing of the cash back to the purchase by the trust and then routing of the cash back to the donors. He stated of receipt of receipt of commission @ 3% in the process of of commission @ 3% in the process of giving donation receipt to the donors. The Ld. Assessing Officer in giving donation receipt to the donors. The Ld. Assessing Officer in giving donation receipt to the donors. The Ld. Assessing Officer in para 3.3, the order has reproduced the statement of the bogus para 3.3, the order has reproduced the statement of the bogus para 3.3, the order has reproduced the statement of the bogus purchase parties, which is reproduced as purchase parties, which is reproduced as under:

3.3 Statements of the Statements of these bogus purchase parties have also se bogus purchase parties have also been recorded where they have stated that they only provided been recorded where they have stated that they only provided been recorded where they have stated that they only provided accommodation bills to Navjeevan and that the payments accommodation bills to Navjeevan and that the payments accommodation bills to Navjeevan and that the payments were returned to Shri. Ashok Bagaria either through cash or were returned to Shri. Ashok Bagaria either through cash or were returned to Shri. Ashok Bagaria either through cash or through payment into one of the bank account through payment into one of the bank accounts controlled by s controlled by him.

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 For instance, Shri. Amit Sanghvi, proprietor of Amit For instance, Shri. Amit Sanghvi, proprietor of Amit For instance, Shri. Amit Sanghvi, proprietor of Amit Corporation, has stated that no business is carried out Corporation, has stated that no business is carried out Corporation, has stated that no business is carried out by this concern, and that he returns cash back to by this concern, and that he returns cash back to by this concern, and that he returns cash back to Navjeevan through one Mr. Amish Modi. Shri. Jitendra Navjeevan through one Mr. Amish Modi. Shri. Jitendra Navjeevan through one Mr. Amish Modi. Shri. Jitendra Thombre, proprietor of Thombre, proprietor of M/S J Fabrics, stated that the M/S J Fabrics, stated that the proprietorship was formed by his wife's employer, Shri. proprietorship was formed by his wife's employer, Shri. proprietorship was formed by his wife's employer, Shri. Babulal Doshi, in the name of Jitendra Thombre. There Babulal Doshi, in the name of Jitendra Thombre. There Babulal Doshi, in the name of Jitendra Thombre. There was no business carried out, and the proprietor would was no business carried out, and the proprietor would was no business carried out, and the proprietor would simply sign blank cheques and provide the same to simply sign blank cheques and provide the same to simply sign blank cheques and provide the same to Shri. Babul Shri. BabulalDoshi.  Shri. Rajesh Shri. Rajesh Warde, proprietor of M/S Swastik Shri. Rajesh Warde, proprietor of Warde, proprietor of M/S Swastik M/S Swastik Enterprises and M/S Mehul Synthetics, has stated that Enterprises and M/S Mehul Synthetics, has stated that Enterprises and M/S Mehul Synthetics, has stated that no business activity was carried out and the money no business activity was carried out and the money no business activity was carried out and the money deposited in the bank accounts would be transferred to deposited in the bank accounts would be transferred to deposited in the bank accounts would be transferred to bank accounts controlled by Shri. Ashok B bank accounts controlled by Shri. Ashok Bagaria. Bogus agaria. Bogus bills would be issued for wheat, rice, pulses, etc. bills would be issued for wheat, rice, pulses, etc. bills would be issued for wheat, rice, pulses, etc.  Shri. RashmikantJhaveri, proprietor of M/S Krishna Shri. RashmikantJhaveri, proprietor of M/S Krishna Shri. RashmikantJhaveri, proprietor of M/S Krishna Trading Corporation, M/S Rahul Enterprises and M/S Trading Corporation, M/S Rahul Enterprises and M/S Trading Corporation, M/S Rahul Enterprises and M/S J.B. & Sons stated that there was no business in these J.B. & Sons stated that there was no business in these J.B. & Sons stated that there was no business in these concerns and that accommodation b concerns and that accommodation bills for stationery ills for stationery and food grains were provided to Navjeevan. He further and food grains were provided to Navjeevan. He further and food grains were provided to Navjeevan. He further stated that staff of Mr. Amish Modi used to come for stated that staff of Mr. Amish Modi used to come for stated that staff of Mr. Amish Modi used to come for collecting the accommodation bill along with delivery collecting the accommodation bill along with delivery collecting the accommodation bill along with delivery challan to make the transaction look genuine though no challan to make the transaction look genuine though no challan to make the transaction look genuine though no movement of goods e movement of goods ever took place. The money ver took place. The money deposited in the bank would be transferred immediately deposited in the bank would be transferred immediately deposited in the bank would be transferred immediately to bank accounts controlled by Mr. Ashok Bagaria, on to bank accounts controlled by Mr. Ashok Bagaria, on to bank accounts controlled by Mr. Ashok Bagaria, on the instructions of Mr. Amish Modi. He also stated that the instructions of Mr. Amish Modi. He also stated that the instructions of Mr. Amish Modi. He also stated that M/S Mahi Enterprise, a proprietary concern of Ms. M/S Mahi Enterprise, a proprietary concern of Ms. M/S Mahi Enterprise, a proprietary concern of Ms.

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Seema Raichura, Seema Raichura, was controlled by him and would was controlled by him and would provide accommodation bills of soaps and condoms to provide accommodation bills of soaps and condoms to provide accommodation bills of soaps and condoms to Navieevan. Navieevan.  Shri. Shri. Shri. KhozemaJaorawala, KhozemaJaorawala, KhozemaJaorawala, director director director of of of M/S M/S M/S Vaani Vaani Vaani Mercantile Mercantile Mercantile Pvt Pvt Pvt Ltd Ltd Ltd stat stat stat accommodation accommodation accommodation bills bills bills to to to Navjeevan Charitable Trust. Navjeevan Charitable Trust.

6.1 In In view view of of above above observation observations, during g reassessment reassessment proceedings the Ld. Assessing Officer issued notice u/s 133(6) of the Ld. Assessing Officer issued notice u/s 133(6) of the Ld. Assessing Officer issued notice u/s 133(6) of the Act calling for details from the Act calling for details from M/s Navjeevan Charitable Charitable Trust and also to afford an opportunity of cross also to afford an opportunity of cross-examination to the assessee. examination to the assessee. However, the notice sent u/s However, the notice sent u/s 133(6) of the Act were returned 133(6) of the Act were returned unserved. In the circumstances, the Assessing Officer asked the unserved. In the circumstances, the Assessing Officer asked the unserved. In the circumstances, the Assessing Officer asked the assessee to produce the trustee assessee to produce the trustee of said trust however however no compliance was made on the part of the assessee on the part of the assessee. In the circumstances, the . In the circumstances, the Assessing Officer disallowed Assessing Officer disallowed the claim of donation of the assessee of the claim of donation of the assessee of ₹30 lakhs. The Ld. CIT(A) followed the finding of the Tribunal order 30 lakhs. The Ld. CIT(A) followed the finding of the Tribunal order 30 lakhs. The Ld. CIT(A) followed the finding of the Tribunal order dated 27.08.2019 wherein the Tribunal observed at under : dated 27.08.2019 wherein the Tribunal observed at under : dated 27.08.2019 wherein the Tribunal observed at under :

“7. Upon careful consideration I note that the recipient Upon careful consideration I note that the recipient Upon careful consideration I note that the recipient of the donation in this case h of the donation in this case has unequivocally admitted as unequivocally admitted that the assessee has given bogus accommodation to him. that the assessee has given bogus accommodation to him. that the assessee has given bogus accommodation to him. In this view of the matter it was incumbent upon the In this view of the matter it was incumbent upon the In this view of the matter it was incumbent upon the assessee to rebut the same being cogent evidences. It is assessee to rebut the same being cogent evidences. It is assessee to rebut the same being cogent evidences. It is strange that assessee is asking the recipient whom the strange that assessee is asking the recipient whom the strange that assessee is asking the recipient whom the assessee has given donation and who is his witness to be has given donation and who is his witness to be has given donation and who is his witness to be produced by the assessing officer for cross produced by the assessing officer for cross-examination. examination.

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“5. I find that on identical set of facts, the Co 5. I find that on identical set of facts, the Co-ordinate Bench in ordinate Bench in the case of Bhavita Chemicals Pvt. Ltd. Vs. ITO in ITA No. the case of Bhavita Chemicals Pvt. Ltd. Vs. ITO in ITA No. the case of Bhavita Chemicals Pvt. Ltd. Vs. ITO in ITA No. 3665/M/2019 for AY 2010 3665/M/2019 for AY 2010-11 decided on 01.12.2020 held as 11 decided on 01.12.2020 held as under:

“4. Both sides heard, orders of authorities below “4. Both sides heard, orders of authorities below “4. Both sides heard, orders of authorities below perused. The assessee made donation of Rs.5,00,000/- perused. The assessee made donation of Rs.5,00,000/ perused. The assessee made donation of Rs.5,00,000/ to NCT in March, 2010 and claimed the benefit of to NCT in March, 2010 and claimed the benefit of to NCT in March, 2010 and claimed the benefit of deduction under section 35AC of the Act in its return of deduction under section 35AC of the Act in its return of deduction under section 35AC of the Act in its return of income for assessment year 2010 income for assessment year 2010-11. Subsequentl 11. Subsequently, search action was carried out in the case of NCT and it search action was carried out in the case of NCT and it search action was carried out in the case of NCT and it

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was found that the Trust was issuing bogus donation was found that the Trust was issuing bogus donation was found that the Trust was issuing bogus donation receipts. On the basis of search action, the assessee’s receipts. On the basis of search action, the assessee’s receipts. On the basis of search action, the assessee’s claim of deduction in assessment year 2010-11 was claim of deduction in assessment year 2010 claim of deduction in assessment year 2010 disallowed in reassessment proceedings. disallowed in reassessment proceedings. The contention The contention of the Revenue is that the donation amount paid by the of the Revenue is that the donation amount paid by the of the Revenue is that the donation amount paid by the assessee to NCT has flownback to the assessee. I find assessee to NCT has flownback to the assessee. I find assessee to NCT has flownback to the assessee. I find that no positive evidence is brought on record by the that no positive evidence is brought on record by the that no positive evidence is brought on record by the Revenue to show that on the date of donation made by Revenue to show that on the date of donation made by Revenue to show that on the date of donation made by the assessee, NCT was no the assessee, NCT was not holding valid registration t holding valid registration certificate. On the contrary, the assessee has filed certificate. On the contrary, the assessee has filed certificate. On the contrary, the assessee has filed evidence to show that NCT was holding valid registration evidence to show that NCT was holding valid registration evidence to show that NCT was holding valid registration certificate from the Department on the date of donation certificate from the Department on the date of donation certificate from the Department on the date of donation and the same was subsequently renewed in 2011. This and the same was subsequently renewed in 2011. This and the same was subsequently renewed in 2011. This fact is e fact is evident from notification issued by Ministry of vident from notification issued by Ministry of Finance dated 30/11/2010 at page 70 to 72 of the Paper Finance dated 30/11/2010 at page 70 to 72 of the Paper Finance dated 30/11/2010 at page 70 to 72 of the Paper Book. It is further observed that on the basis of Book. It is further observed that on the basis of Book. It is further observed that on the basis of statement/evidence collected at the back of assessee, the statement/evidence collected at the back of assessee, the statement/evidence collected at the back of assessee, the claim of deduction under section 35AC of the Act has claim of deduction under section 35AC of the A claim of deduction under section 35AC of the A been disallowed in proceedings under section 147 r.w.s. been disallowed in proceedings under section 147 r.w.s. been disallowed in proceedings under section 147 r.w.s. 148 of the Act. It is a well settled law that any evidence 148 of the Act. It is a well settled law that any evidence 148 of the Act. It is a well settled law that any evidence collected at the back of assessee if not put to the collected at the back of assessee if not put to the collected at the back of assessee if not put to the assessee for crossexamination would result in violation assessee for crossexamination would result in violation assessee for crossexamination would result in violation of principles of natural j of principles of natural justice. In the instant case the ustice. In the instant case the assessee asked for cross assessee asked for cross-examination of the trustee, examination of the trustee, however, the same was rejected by the Assessing however, the same was rejected by the Assessing however, the same was rejected by the Assessing Officer. The Hon'ble Supreme Court of India in the case of Officer. The Hon'ble Supreme Court of India in the case of Officer. The Hon'ble Supreme Court of India in the case of Andman Timber Industries vs. CCE, 62 taxmann.com 3 Andman Timber Industries vs. CCE, 62 taxmann.com 3 Andman Timber Industries vs. CCE, 62 taxmann.com 3 has held that has held that not providing opportunity to crossexamine not providing opportunity to crossexamine the witness is a serious flaw which renders the order the witness is a serious flaw which renders the order the witness is a serious flaw which renders the order

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nullity. The impugned order is liable to be quashed on nullity. The impugned order is liable to be quashed on nullity. The impugned order is liable to be quashed on this ground alone. It is further observed that no cogent this ground alone. It is further observed that no cogent this ground alone. It is further observed that no cogent evidence has been brought on record by the Revenue to evidence has been brought on record by the Reve evidence has been brought on record by the Reve substantiate that the donation made by assessee substantiate that the donation made by assessee substantiate that the donation made by assessee through banking channel has been received back by through banking channel has been received back by through banking channel has been received back by assessee in cash. The assessment order and the assessee in cash. The assessment order and the assessee in cash. The assessment order and the impugned order has been passed purely on assumptions impugned order has been passed purely on assumptions impugned order has been passed purely on assumptions and presumptions. and presumptions.

7.1 He further submitted that the Co He further submitted that the Co-ordinate Bench ordinate Bench of the Tribunal Kolkata Bench in the case of Tribunal Kolkata Bench in the case of Raj Karan Dasani in ITA No. Raj Karan Dasani in ITA No. 2346/Kol/2019 has deleted the disallowance of identical donation has deleted the disallowance of identical donation has deleted the disallowance of identical donation of ₹ 30 lakhs on the basis that 30 lakhs on the basis that (i) regulation was in force regulation was in force (ii) valid documentation was there and documentation was there and (iii) no opportunit no opportunity for cross- examination was provided to the assessee. The Ld. Counsel examination was provided to the assessee. The Ld. Counsel examination was provided to the assessee. The Ld. Counsel submitted that in the instant case M/s Navjeevan Charitable Trust submitted that in the instant case M/s Navjeevan Charitable Trust submitted that in the instant case M/s Navjeevan Charitable Trust was granted registration by Government of India which was in was granted registration by Government of India which was was granted registration by Government of India which was operation at the time of at the time of donation given by the assessee. He the assessee. He further

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submitted that the assessee got valid receipt as well as submitted that the assessee got valid receipt as well as submitted that the assessee got valid receipt as well as certificatesfrom donee and it was not within the control of the from donee and it was not within the control of the from donee and it was not within the control of the assessee that how the donee organization has assessee that how the donee organization has utilized utilized the money. He further submitted that no cross He further submitted that no cross-examination was examination was provided to the assessee and there was no proof that assessee had received back assessee and there was no proof that assessee had received back assessee and there was no proof that assessee had received back the money in question. The Ld. Counsel submitted that assessee the money in question. The Ld. Counsel submitted that assessee the money in question. The Ld. Counsel submitted that assessee has fulfilled all the conditions laid down u/s 35AC of the Act and has fulfilled all the conditions laid down u/s 35AC of the Act and has fulfilled all the conditions laid down u/s 35AC of the Act and therefore, following the finding of the Tribunal in the recalled order therefore, following the finding of the Tribunal in the therefore, following the finding of the Tribunal in the dated 07.10.2021,the order of 07.10.2021,the order of the Ld. CIT(A) need to be reversed. the Ld. CIT(A) need to be reversed.

“Whereas by notification of the Government of India , in the Ministry of Finance Whereas by notification of the Government of India , in the Ministry of Finance Whereas by notification of the Government of India , in the Ministry of Finance (Department of Revenue) issue (Department of Revenue) issue under subsection (1) read with clause (b) of the under subsection (1) read with clause (b) of the Explanation to section 35AC of the In Explanation to section 35AC of the Income-tax Act, 1961 (43 of 1961) tax Act, 1961 (43 of 1961), the central Government had specified projects / scheme for exemption , in respect central Government had specified projects / scheme for exemption , in respect central Government had specified projects / scheme for exemption , in respect of the association and institution approved by the National Committee , of the association and institution approved by the Nat of the association and institution approved by the Nat mentioned in the Table below: mentioned in the Table below:

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Sr. Name & Address of the Name & Address of the Project or Scheme Maximum amount No. Institution of cost recommended by the Committee under section 35AC ₹68.65 crores 1. Navjeevan Navjeevan Charitable Charitable Shree Shree Navijeevan, Navijeevan, Vocational Vocational Training Training Trust, Programme, Medical camps and goods & Programme, Medical camps and goods & 08, Jolly Bhavan No. 1,10 08, Jolly Bhavan No. 1,10 cloth distribution. New Marine Lines,  S.O. No. 121(E) dated 12.01.2009 at Sl. S.O. No. 121(E) dated 12.01.2009 at Sl. Mumbai-400020. No. 20 for a period of three financial No. 20 for a period of three financial years till 2010-11 for ₹39.11  S.O. No. 852(E) dated 27.04.2011 for a 11 for a period of three financial years till 2013- period of three financial years till 2013 14 and amending the project cost to 14 and amending the project cost to ₹68.65 crore and amending the address 68.65 crore and amending the address of the Trust from 602, Shastri Hall, of the Trust from 602, Shastri Hall, 292, J. Dadji Road, Mumbai-400007 to 400007 to 115, Jolly Bhavan No. 1, 10, New 115, Jolly Bhavan No. 1, 10, New Marine Lines, Mumbai-400020.  S.O. No. 1228(E) dated 30.05.2011 S.O. No. 1228(E) dated 30.05.2011 amending the address to 08, Jolly amending the address to 08, Jolly Bhavan No.1, 10, New Marine Lines, Bhavan No.1, 10, New Marine Lines, Mumbai-400020. 24.49 crores 2. Navjeevan Navjeevan Charitable Charitable A caring hand Trust,  S.O. No. 1860(E) dated 11.08.2011 at S.O. No. 1860(E) dated 11.08.2011 at 08, Jolly Bhavan No. 1, 08, Jolly Bhavan No. 1, Sl. No. 14 for a period of three Sl. No. 14 for a period of three 10 New Marine Lines, financial years till 2013-14 14 for for Mumbai-400020. ₹15.34 crores.  S.O. No. 3829(E) dated 27.12.2013 S.O. No. 3829(E) dated 27.12.2013 for a period of three financial years for a period of three financial years till 2016-17 17 and and amending amending the the project cost to ₹24.49 crores 3. Navjeevan Navjeevan Charitable Charitable Sankalap 27.97 crores Trust,  S.O. No. 3022(E) dated 07.10.2013 at S.O. No. 3022(E) dated 07.10.2013 at 08, Jolly Bhavan No. 1, 08, Jolly Bhavan No. 1, Sl. No. 9 for a period of three Sl. No. 9 for a period of three 10 New Marine Lines, financial years till 2015-16 16 for for Mumbai-400020. ₹27.97 crores 8.1 According to Ld DR Ld DR, in view of subsequent withdrawal of , in view of subsequent withdrawal of approval , which was , which was granted to M/s Navjeevan Charitable Trust granted to M/s Navjeevan Charitable Trust u/s 35AC of the Act, the assessee is no longer eligible for deduction u/s 35AC of the Act, the assessee is no longer eligible for deduction u/s 35AC of the Act, the assessee is no longer eligible for deduction for the donation paid under the scheme of section 35AC of the Act. the donation paid under the scheme of section 35AC of the Act. the donation paid under the scheme of section 35AC of the Act. Further, the Ld. DR submitted that in view of notice u/s 133(6) of submitted that in view of notice u/s 133(6) of the Act returned back returned back unserved, onus was on the assessee to the assessee to produce trustee of said M/s Navjeevan Charitable Trust. In such said M/s Navjeevan Charitable Trust. In such said M/s Navjeevan Charitable Trust. In such circumstances, the plea of no cross ircumstances, the plea of no cross-examinations examinations provided to the

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assessee is not relevant because in view of return relevant because in view of return back back of notice u/s 133(6), the onus shifted to the assessee to produce the said party onus shifted to the assessee to produce the said party onus shifted to the assessee to produce the said party which being witness of the assessee. According to the Ld. DR, the which being witness of the assessee. According to the L which being witness of the assessee. According to the L decisions relied upon the Ld. Counsel of the assessee non-providing decisions relied upon the Ld. Counsel of the assessee decisions relied upon the Ld. Counsel of the assessee the cross-examination does not apply to the facts of the instant examination does not apply to the facts of the instant examination does not apply to the facts of the instant case.

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approval of projects of M/s Navjjevan Charitable Trust has been approval of projects of M/s Navjjevan Charitable Trust has been approval of projects of M/s Navjjevan Charitable Trust has been subsequently withdrawn by the Competent authority, so no subsequently withdrawn by the Competent authority, so no subsequently withdrawn by the Competent authority, so no deduction should be allowed to the assessee. deduction should be allowed to the assessee.

9/1 As far as contention of the LD DR that deduction should be As far as contention of the LD DR that deduction should be As far as contention of the LD DR that deduction should be denied in view of subsequent withdrawal of notification in relation subsequent withdrawal of notification in relation subsequent withdrawal of notification in relation to section 35AC approval granted earlier is concerned, we find that to section 35AC approval granted earlier is concerned, to section 35AC approval granted earlier is concerned, the Explanation below provision of section 35AC(2) of the Act don’t xplanation below provision of section 35AC(2) of the Act don’t xplanation below provision of section 35AC(2) of the Act don’t permit for withdrawal permit for withdrawal of deduction in the hands of deduction in the hands of donor in such circumstances. . The The relevant relevant Explanation section section 35AC 35AC is is reproduced as under: as under:

[Explanation. The deduction, to which the assessee is entitled in [Explanation. The deduction, to which the assessee is entitled in [Explanation. The deduction, to which the assessee is entitled in respect of any sum paid to a public sector company or a local respect of any sum paid to a public sector company or a local respect of any sum paid to a public sector company or a local authority or to an association or in authority or to an association or institution for carrying out the stitution for carrying out the eligible project or scheme referred to in this section applies, shall eligible project or scheme referred to in this section applies, shall eligible project or scheme referred to in this section applies, shall not be denied merely on the ground that subsequent to the not be denied merely on the ground that subsequent to the not be denied merely on the ground that subsequent to the payment of such sum by the assessee, payment of such sum by the assessee,-

(a) the approval granted to such association or institution the approval granted to such association or institution the approval granted to such association or institution has been withdrawn; or been withdrawn; or

(b) the notification notifying the eligible project or scheme carried (b) the notification notifying the eligible project or scheme carried (b) the notification notifying the eligible project or scheme carried out by the public sector company or local authority or association out by the public sector company or local authority or association out by the public sector company or local authority or association or institution has been withdrawn.] or institution has been withdrawn.]

9.2 Therefore, we reject the contention of Ld. DR for confi Therefore, we reject the contention of Ld. DR for confi Therefore, we reject the contention of Ld. DR for confirming disallowance of donation on this ground. disallowance of donation on this ground.

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9.2 According to Ld. Counsel of the assessee, no cross According to Ld. Counsel of the assessee, no cross According to Ld. Counsel of the assessee, no cross- examination has been provided to the assessee, therefore, the examination has been provided to the assessee, therefore, the examination has been provided to the assessee, therefore, the donation paid cannot be disallowed merely on the basis of donation paid cannot be disallowed merely on the basis of donation paid cannot be disallowed merely on the basis of statement of the trustee of Navje statement of the trustee of Navjeevan Trust ignoring the notification evan Trust ignoring the notification issued by the Government of India. issued by the Government of India. However, we reject the However, we reject the contention of the assessee contention of the assessee of non-providing of cross examination providing of cross examination due to the reasons that i that it is the assessee who is seeking t is the assessee who is seeking deduction of the donation paid of the donation paid to M/s Navjeevan Charitable Trust Navjeevan Charitable Trust and on the basis of address of Navjeevan Charitable Trust of Navjeevan Charitable Trust provided by the provided by the assessee, the Assessing Officer issued notice u/s 133(6 the Assessing Officer issued notice u/s 133(6 the Assessing Officer issued notice u/s 133(6), however same returned back back unserved.Therefore, the onus shifted the the onus shifted the assessee for producing ducingthe said party which the assessee has failed said party which the assessee has failed in producing so. The assessee also failed to provide current address . The assessee also failed to provide current address . The assessee also failed to provide current address of said Navjeevan Charitable Trust or their Trustees and without of said Navjeevan Charitable Trust or their Trustees and without of said Navjeevan Charitable Trust or their Trustees and without which, it was not possible for it was not possible for the AO to verify the truthfulness of AO to verify the truthfulness of claim of assessee, particularly the information of bogus donation , particularly the information of bogus donation. , particularly the information of bogus donation Therefore, the assessee cannot ask the Revenue to provide for assessee cannot ask the Revenue to provide for assessee cannot ask the Revenue to provide for cross-examination of said party of said party. The decisions relied upon in this . The decisions relied upon in this regard are accordingly distinguishable. are accordingly distinguishable.

9.3 The decisions of the Tribunal ‘SMC’ Bench dated 07.10.2021 is decisions of the Tribunal ‘SMC’ Bench dated 07.10.2021 is decisions of the Tribunal ‘SMC’ Bench dated 07.10.2021 is also based on no cross also based on no cross-examination provided. Since, we have examination provided. Since, we have already held that in view of notice u/s 133(6) of the Act issued to already held that in view of notice u/s 133(6) of the already held that in view of notice u/s 133(6) of the Navjeevan Charitable Trust returned back unserved, onus was Navjeevan Charitable Trust returned back unserved, onus was Navjeevan Charitable Trust returned back unserved, onus was onthe assessee to produce M/s Navjeevan Charitable Trust and to produce M/s Navjeevan Charitable Trust and to produce M/s Navjeevan Charitable Trust and

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hence hence plea plea of of cross-examination cross is not not applicable applicable and accordingly,ratio of ,ratio of the finding of the Tribunal ‘SMC’ Bench in the finding of the Tribunal ‘SMC’ Bench in assessment year 2012 assessment year 2012-13, can’t be applied over facts of instant , can’t be applied over facts of instant case.

9.4 The assessee under provision of section 35AC(2) was required under provision of section 35AC(2) was required under provision of section 35AC(2) was required to file a certificate to file a certificate in form No. 58A of Income- -tax forms with particulars relating to progress in work relating to project in particulars relating to progress in work relating to project in particulars relating to progress in work relating to project in prescribed proforma. The relevant part of provision is reproduced as prescribed proforma. The relevant part of provision is reproduced as prescribed proforma. The relevant part of provision is reproduced as under:

(2) The deduction under sub section (1) shall not be allowed The deduction under sub section (1) shall not be allowed The deduction under sub section (1) shall not be allowed unless the assessee furnishes along with his return of income a unless the assessee furnishes along with his return of income a unless the assessee furnishes along with his return of income a certificate-

(a) where the payment is to a public sector company or a local (a) where the payment is to a public sector company or a local (a) where the payment is to a public sector company or a local authority or an association or institution referred to in s authority or an association or institution referred to in s authority or an association or institution referred to in sub- section (1), from such public sector company or local authority or, section (1), from such public sector company or local authority or, section (1), from such public sector company or local authority or, as the case may be, association or institution; as the case may be, association or institution;

"(b) in any other case, from an accountant, as defined in the "(b) in any other case, from an accountant, as defined in the "(b) in any other case, from an accountant, as defined in the Explanationbelow sub Explanationbelow sub-section (2) of section 288,

in such form, manner and c in such form, manner and containing such particulars (including ontaining such particulars (including particulars relating to the progress in the work relating to the particulars relating to the progress in the work relating to the particulars relating to the progress in the work relating to the eligible project or scheme during the previous year) as may be eligible project or scheme during the previous year) as may be eligible project or scheme during the previous year) as may be prescribed.

9.5 The assessee has filed copy of The assessee has filed copy of receipts and form and forms No. 58A issued for the year under consideration and copy of bank issued for the year under consideration and copy of bank issued for the year under consideration and copy of bank

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statement, which are available on page 1 to 18 of the Paperbook. which are available on page 1 to 18 of the Paperbook. which are available on page 1 to 18 of the Paperbook. We find in the year under consideration the assessee has produced We find in the year under consideration the assessee has produced We find in the year under consideration the assessee has produced six receipts of Rs. 5,00,000/ six receipts of Rs. 5,00,000/- each issued on 3/08/2012 (PB each issued on 3/08/2012 (PB-1); 3/08/12 (PB-4); 3/8/2012 (PB 4); 3/8/2012 (PB-7); 3/08/2012 (PB-10);12/10/2012 10);12/10/2012 (PB-13) and 12/10/2012 (PB 13) and 12/10/2012 (PB-16). One such receipt One such receipt dated 12/10/2012 (PB-16) 16) and form No. 58A ( PB-17) are 17) are scanned and extracted as under:

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M/s Manthan Inc 18 ITA Nos. 2663 & 2664/M/2022 ITA Nos. 2663 & 2664/M/2022

9.6 The assessee has given donation The assessee has given donations of almost s of almost same amount consequently for three assessment years. In normal for three assessment years. In normal for three assessment years. In normal human conduct, it may not be possible conduct, it may not be possible, that the assessee will the assessee will go on giving donation without verifying verifying the activities of the Trust. I Trust. It is against the human probability. Thus, circumstantial evidences also go the human probability. Thus, circumstantial evid the human probability. Thus, circumstantial evid against the assessee. against the assessee.

9.7 In view of above discussion, we uphold the order of the Ld. In view of above discussion, we uphold the order of the Ld. In view of above discussion, we uphold the order of the Ld. CIT(A) on the issue CIT(A) on the issue-in-dispute. The grounds of appeal of the dispute. The grounds of appeal of the assessee are accordingly dismissed. assessee are accordingly dismissed.

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In the result, both the appeals of the assessee are dismissed. 12. In the result, both the appeals of the assessee are dismissed. In the result, both the appeals of the assessee are dismissed.

Order pronounced Order pronounced in the open Court/under Rule 34(4) of under Rule 34(4) of the ITAT Rules, 1963 on the ITAT Rules, 1963 on 19/01/2023. Sd/- Sd/- Sd/ (SANDEEP SINGH KARHAIL SANDEEP SINGH KARHAIL) (OM PRAKASH KANT OM PRAKASH KANT) JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER Mumbai; Dated: 19/01/2023 Rahul Sharma, Sr. P.S. Copy of the Order forwarded to Copy of the Order forwarded to : 1. The Appellant 2. The Respondent. 3. The CIT(A)- 4. CIT 5. DR, ITAT, Mumbai 6. Guard file. BY ORDER, BY ORDER, //True Copy// (Sr. Private Secretary) (Sr. Private Secretary) ITAT, Mumbai ITAT, Mumbai