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Facts
The assessee claimed a weighted deduction of Rs. 8,75,000/- under section 35(1)(ii) of the Income Tax Act for a donation of Rs. 5,00,000/- to Shri Arvindo Institute of Applied Scientific Research Trust. The Assessing Officer reopened the assessment based on information that the trust was not involved in research and was providing bogus entries for deductions. The AO disallowed the claim, which was upheld by the CIT(A).
Held
The Tribunal held that the assessee's claim for weighted deduction under section 35(1)(ii) was not allowable as the approval for the Trust to receive donations under this section had expired on 31.03.2006, and the impugned year was A.Y. 2015-16. The Tribunal found that the allowance of the claim by the AO was an error, despite the assessee's bonafide belief.
Key Issues
Whether the assessee is eligible for weighted deduction under section 35(1)(ii) for donations made to a trust whose approval had expired, and whether the AO's allowance of such a claim was an error.
Sections Cited
147, 148, 143(3), 250(6), 35(1)(ii), 131, 263
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Income Tax Appellate Tribunal, “SMC” BENCH, AHMEDABAD
Before: DR. BRR KUMAR & MS SUCHITRA KAMBLE
[PAN No.AFWPP5467P] (Appellant) .. (Respondent) Appellant by : Adjournment Application Filed Respondent by: Shri Sudhakar Verma, Sr.DR Date of Hearing 10.03.2025 Date of Pronouncement 08.04.2025 O R D E R PER: DR. BRR KUMAR, VICE PRESIDENT:
Delay Condoned This appeal has been filed by the Assessee against the order passed by the Ld. Commissioner of Income Tax (Appeals)/National Appeal Centre vide order dated 30.09.2024 passed for the Assessment Year 2012-13.
2. The assessee has raised the following grounds of appeal:
1. The order passed by Commissioner of Income Tax (Appeals) is bad in law and on facts and is cleared violation of principal of natural justice of affording a reasonable opportunity of being heard and is in clear violation of section 250(6) of the Income tax Act. It is therefore prayed that the said order suitably modified.
2. The learned Commissioner of Income Tax (Appeals), has erred in law and on facts of the case in confirming the action of the AO in reopening the assessment u/s. 147 and issuance of notice u/s. 148 and ultimately passing an assessment order u/s. 143(3) r.w.s. 147. It is therefore prayed that impugned assessment order may please be cancelled.
3. The learned Commissioner of Income Tax (Appeals), has erred in law and on facts of the case in confirming the action of the Assessing Officer in making addition/disallowance for a sum of Rs. 8,75,000/- u/s 35(1)(ii) in respect of donation of Rs.5,00,000/- to Shri Arvindo Institute of applied scientific research. Trust Mumbai which is eligible for deduction 175% u/s 35(1)(ii) of the Act. It is prayed that the impugned additions may please be deleted being contrary to law and facts of the case.
4. The learned Commissioner of Income Tax (Appeals) has erred in law and on facts of the case in confirming the action of the Assessing Officer The learned Assessing Officer grossly erred in making the addition/disallowance by arbitrarily holding that the claim for deduction made by the assessee is not genuine without bringing on record even an iota of evidence to substantiate that allegation.
It is therefore prayed that the impugned addition may please be deleted.
5. The learned Commissioner of Income Tax (Appeals) has erred in law and on facts of the case in making the impugned addition by placing the blind reliance on the statement said to have been recorded u/s. 131 of the Income Tax Act of Shri Umesh C Nagda, without providing the appellant a copy thereof and also without providing the appellant an opportunity to cross-examine the deponent. The impugned addition has therefore been made in clear violation of the principle of natural justice and, therefore, such an addition is not sustainable in law as held in the following judicial pronouncements:
1) Andaman Timber Industries vs. Commissioner of Central Excise, Kolkatta-II, (2015) (324) ELT 624 (SC).
Kishanchand Chellaram vs. CIT (1980) AIR 2117, 1981 SCC (1)720.
Heirs and legal representatives of late Jaswantbhai S. Patel vs. CIT (2008) 174 Taxman 2006 (Guj) iv) CIT vs. Indrajitsingh Sen (2013) 33 Taxmann.com 281 (Guj) v) DCIT vs. Mahendra Ambalal Patel (2010) 40 DTR (GuJ) 243 It is therefore prayed that the impugned addition may please be deleted.
6. The learned Commissioner of Income Tax (Appeals) has erred in law and on facts of the case in confirming the action of the Assessing Officer The learned Assessing Officer grossly erred in making the impugned addition/disallowance for a sum of Rs.8,730/ on account of alleged understatement of receipts vis a vis TDS as reflected in Form 26AS ignoring the fact that the assessee had duly disclosed all the receipts in its books of account and offered the same for taxation. It is therefore prayed that the impugned addition may please be deleted.
The learned Commissioner of Income Tax (Appeals) has erred in law and on facts of the case in confirming the action of the Assessing Officer The learned Assessing Officer grossly erred in making the impugned addition/disallowance for a sum of Rs.10,16,499/- being expenses on account of sales promotion and sales commission in utter disregard to the fact that the said expenditure had been incurred wholly and exclusively for the purpose of the business of the appellant. It is therefore prayed that the impugned addition may please be deleted.
The appellant prays liberty to add/alter/modify any of the grounds at the time of hearing of the appeal.
3. The facts of the case are that assessee-company engaged in the business of manufacturing Industrial Valves. The assessee filed its Return of Income for the A.Y. 2012-13 on 23.09.2012 declaring total income of Rs.28,22,430/-. The Assessing Officer received information from the DCIT (Exemp.) 2(1), Mumbai that during the course of assessment proceedings in the case of Arvindo Institute of Applied Scientific Research Trust, the main trustee Shri Umesh. C. Nagda was summoned u/s 131 and a sworn statement was recorded. During the examination Shri Nagda had admitted in his statement that the said trust is not involved in any research activity and is also not registered u/s 35(1)(ii). The department of Scientific and Industrial Research vide their letter 12.11.2018 have confirmed that M/s Arvindo Institute of Applied Scientific Research Trust is not recognised research institution. Shri Nagda in his statement had admitted that the Trust is used for providing entries to various companies for making bogus claims u/s 35(1)(ii). The present Appellant-Assessee had paid an amount of Rs.5,00,000/- to M/s Arvindo Institute of Applied Scientific Research Trust during the year under consideration. Based on the above information the Assessing Officer reopened the case u/s 147 by recording his reasons and after obtaining approval of the competent authority issued a notice u/s 148 dated 31.03.2019. In response to the notice the Assessee-Company filed Return of Income on 18.04.2019 declaring total income of Rs.28,22,430/-. Subsequently, the Ld. AO issued notice u/s 143(2) dated 13.06.2019 along with a letter providing the reasons recorded for reopening to the assessee. Thereafter, notice u/s 142(1) dated 15.06.2019 was issued to the assessee to show cause why deduction of Rs.8,75,000/- claimed u/s 35(1)(ii), in lieu of the payment of Rs.5,00,000/- made to M/s Arvindo Institute of Applied Scientific Research Trust, should not be disallowed. No reply was received from the assessee to the said notice. The Assessing Officer issued another notice u/s 142(1) dated 08.10.2019 to furnish reply to the notice dated 15.06.2019. However, the Assessee had not furnished any reply. Thereafter, the Assessing Officer again issue notices u/s 142(1) dated 06.09.2019 and 09.10.2019. The assessee furnished a reply dated 13.10.2019. The Assessing Officer disallowed the claim of deduction u/s 35(1)(ii) of Rs.8,75,000/- and added the same as income of the assessee. Further, the Assessing Officer had found a discrepancy in the TDS as per 26AS and as disclosed in the Return of Income. The Assessing Officer added the income of undisclosed TDS of Rs.8,730/-. During the year the assessee had claimed sales promotion expenses of Rs.61,975/- and sales commission expenses of Rs.9,54,524/-. However, during the assessment proceedings the assessee had not furnished any details despite being specifically asked vide notice u/s 142(1) dated 08.10.2019, 07.11.2019 and 15.06.2019. Subsequently, the Assessing Officer completed the assessment u/s. 143(3) r.w.s. 147 of the Act on 18.11.2019, assessing the income of the assessee at Rs. 47,22,659/-, by disallowing an amount of Rs.10,16,499/- on account of unexplained sales promotion and sales commission expenses.
4. Aggrieved by the order of the Assessing Officer, the assessee preferred appeal before the Ld. CIT(A), who dismissed the appeal of the assessee by following observations:-
I have carefully examined the facts of the case, the order of the Ld. AO passed u/s 143(3) r.w.s. 147 and the grounds of appeal filed by the assessee. The grounds of appeal raised by the appellant in the appeal in form 35 are reproduced at para 2 supra. As mentioned at para 1.3 supra, the appellant has not furnished any replies to the notices of hearing issued u/s 250.
5. In ground no. 6 the appellant is claiming that opportunity of cross examination was not provided to it. The appellant is placing reliance on the judgment of the Hon'ble Supreme Court of India in the case of Andaman Timber Industries vs CCE(SC) (2015) 281 CTR 241 (2015) 127 DTR 241. In the instant case the Investigation was conducted to examine the affairs of M/s Arvindo Institute of Applied Scientific Research Trust. During the course of such investigation the Assessing Officer thereof examined the chief trustee who confessed that the said trust was providing entries to various entities for claiming bogus deduction u/s 35. The Investigation was not aimed at the appellant. The Hon'ble High Court of Calcutta in the case Swati Bajaj, Dinesh Kumar Bansal (HUF), Suraj Sahana, Tapati Sahana, Souvik Sahana, Mukta Agarwal, Babita Agarwal, Neetu Agarwal, Nand Kishore Agarwala, Rajesh Jhunjhunwala vs. Principal Commissioner of Income Tax, [(2022) 446 ITR 56 (Calcutta)] dated 14.06.2022 on the issue of cross examination has observed as under:
-Reliance was placed on the decision of the Hon'ble Division Bench of this Court in Kishanlal Agarwalla Versus Collector of Land customs. This decision was pressed into service that as long as the party charged has a fall and reasonable opportunity to see, comment and criticize the evidence, statement or record on which the charge is being made against him, the demands and the test of natural justice are satisfied and cross examination in that sense is not a technical cross examination in a Court of Law. For the same proposition reliance was placed on the decision of the Hon'ble Supreme Court in State of J&K Versus Bakshi Ghulam Mohammad & Another wherein it was held that a right of hearing cannot include a right of cross examination and the right must depend on the circumstance of each case and must also depend on the statute under which the allegations are being enquired into. Thus, by referring to the above decisions, it is submitted when the statements recorded during the investigation were not against the assessee, they are not entitled to claim any right of cross examination."
As mentioned above in the instant case the statement made by Shri Umesh. C. Nagda was not against the appellant but was only to confirm the modus operandi of M/s Arvindo Institute of Applied Scientific Research Trust. In view of the Hon'ble High Court observation cited supra the assessee does not have any right for cross-examination as claimed by it in ground no. 6.
5.1 Further, In the absence of any submission I do not find any infirmity in the order of the Assessing Officer. Accordingly, the appeal on all the grounds is dismissed.
5. At the outset we find that the issue is squarely covered by the decision of Co-ordinate Bench of the ITAT, Ahmedabad in the case of Joshi Technologies International Inc Vs. CIT in dated 07.12.2023. The relevant extract of the order is produced as below:
We have heard the rival contentions. We have perused all the documents placed before us and also carefully gone through the orders as well as the decisions referred to before us and also the relevant provision of law on the issue raised before us.
As noted above, the Ld.CIT’s finding of error in the assessment order, for exercising revisionary jurisdiction, is with respect to wrong allowance by AO of assesses claim to weighted deduction u/s 35(1)(ii) of the Act on donation made to an Institute, i.e. M/s. Shri Arvindo Institute of Applied Scientific Research Trust ,in the absence of approval to the said institute for receiving donations under the said section in the impugned year. The quantum of donation made is of Rs.70 Lakhs and the deduction claimed by the assessee and allowed by the Assessing Officer is of Rs.1,22,50,000/- i.e. @ 175% of the donation as allowed by section 35(1)(ii) of the Act.
During the course of hearing before us, the Ld.counsel for the assessee had pointed out that this claim was duly examined during assessment proceedings when the assessee had placed relevant documents proving its eligibility to the claim of and even the genuineness of the claim by furnishing documents pointing out that the donation had been made through banking channels and the donee Institute had furnished receipts and certificates issued by CBDT showing that it was approved for receiving donations u/s.35(1)(ii) of the Act. Our attention was drawn to the documents so produced to the Assessing Officer which are reproduced in the Ld.CIT’s order also at paragraph Nos.2.1 & 2.2 read as under:
“2.1 During the course of assessment proceedings, the Assessing Officer had asked for the details for the deduction u/s 35(1)(ii) of the Act at 175% claimed by the assessee. The assessee had duly submitted the copy of the receipt for payment made to the said institution. Therefore, the AO made an inquiry with the assessee in response to which the assessee has submitted the details to the AO as mentioned below: i. Assessee made payment of Rs. 70,00,000 to donee trust on 09.10.2014 ii. Payment was made by way of account payee cheque iii. Payment made was for donation towards Thalassemia Project iv. PAN of done trust was AAFTS7349D v. Trust Registration number vi. Main office vii. Registered office viii. Project for which donation is to be applied ix. Eligibility under section 35(1)(ii) of the Income Tax Act.
2.2 After necessary review of the details called for, the AO was satisfied and accordingly allowed the claim of the assessee. The donation was made in the year 2014 and the assessment was completed in the year 2018. As per the notice issued u/s 263 of the Act, the approval of the trust has already expired on 31.03.2006. Accordingly, it is possible that the fact of approval having expired was not available when the donation was made and the assessment order was passed by the AO. Just because there is no mention in the assessment order regarding the reasons for allowing the deduction, it cannot be concluded that the AO has not made necessary enquiry regarding the applicability of section 35 of the Act. While making the payment to the trust, it has issued a receipt which clearly demonstrated that the said trust is eligible for donation u/s 35(1)(ii) of the Act. The trust has also provided the following documents to the assessee regarding approval u/s 35(1)(ii) of the Act:
*Notarized copy of CBDT notification SO No. 1856(E) dated 30th October 2006 stating that Shri Arvindo Institute of Applied Scientific Research Puduchery (registration granted earlier under F. N. 0.203/107 / 2000 – ITA II) is one time registration and renewal is necessary
*Renewal letter by CBDT dated 14/05/2012 stating that validity period for exemption to trust is forever unless and until it is withdrawn and *Letter of CBDT dated 2/7 / 2012 stating that the validity of project expires on 31/3 / 2015 and is subject to further renewal.
Based on the documents submitted by the assessee, the AO was satisfied regarding the claim of the assessee and therefore, the deduction has rightly been allowed. Therefore, it was requested by the assessee to withdraw the notice issued u / s 263 of the I.T. Act, 1961.”
Based on the above facts, the arguments of the Ld. counsel for the assessee are that since the documents fairly exhibited the genuineness and the eligibility of the claim of the assessee to weighted deduction u/s.35(1)(ii) of the Act, the Assessing Officer had committed no error allowing the said claim to the assessee. The case of the assessee is that the CBDT Notification dated 30/10/2006 ,stating that the registration granted to the impugned Trust was one-time registration and the subsequent renewal letter by the CBDT Notification dated 14/05/2012 stating that the validity period for exemption to the Trust forever along with the letter of the CBDT dated 02/07/20212 stating that the validity expired on 31/03/2015 ,sufficiently exhibited the fact that the assessee was eligible to claim weighted deduction on the donation made to the Trust during the impugned year, i.e. Financial Year 2014-15 relevant to Assessment Year 2015-16. It was pointed out that the letter of the CBDT dated 02/07/2012 categorically stated that the validity of the project expired on 31/03/2015 and was subject to further renewal and, therefore, it was contended that upto 31/03/2015 all donations made to the said Institute, as per the CBDT notifications filed by the assessee to the Assessing Officer, were eligible for weighted deduction u/s.35(1)(ii) of the Act. The contention of the Ld. Counsel for the assessee is that all these notifications/ documents were given to it by the said Institute, therefore the assessee harboured a bonafide belief based on them that it was eligible to claim weighted deduction and so also the Assessing Officer believed these documents and allowed the assessee’s claim to weighted deduction u/s.35(1)(ii) of the Act. Based on these documents, the contention of the Ld.counsel for the assessee is that, there was no occasion at all to doubt these documents either by the assessee or by the Assessing Officer and, therefore, there was no occasion for making any further enquiry also. That, accordingly, the allowance of claim of weighted deduction by the Assessing Officer based on the above documents was a probable and bonafide view taken by him which could not be termed as erroneous for the purposes of exercising revisionary jurisdiction u/s.263 of the Act.
The Ld.DR, on the other hand, has pointed out that in the year 2018, the CBDT issued an Advisory to its Field Officers pointing out that the said Trust, M/s.Shri Arvindo Institute of Applied Scientific Research Trust had been granted approval u/s.35(1)(ii) of the Act only upto 31/03/2006 and that subsequently it was fraudulently receiving donations from various donors by issuing forged certificates. The relevant Instruction is reproduced hereunder:- “F.No. 225/351/2018-ITA (II) Government of India Ministry of Finance Department of Revenue
Central Board of Direct Taxes
Room N0. 245A, North Block New Delhi, the 14th December, 2018
To All Principal Chief Commissioners of Income Tax All Director Generals of Income Tax (Investigation)
Sir/Madam
Subject: Information regarding bogus donation racket under section 35(1)(ii) of Income-tax Act, 1961-reg.-
Kindly refer to the subject mentioned above.
In this connection, I am directed to state that Section 35(1)(ii) of the Income-tax Act,1961 (‘Act’) prescribes a weighted deduction @ 150% (175% before 01.04.2018) to a donor for any sum paid to an approved ‘research association having as its sole object the undertaking of scientific research or to a ‘university, college or other institution’ for carrying out scientific research. Very recently, Board has received several references from the field authorities for clarifying whether a Trust namely M/s Shri Arvindo Institute of Applied Scientific Research Trust (PAN:AAFTS7349D) (Hereinafter ‘the Trust’) having offices at Mumbai & Puducherry is an entity specified by the Central Government through a Notification for purposes of section 35(l)(ii} of the Act or not. Presently, the trust is assessed with CIT(Exemption), Mumbai.
In this regard, upon perusal of records,it emerges that the above Trust was earlier approved under section 35(1}(ii} of the Act which expired on 31.03.2006. Thereafter ,this entity, being not recognized for purpose of section 35(1)(ii) of the Act, is not eligible to raise donations for undertaking scientific research however, the Trust has raised substantial donations over the last six years on the basis of a forged certificate while the donors have irregularly claimed weighted deduction u/s. 35(1)(ii) of the Act on donations made to the Trust.
4. In view of above, I am directed to state that the pending scrutiny assessment cases of donors who have claimed irregular weighted deduction u/s 35(1)(ii) should be handled in light of above facts. In case of donors whose cases are presently not under scrutiny,the Board desires that a list of donors who had provided funds to the Trust u/s 35(1}(ii) of the Act should be drawn by CIT (Exemption}, Mumbai for the period from A.Y 2012-13 to 2018-19 and circulated to the concerned field authorities expeditiously.
I am further directed to state that while handling investigations/ enquiries in these cases, the concerned Assessing Officer should examine the specific transactions related to the sum donated and cash trail should be clearly identified. Also, various provisions pertaining to enquiry and investigation under the Act should be effectively used and assessment orders should be passed under the monitoring of supervisory authorities.
6. This issues with approval of Member (IT&C), CBDT.
Yours faithfully , (Rajarajeswari R.) Under Secretary (ITA.II)”
The case of the Revenue is that the fact of the matter is that the impugned Trust was not approved for the purposes of receiving donations u/s.35(1)(ii) of the Act after 31/03/2006 and all donations subsequently received by it were based were forged documents furnished by it. That the said Institute, not being approved for the purposes of section 35(1)(ii) of the Act., there was no question of the assessee being granted weighted deduction on donations made to it u/s.35(1)(ii) of the Act in the impugned year. And there was no doubt therefore that the allowance of claim of deduction to the assessee was an error in the assessment border.
The Ld. counsel for the assessee, in counter, has stated that this Notification was issued by the CBDT on 14/12/2018 subsequent to the allowance of assesses claim by the AO vide assessment vide order dated 20/02/2018.
On consideration of the above contentions a very important fact which emerges is that the Institute, to which donation was made by the assessee during the impugned year and weighted deduction claimed thereon u/s.35(1)(ii) of the Act, was not approved for the said purposes for the impugned year. The fact on record available with the Ld. CIT is that the approval granted to the said Institute expired on 31/03/2006. Impugned year before us is A.Y 2015-16. The Advisory issued by the CBDT in December-2018 brought this fact to the notice of all its Field Officers. Therefore, the fact on record was that the said Institute was not approved for receiving donations u/s.35(1)(ii) of the Act during the impugned year.
…..
Even if the assessee and the AO had bonafidely claimed and allowed respectively the deduction based on documents furnished by the said Institute, the fact still remains that the claim was not allowable as per law. What is material for claiming deduction is its eligibility as per law and not the intention with which it is claimed, whether bonafidely or malafidely. Even a bonafidely claimed deduction if found ineligible in law, it cannot be allowed to the assessee.
…..
The reliance placed by the Ld.counsel for the assessee on the decision of ITAT Mumbai Bench in the case of M/s.Long Life Reators LLP vs. CIT-17 (supra), also does not help the case of the assessee because it held that the assessment order was not in error noting the fact that it was only subsequently that the CBDT had issued the Advisory in 2018.But as noted by us above, the Advisory was only to the effect to point out the fact of approval to the Institute u/s 35(1)(ii) having expired in 2006 and the Institute fraudulently receiving donations thereafter by forging documents showing- subsistence of approval .This Advisory did not have the effect of withdrawing the approval granted to the Institute subsequently, but it only pointed out the fact that the approval was not inexistence after 31/03/2006 and the said Trust was subsequently receiving donations fraudulently. The subsequently issued advisory of the CBDT only reiterates the fact of donations to the said institute being ineligible for deduction to donors u/s.35(1)(ii) of the Act.
In view of the above, we have no hesitation in upholding the order of the Ld.CIT holding the assessment order erroneous for having allowed a patently ineligible claim of weighted deduction to the assessee.
In the result, the appeal of the assessee is dismissed.”
In the absence of any change in factual matrix and legal proposition brought to our notice, the appeal of the assessee is hereby dismissed.
The Order pronounced in Open Court on 08.04.2025
Sd/- Sd/- (SUCHITRA KAMBLE) (DR. BRR KUMAR) JUDICIAL MEMBER VICE PRESIDENT Ahmedabad; Dated 08.04.2025 Manish, Sr. PS TRUE COPY आदेश क� ��त�ल�प अ�े�षत/Copy of the Order forwarded to : 1. अपीलाथ� / The Appellant 2. ��यथ� / The Respondent. 3. संबं�धत आयकर आयु�त / Concerned CIT 4. आयकर आयु�त(अपील) / The CIT(A)- 5. �वभागीय ��त�न�ध, आयकर अपील!य अ�धकरण, अहमदाबाद / DR, ITAT, Ahmedabad 6. गाड' फाईल / Guard file. आदेशानुसार/ BY ORDER,