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Facts
The assessee claimed a deduction of INR 6,04,75,000 under Section 80G for donations made as part of CSR expenditure. The PCIT initiated revisionary proceedings under Section 263, holding that this claim was erroneous as CSR expenditure is not allowable under Section 37(1). The AO had previously allowed this claim after due consideration.
Held
The Tribunal held that claiming deduction under Section 80G is independent of Section 37(1) and that CSR expenditure, if made to eligible institutions under Section 80G, is allowable. The PCIT's order to revise the assessment was deemed erroneous and prejudicial to the assessee's interest.
Key Issues
Whether CSR expenditure, disallowed under Section 37(1), can be claimed as a deduction under Section 80G. Whether the PCIT's order under Section 263, based on the disallowance of Section 80G deduction, was justified.
Sections Cited
263, 143(3), 144B, 80G, 37(1), 115JB, 135
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Income Tax Appellate Tribunal, “B” BENCH MUMBAI
Before: SHRI AMIT SHUKLA & SHRI GIRISH AGRAWAL
O R D E R
PER GIRISH AGRAWAL, ACCOUNTANT MEMBER:
1. This appeal filed by assessee is against the order of Ld. PCIT, Mumbai-3, vide order no. ITBA/REV/F/REV5/2024- 25/1074485784(1) dated 13.03.2025 passed u/s. 263 of the Income- tax Act, 1961 (hereinafter referred to as the “Act”), for Assessment Year 2020-21.
Grounds taken by the assessee are reproduced as under: "Ground no. 1 to 5 - Validity of the order passed under section 263 of the Act On the facts and in the circumstances of the case and in law, the direction given by the Learned PCIT to revise the assessment order dated 23 September 2022 passed under section 143(3) r.w.s. 144B of the Act (hereinafter referred to as 'assessment order') is erroneous, illegal and bad in law on the following grounds:
Bajaj Holdings and Investment Ltd. AY 2020-21 1. The Learned PCIT erred in holding the assessment order for the captioned AY, as erroneous and prejudicial to the interest of the revenue treating the same as passed without any enquiry as per Explanation 2 to Section 263 of the Act.
2. The Learned PCIT erred in not appreciating the fact that due enquiry was made by the Learned Assessing Officer ('Learned AO') and there was due application of mind by the AO, and hence, the action of the Learned PCIT to assume jurisdiction under section 263 of the Act is bad in law.
3. The Learned PCIT erred in not appreciating the fact that Explanation 2 to section 263 of the Act, could be applied only when there was lack of enquiry, or no enquiry made by the AO. Explanation 2 to section 263 of the Act, cannot be applied when there was adequate enquiry made by the AО.
4. The Learned PCIT erred in not appreciating the fact that when two views are possible on a given issue and the Learned AO has adopted one possible view, the order passed by the AO cannot be said to be erroneous and prejudicial to the interest of revenue within the meaning of section 263 of the Act and any attempt made by the Learned PCIT to revise the assessment order would be without jurisdiction.
Without prejudice to the above, Appellant wishes to raise the following grounds on the merits of the case as under: -
Ground no. 6 to 9- Disallowance of deduction claimed under section 80G of the Act of INR 6,04,75,000
On the facts and in the circumstances of the case and in law, the learned PCIT, on the merits of the claim for deduction under section 80G, has erred in the following respects:
in directing the Assessing Officer to disallow the deduction claimed under section 80G in respect of donations made to eligible institutions shown as part of CSR contributions.
6. in not appreciating the fact that the provisions relating to disallowance of CSR expenditure have been introduced only in connection with allowability of deduction under section 37(1) of the Act, and do not apply to allowability of deduction under section 80G of the Act.
in not appreciating the fact that the provisions of section 80G [in clauses (iiihk) and (iihl)] specifically provide for disallowance of deduction only in respect of certain specific CSR contributions, viz., Swachh Bharat Kosh and Clean Ganga Fund, and thereby deduction is allowable under section 80G of the Act in respect of other CSR contributions eligible for deduction under section 80G.
in observing that no discussion on the Explanatory Notes to the Finance Bill 2014 was there in any of the decisions relied by the assessee ignoring the fact that the assessee had relied on the decision of the Mumbai Tribunal in the case of Synergia Lifestyles P Ltd wherein the Explanatory Notes had
2. The only issue raised is in respect of invoking revisionary proceedings u/s.263 and passing the order thereon on the issue relating to allowability of deduction u/s.80G in respect of contributions towards Corporate Social Responsibility (SCR).
Brief facts of the case are that assessee is a listed company and operates as an investment company registered as a non-banking financial institution (non-deposit taking) with Reserve Bank of India. Assessee filed it return of income on 14.02.2021, reporting total income at Rs.2,17,76,23,250/- under the normal provisions of the Act and book profit of Rs.3,32,16,31,273/- u/s.115JB of the Act. Assessment proceedings were completed u/s. 143(3) r.w.s. 144B assessing total income at Rs.2,20,09,37,265/-.
3.1. Subsequently, ld. PCIT on examination of the records observed that assessee had debited Rs.12,09,50,000/- on account of CSR expenditure and added the same to the total income in its computation of income as it is not allowable u/s.37(1) of the Act. However, assessee claimed 50% of this amount, i.e., 6,04,75,000/- as deduction u/s.80G which according to the ld. PCIT is not in order since it relates to CSR expenditure. According to him, ld. Assessing Officer allowed the claim of assessee u/s.80G which should not have been allowed. Accordingly, a show cause notice u/s.263 was issued, dated 21.02.2025.
3.2. Assessee made detailed submission before the ld. PCIT to contend that the issue raised in the revisionary proceedings have already been examined in the course of assessment proceedings for which specific questions were raised by the ld. Assessing Officer and elaborate Bajaj Holdings and Investment Ltd. AY 2020-21 explanations were furnished. Ld. Assessing Officer had considered the submissions and taken a plausible view of allowing the claim. Further, assessee made elaborate submissions in respect of its eligibility of claim made u/s.80G to point out that there is no embargo on making such claim as contained in section 80G though it is not permissible u/s.37(1) for which assessee had suo moto made the disallowance while computing its total income.
We have heard both the parties and perused the material on record and given our thoughtful consideration to the submissions made before us. The issue before us is no longer res integra in view of long line of decisions of co-ordinate bench, whereby it has been allowed in favour of the assessee. Some of the judicial precedents are listed below:
Sr.No. Case Law ITA No.
Worley Services India Pvt Ltd v PCIT ITA 554/Mum/2024 2. Mahansaria Enterprises (P) Ltd v PCIT 175 Taxmann.com 885 3. Naik Seafood Pvt Ltd v PCIT ITA 490/Mum/2021 4. Baiai Electrical Ltd. V. PCIT ITA 1302/Mum/2021 5. Dalai & Broacha Stock Broking (P) Ltd 175 Taxmann.com 984 vs. PCIT 6. DCIT v. Hinduja Global Solutions Ltd 1 75 Taxmann.com 411 7. DCIT v. Gabriel Ltd 173 Taxmann.com 21 9 8. MOIL V CIT 396 ITR 244 (Bombay) 9. CIT v. Sunbeam Auto Ltd 332 ITR 167 (Delhi) 10. CIT v. Nirav Modi 390 ITR 292 (Bombay) 11. CIT v. Nirav Modi 77 Taxmann.com 15 (SC) 12. Axis Securities Ltd v. PCIT 175 Taxmann.com 982 13. Aditya Birla Sun Life AMC Ltd v ACIT ITA 494/Mum/2025 14. Blue Dart Express Ltd. 1101/Mum/2024 4.1 We refer to the decision of Co-ordinate Bench of ITAT Mumbai in the case of ACIT vs. Blue Dart Express Ltd. in where the Tribunal observed as under: “9. We have heard both the parties and also perused the relevant material referred to before us. First of all from the perusal of the re-assessment order which is the subject matter of revision u/s.263 by the ld. PCIT, we find that this Bajaj Holdings and Investment Ltd. AY 2020-21 was one of the ground for reopening and ld. AO has raised specific query as noted above on exactly same issue. The assessee has given its detailed reply and after examining those replies, the ld. AO has allowed the deduction u/s.80G holding that assessee has already disallowed CSR expenses u/s.37(1), and there is no bar for claiming deduction u/s.80G unless the same is not in accordance with the provision of the Section 80G and there is no issue of mutual exclusiveness of the claim found in this regard. Ld. PCIT has not brought on record any law or judicial precedence that such an observation and finding of the ld. AO is incorrect in law. Once the ld. AO has taken a possible view and there is no contrary law, then to take a different view in a revisionary jurisdiction u/s.263, cannot be held that the order of the ld. AO is erroneous and prejudicial to the interest of the Revenue. There is no case of invoking Explanation 2 to Section 263 which ld. PCIT has done, because ld. AO has made his enquiry and verification on the same issue. Ld. PCIT cannot cancel the assessment order to re-examine the same issue without finding any defect in such order that how the claim made u/s.80G is unsustainable in law.
On merits also, we find that view of ld. AO is correct in law. Claiming a deduction from computation of business income as provided from sections 28 to 44DB is different from claiming a deduction under chapter VIA of the Act which is allowed from Total Income. As per Explanation 2 to Section 37, CSR expenditure is not allowable as deduction while computing the business income under the provision of Section 28-44DB, whereas deduction u/s.80G is allowed while computing the total income under Chapter VIA. There is no pre-condition that claim for deduction u/s.80G on a donation should be voluntary. It is independent of computation of business income as it is allowed from Gross Total Income. The assessee had disallowed the CSR expenses while computing business income. Further, there is no dispute that the assessee has filed complete details of donation and also filed the certificate u/s.80G which was enclosed before the AO. Section 80G (1) of the Act provides that in computing total income of the assessee, they shall be deducted in accordance with the provision of Section, such sum paid by the assessee in the previous year as a donation. Deduction under Chapter VIA provides deduction from the gross total income which is computed after making necessary allowances / disallowances in accordance with Section 28-44BB of the Act including Explanation to Section 37(1). Thus, Section 37(1) and Section 80G of the Act are independent and the principles governing what is not allowable u/s. 37(1) have been provided in the section itself. Even in section 80G also, what is not allowable has also been provided under the Act. For instance, Section 80G specifically mentions two clauses, viz., section 800(2)(a)(iihk) and (iiihl), i.e., contributions towards „Swacha Bharat Kosh‟ and „Clean Ganga Fund‟, where donation in the nature of CSR Expenditure is not allowable as deduction under section 80G of the Act. Therefore, the disallowances for deduction under section 80G vis-à-vis CSR can be restricted to contributions made to these Funds mentioned in Section 800(2)(a)(iiihk) and (iiihl) only. It is an undisputed fact that the assessee has not claimed any deduction against the aforesaid clauses of 80G (2)(a) of the Act and as such entire donation claimed by the assessee is allowable u/s 80G. The Ministry of Corporate Affairs ("MCA") has issued "FAQs" through General circular no. 01/2016 dated January 12, 2016 (FAQ No. 6) and has clarified on the issue as follows: "Question No. 6: What tax benefits can be availed under CSR? Answer: No specific tax exemptions have been extended to CSR expenditure per se. The Finance Act, 2014 also clarifies that expenditure on CSR does not form part of business expenditure. While no specific tax exemptions Bajaj Holdings and Investment Ltd. AY 2020-21 have been extended to expenditure incurred on CSR, spending on several activities like Prime Minister's Relief Fund, scientific research, rural development projects, skill development projects, agriculture extension projects etc, which fund place in Schedule VII, already enjoys exemptions under different sections of the Income-tax Act, 1961."
This clarification being issued by the Ministry of Corporate Affairs, Government of India clarifies that donation covered under CSR Expenses which not are eligible for the deduction under section 80G of the Income-tax Act, 1961, but are allowed under different sections. Ergo, there is nothing that if any expenditure is disallowable u/s 37 the same cannot be allowed under other provisions of Act, if the conditions of allowability are satisfied. Thus, allowing the claim of deduction u/s.80G by the ld. AO cannot be held to be unsustainable in law or amounts to erroneous and prejudicial to the interest of the Revenue. Thus order of the Ld. PCIT is reversed on this point.
Thus, we hold that ld. PCIT is not correct in law in cancelling the assessment order by the ld. AO on this issue. Accordingly, the order of the ld. PCIT is quashed. Consequently, the appeal of the assessee is allowed.
4.2. Also, in the case of ACIT vs. Sikka Ports and Terminals Ltd. in on similar issue, it was held as under:- “The assessee during the year disallowed a sum of Rs.33.85 crores under section 37 towards the CSR Spend in compliance with section 135 of the Companies Act. Since the institutions to which the said amounts are given are registered under section 80G, the assessee claimed 50 per cent i.e. Rs.16.93 crores of the same as deduction. The argument of the revenue is that the payment are made to comply with the mandate under the Companies Act, and therefore it cannot be treated as donations which are "voluntary" payments. The further argument of the revenue is that when the statute has denied the direct claim of the CSR spend under section 37, the assessee claiming the deduction indirectly under section 80G is against the intention of the legislature and cannot be allowed. The assessee's contention is that there is no restriction under section 80G to the effect that the contribution should be voluntary and that the CSR spend is an application of income which is eligible for deduction from the gross total income of the assessee as per the provisions of section 80G. Now coming to the intention of legislature while amending the provisions of section 37 whereby the CSR spend are not allowed to be claimed as a deduction under the said section. Finance (No.2) Act, 2014 brought in the amendment to section 37 by inserting Explanation 2 to the said section with effect from 1-4-2015 The "Explanatory Notes to the provisions of Finance (No.2) Act, 2014" issued by the Central Board of Direct Taxes vide its Circular No.01/2015 dated 21- 1-2015 explaining the aforesaid amendment, clarifies that the objective of CSR is to share burden of the Government in providing social services by companies having net worth/turnover/profit above a threshold and that if such expenses are allowed as tax deduction, this would result in subsidizing of around one-third of such expenses by the Government by way of tax expenditure. However, it is pertinent to note that though, the expenditure Bajaj Holdings and Investment Ltd. AY 2020-21 incurred towards CSRs is not an expenditure incurred for the purpose of business, if the spend is of the nature described in sections 30 to 36 deduction shall be allowed under those sections subject to fulfilment of conditions, specified therein. For example if the contribution is made to a scientific research association, or to a university or to a college or other institution to be used for scientific research etc., which are approved under section 35 as part of CSR spending then deduction can be allowed subject to the fulfilment of conditions prescribed under section 35. This explanatory note though self-contradictory i.e. denying deduction under section 37 but allowing the assessee to claim deduction under sections 30 to 36, also makes it clear that there is no bar regarding the admissibility of CSR expenditure under any other provision of the Act, except under section 37(1). In other words, the intention of the legislature is not to restrict the right of the assessee to claim deduction towards the CSR spend if the payment is otherwise allowable under a specific provision of the Act. Further wherever the intention is to restrict the claim of deduction under any other provisions of the Act the same is explicitly provided for to that effect by the legislature. This view is supported by the Explanatory Memorandum to Finance Bill 2015 which brought in the specific restriction for claiming deduction under section 80G towards the CSR spend towards donation to Swachh Bharat Kosh and Clean Ganga Fund. Therefore, the contention that the CSR spend being claimed as a deduction under section 80G is against the intention of the legislature which restricts the same to be claimed as a deduction under section 37 cannot be appreciated. The next issue is whether the impugned payments are otherwise eligible for deduction under section 80G. It has already been established that the payments made by the assessee are donations and therefore if the other conditions for the deduction under section 80G are fulfilled then there should not be any restriction for the assessee to claim the deduction. Before holding so the contention of the revenue that the payments made towards CSR spend are monitored and controlled by the assessee and are not voluntary is addressed. In this regard it is relevant to note that though there is a statutory obligation of CSR expenditure under section 135 of Companies Act 2013, there are many prescribed modes and activities under Schedule VII of the Companies Act for spending the CSR expenditure, (the list is not exhaustive but inclusive). Further neither section 135 of the Companies Act nor Schedule VII to the Companies Act nor the CSR Rules, mandates donations to the institutes/funds prescribed under section 80G. Therefore, there is merit in the submission of the assessee that though the quantum of CSR spend is mandatory there is no mandate on how amount is to be spent or to whom the contribution is to be made. Accordingly the act of the assessee to choose to Reliance Foundation and Shyam Kothari Foundation which are eligible to accept donations under section 80G is voluntary and is not mandated by section 135 of the Companies Act 2013. Further from the perusal of CSR Rules as applicable in assessee's case, it is noticed that the monitoring of the CSR spend is to ensure that the same is as per the CSR policy of the company and it does not provide for monitoring the utilization of the funds by the third party donees. In any case the donations made for a specific cause does not result in denial of deduction which is otherwise allowable as per the provisions of section 80G.
Bajaj Holdings and Investment Ltd. AY 2020-21 One more point that needs to be considered while deciding the deduction under section 80G for CSR spend is that the restriction on the allowability of the said spend as provided in Explanation 2 to section 37 is for computing the business income under the provision of section 28-44DB whereas the deduction under section 80G is claimed under Chapter VIA i.e. after computing the Gross Total Income. The provisions of section 80G does not impose any condition that the contribution should be voluntary and therefore when the CSR spend is evaluated independently under the provisions of the Act, it is viewed that there is no restriction for the assessee to claim deduction under section 80G provided the CSR spend meets the conditions specified therein. In other words, the provisions of section 37 is computation provision whereas section 80G is a beneficial provision which allows deduction towards payments made by the assessee for charitable purposes and therefore these two sections are independent of each other. For example, when a company which is not required to comply with the provisions of section 135 of the Companies Act 2013 makes a donation or a company makes donations in excess of 2 per cent even then the payment may get disallowed under section 37 but in that case the revenue would not impose any restriction to evaluate the payment for claiming deduction under section 80G. If the same analogy is applied to the CSR spend it is viewed that the assessee should be able to claim deduction under section 80G if the other conditions are fulfilled. Denying the claim for the reason that there is a specific mention under section 37 for disallowance and that the payments are made in compliance with section 135 of the Companies Act is not legally tenable unless there is an explicit provision for e.g. contributions towards “Swacha Bharat Kosh‟ and “Clean Ganga Fund‟. In view these discussions and considering the judicial precedence in this regard, it is viewed that there is no infirmity in the order of the Commissioner (Appeals) in allowing the deduction under section 80G to the assessee towards donations made to Reliance Foundation and Shyam Kothari Foundation. Accordingly, the grounds raised by the revenue are dismissed.”
5. Considering the facts on record where there is no dispute on making of donations by the assessee except that it has been made out of CSR fund, we find that there is no statutory bar in claiming the deduction u/s. 80G. Donations made by the assessee do not fall under specified exception and therefore assessee is entitled to deduction claimed u/s. 80G. There is no embargo in claiming such expenditure as a deduction under Chapter VI-A, including section 80G, provided the conditions stipulated therein are satisfied. Contention of the ld. CIT(A) DR that such donations lack voluntariness solely because they form part of CSR obligation is misconceived in law. The choice of recipient of such CSR donations is always with the assessee alone. As long as the Bajaj Holdings and Investment Ltd. AY 2020-21 donations are made to institutions approved under section 80G and all the requisite documentary compliances are in place, the deduction cannot be denied merely because the payment also satisfies the CSR requirement under the Companies Act. Accordingly, revisionary proceedings invoked by ld. PCIT on the premise that ld. Assessing Officer has allowed claim u/s.80G in respect of CSR expenditure should not have been allowed does not hold its fort to justify the proceedings so initiated. The revisionary order thus passed is also vitiated and does not hold good. We thus, set aside the order of ld. PCIT passed u/s.263. Grounds raised by the assessee in this respect are allowed.
In the result, appeal of the assessee is allowed.