Loading judgment…
No AI summary yet for this case.
Income Tax Appellate Tribunal, KOLKATA ‘SMC’ BENCH, KOLKATA
Before: DR. MANISH BORAD & SONJOY SARMA
order
: May 24th, 2023 ORDER
Per Manish Borad, Accountant Member:
This appeal filed by the assessee pertaining to the Assessment Year (in short ‘AY’) 2013-14 is directed against the order passed u/s 250 of the Income Tax Act, 1961 (in short the ‘Act’) by Commissioner of Income Tax (Appeals)-NFAC, Delhi [in short ld. ‘CIT(A)’] dated 18.12.2021 which is arising out of the I.T.A. No.: 222/KOL/2022 Assessment Year: 2013-14 Atul Kumar Jain. assessment order framed u/s 143(3)/147 of the Act dated 14.11.2016.
2. Registry has informed that the appeal filed by the assessee is time barred by 87 days. Condonation application has been filed by the assessee stating as follows: “I would most humbly and respectfully state that 1 was unable to file the aforesaid appeal within the due date i.e., within 60 days from the receipt of order of the Ld. CIT Appeal NFAC Delhi because of the following:
1. 1. Some of my family members got infected in covid during the month of February, 2022 and as a result I was not in a proper mental frame of mind to comply with the formalities of filing this appeal.
2. Now I am in a better frame of mind and have decided to file this appeal.
3. I regret the delay and inconvenience caused thereof and assure your honors that I shall comply with all formalities/directions hereafter. Therefore, I most humbly pray your honors to take cognizance of the above facts and circumstances and condone the delay of filing this appeal. Please do the needful and obliged for which I shall ever remain prayer bound and grateful.” 2.1. Considering the condonation application and the reasons stated therein, we are satisfied that the assessee was prevented for reasonable cause from filing the instant appeal within statutory time limit. We, therefore, condone the delay of 87 days and admit the appeal for adjudication on merits.
3. The assessee is in appeal before the Tribunal raising the following grounds of appeal:
1. For that the Ld. CIT Appeal (NFAC) Delhi has totally ignored the stand of the Judiciary in many cases on the similar or identical issues involved as compared to the present case and upheld the Page 2 of 6 I.T.A. No.: 222/KOL/2022 Assessment Year: 2013-14 Atul Kumar Jain. disallowance of Rs.6,12,500/- made by the AO under section 35(1)(ii) of the Income Tax Act, 1961.
For that the Ld. CIT Appeals has ignored the stand of the Jurisdictional ITAT, Kolkata, in the case of Tushar Chawda vs ITO ward 31(4), Kolkata, which is based on identical issues as that of this case in spite of the fact that the said case had been specifically cited in the submissions made to the Ld. CIT Appeal, NFAC during the First Appeal stage.
For that the Ld. AO did not consider the evidences, facts and circumstances submitted before him at the assessment stage and made the addition/ disallowances based on the information received from the investigation wing of the Income Tax Department.
For that the orders of CIT Appeal NFAC and the AO are otherwise, bad in law, unjustified and against the Law of Natural Justice.
5. For that the Assessee craves to add/alter/modify any of the above grounds at/before the time of hearing.”
4. The sole grievance of the assessee is against the disallowance of Rs. 6,12,500/- made by ld. AO u/s 35(1)(ii) of the Act on account of donation given to a concern named School of Human Genetics and Population Health (in short ‘SHGPH’).
Ld. Counsel for the assessee vehemently argued stating that it was a genuine donation given to a concern having approval u/s 35(1)(ii) of the Act and since all the conditions laid down u/s 35(1)(ii) of the Act have been complied the assessee deserves deduction claimed u/s 35(1)(ii) of the Act.
On the other hand, ld. D/R vehemently argued supporting the orders of both the lower authorities.
We have heard rival contentions and perused the records placed before us. We notice that the assessee who is a individual and is registered valuer of jewellery and ornaments declared I.T.A. No.: 222/KOL/2022 Assessment Year: 2013-14 Atul Kumar Jain. income of Rs. 22,66,090/- in return of income for AY 2013-14 filed on 08.03.2014. While computing the income the assessee has claimed deduction u/s 35(1)(ii) of the Act at Rs. 6,12,500/- for the donation of Rs. 3,50,000/- given to ‘SHGPH’ thereby claiming deduction at the rate of 175% of the said amount u/s 35(1)(ii) of the Act.
We find that recently this Tribunal in the case of Tarasafe International Private Limited & Ors. vs. DCIT in dated 07.03.2023 adjudicated the very same issue regarding the claim of donation u/s 35(1)(ii) of the Act given to the same party i.e. ‘SHGPH’ and this Tribunal has held that the claim of the said donation is bogus and because the information supplied by Pr. DIT (Inv.), Kolkata was sufficient to harbour belief that income in the shape of alleged claim of donation is bogus. Relevant finding of this Tribunal in the case of Tarasafe International Private Limited & Ors. (supra) reads as follows: “44. It is also pertinent to observe that recently Hon’ble Jurisdictional High Court has examined the issue of bogus capital gain claim made by a large number of assessees in Kolkata. This issue has been examined in the case of Swati Bajaj & Others (2022) 139 taxmann. com 352(Cal.) pronounced on 14.06.2022. A large number of assessees have claimed long-term capital gain/loss. The Income Tax Department has carried out search/survey upon different entities, which unearthed that certain companies and professionals were providing such claim in the shape of accommodation by manipulating the stocks of certain shell companies. The Hon’ble Court has made a detailed analysis of the material found during the course of search and survey on the premises of third entities and set aside the orders of the ITAT in a group of appeals by holding that such claim by the assessees for long-term capital gain was a bogus claim. The Hon’ble Court has considered the material collected by the Investigating Wing of the Department on the premises of certain companies, who were manipulating the stocks or indulging any accommodation entry Page 4 of 6 I.T.A. No.: 222/KOL/2022 Assessment Year: 2013-14 Atul Kumar Jain. business. If we apply the ratio of this judgment upon these cases, then it would reveal that the benefit of claim under section 35(1)(ii) is outcome of an organized fraud with the help of certain manipulators. Therefore, we do not find any material in the first-fold of arguments raised by the ld. Counsels for the assessees. The appellants are not entitled for deduction under section 35(1)(ii) of the Income Tax Act…………………………………………………………………………………”
Therefore, under the given facts and circumstances of the case are of the considered view that the issue raised in the instant appeal is squarely covered against the assessee by the decision of this Tribunal in the case of Tarasafe International Private Limited & Ors. (supra). We fail to find any merit in the grounds of appeal
raised by the assessee and the same are accordingly dismissed. Thus, finding of ld. CIT(A) is confirmed.