ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-2, JAIPUR vs. M/S J.M. ENVIRO STUDIES PVT. LTD., JAIPUR

(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 of Rs.7,00,000/- 2 ACIT Vs M/s JM Enviro Studies Pvt. Ltd. treated as undisclosed expenditure for acquiring accommodation entry in the name of donation.

Rival contentions have been heard and record perused. In this case, the A.O. has declined the assessee’s claim of deduction U/s 35(1)(iii) of the Act in respect of donation of Rs. 50,00,000/- paid to M/s School of Human Genetics & Population Health, Kolkata, an institution engaged in scientific research and notified by the Central Board of Direct Taxes vide notification No. 4/2010 dated 28/01/2010. The A.O. also made addition of Rs. 7.00 lacs treated as undisclosed expenditure for acquiring accommodation entry in the name of donation to M/s School of Human Genetics & Population Health, Kolkata.

By the impugned order, the ld. CIT(A) deleted the addition by following the order of the Coordinate Bench dated 05/07/2018.

At the outset, the ld AR of the assessee placed on record the order of the Coordinate Bench wherein under similar facts and circumstances, disallowance of donation given to M/s School of Human Genetics & Population Health, Kolkata was allowed by the Tribunal after having a detailed observation in its order dated 05/7/2018.

We have considered the rival contentions and carefully gone through the orders of the authorities below as well as order of the Tribunal dated 05/07/2018 wherein under similar facts and circumstances, donation given to M/s School of Human Genetics & “7. The Bench have heard both the sides on the issues raised in appeal, perused the material available on the record and also considered the case laws relied upon. The assessee is a private limited company engaged in manufacturing of rolled steel products. Return of income was filed electronically on 26/09/2014. The assessee has claimed weighted deduction U/s 35(1) (ii) of the Act. The assessee had made donation to an institute engaged in Scientific Research. The authorities below has not allowed the deduction. The assessee had made donation of Rs.1,00,00,000/- to School of Human Genetics & Population Health, an institute engaged in scientific research and notified by the Central Board of Direct Taxes in terms of Section 35(1)(ii) of the Act vide notification No.4/2010 dated 28/01/2010. The institute, whom the donation was made was in existence and 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 4 ACIT Vs M/s JM Enviro Studies Pvt. Ltd. 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 Supreme Court has held that a procedural statute should not generally speaking be applied retrospectively, where the result would be to create new disabilities or obligations, or to impose new duties in respect of transactions already accomplished. Further, a statute which not only changes the procedure but also creates new rights and liabilities shall be continued to be prospection in operation, unless otherwise provided, either expressly or by necessary implications. Similarly in the case of CIT(Central-1), Delhi Vs Vatika Township Pvt. Ltd. (supra), the Hon'ble Supreme Court has held that the beneficial amendment which effects the public generally and where to confer such benefit appears to have been the legislators object, then the presumption would be that such a legislation, giving it a purposive construction, would warrant it to be given retrospective effect. Thus the retrospective effect can be given only for the beneficial amendments but not to put the additional burden that too on third party. Further the explanation to Section 35(1) of the Act also provides that deduction to association), university, college or other institution to which clause (ii) or clause (iii) applies, shall not be denied merely on the ground that, subsequent to the payment of such sum by the assessee, the approval granted to the association, university, college or other association, university, college or other institution, referred to in clause (ii) or clause(iii) has been withdrawn. The assessee has made donation i.e. on 13/01/2014, the institute was having a valid approval from the appropriate authorities and the assessee's claim cannot be denied. The 5 ACIT Vs M/s JM Enviro Studies Pvt. Ltd. Coordinate Bench of Kolkata ITAT in the case of M/s Maco Corporation (India) Pvt. Ltd. in ITA No. 16/Kol/2017, copy of which has been placed at page Nos. 82 to 91 of the paper book, wherein the donation was made to the same institute i.e. school of Human Genetics and Population Health, was held that in view of explanation to Section 35(1)(ii) of the Act, would not be withdrawn subsequently when recognition has been rescinded. Similarly the Coordinate Bench of Kolkata 1TAT in the case of Saimed innovation Vs. ITO in ITA No. 2231/Kol/2016 order dated 13/09/2017 has held that weighted deduction claimed U/s 35(1)(ii) of the Act cannot be denied on the basis of statement recorded during the survey and no opportunity was provided 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.

Another Coordinate Bench in the case of DCIT vs. Maco Corporation (India) Pvt. Ltd. in 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:

In our considered opinion. the CIT had no express power of cancellation of the registration certificate once granted by him to the assessee under Section 12A till 01.10.2004. It is for the reasons that, first, there was no express provision in the Act vesting the CIT with 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.

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.

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 order but it is a "quasi judicial order". It is for this reason, Section 21 has no application in this case.

The general power, under Section 21 of the General Clauses Act, to rescind a notification or order has to be understood in the light of the subject matter, context and the effect of the relevant provisions of the statute under which the notification or order is issued and the power is not available after an enforceable right has accrued under the notification or order. Moreover, Section 21 has no application to vary or amend or review a quasi-judicial order. A quasi-judicial order can be generally varied or reviewed when obtained by fraud or when such power is conferred by the Act or Rules under which it is made. (See Interpretation of Statutes, Ninth Edition by G.P. Singh page 893).

It is not in dispute that an express power was conferred on the CIT to cancel the registration for the first time by enacting sub- Section (3) in Section 12AA only with effect from 01.10.2004 by the Finance (No.2) Act 2004 (23 of 2004) and hence such 9 ACIT Vs M/s JM Enviro Studies Pvt. Ltd. power could be exercised by the CIT only on and after 01.10.2004. i.e. (assessment year 2004-2005) because the amendment in question was not retrospective but was prospective in nature.

The issue involved in this appeal had also come up for consideration before three High Courts, namely, Delhi High Court in the case of DIT (Exemptions) v. Mool Chand Khairati Ram Trust [2011] 11 taxmann.com 42/199 Taxman 1/339 ITR 622. Uttaranchal High Court in the case of Welham Boys' School Society v. CBDT 12006] 285 ITR 74/ [2007] 158 Taxman 199 and Allahabad High Court in the case of Oxford Academy for Career Development v. Chief CIT (2009] 315 1TR 382.

All the three High Courts after examining the issue, in the light of the object of Section 12A of the Act and Section 21 of the General Clauses Act held that the order of the CIT passed under Section 12A is quasi-judicial in nature. Second, there was no express provision in the Act vesting the CIT with power of cancellation of registration till 01.10.2004; and lastly, Section 21of the General Clauses Act has no application to the order passed by the CIT under Section 12A because the order is quasi-judicial in nature and it is for all these reasons the CIT had no jurisdiction to cancel the registration certificate once granted 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.

In the result, the appeal of the revenue is dismissed."

From the order of the ld. CIT(A), we found that he has considered the facts and circumstances of the instant case, which are pari materia 11 ACIT Vs M/s JM Enviro Studies Pvt. Ltd. to the decision of the Coordinate Bench in the case of M/s P.R. Rolling Mills P. ltd. Vs DCIT in ITA No. 529/JP/2018 and allowed the assessee’s claim of deduction U/s 35(1)(iii) of the Act and also deleted the addition made by the A.O. on account of alleged commission paid for obtaining entry of donation. As the facts and circumstances of the instant case are pari materia to the facts dealt with by the Tribunal in the great deal with respect to the donation given to the very same institution i.e. M/s School of Human Genetics & Population Health, Kolkata after considering the CBDT notification No. 4/2010 dated 28/01/2010. Respectfully following the order of the Coordinate Bench, we do not 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.

In the result, appeal of the revenue is dismissed.