DCIT-CC-8(1), MUMBAI , MUMBAI vs. SOPARIWALA EXPORT PRIVATE LIMITED, MUMBAI

ORDER

PER S. RIFAUR RAHMAN, AM:

Subsequently, assesse filed a rectification application u/s 154 of the Act before AO that the donation paid to SHGPH, Kolkata was only Rs.5.40 crores not Rs.15.40 crores. After verification of the application and supporting documents filed by the assesse, the AO rectified the apparent mistake in the assessment order by passing rectification order u/s 154 dt 23.08.2018. Therefore, the issue under dispute is only Rs.5.40 crores paid to the SHGPH, Kolkatta.

3. Aggrieved with the above order, assessee preferred the appeal before the CIT(A)-50, Mumbai, and the assessee has filed detailed submission before him, for the sake of brevity, we are reproducing the relevant portion of the submission below:

During the Assessment proceedings the assessee was show caused To explain why the deduction claimed by the assessee u/s 35(1)(ii) of IT. Act, 1961 Rs.26,95,00,000/- in respect of donation made Rs. 15,40,00,000/- to SHGPH Kolkata should not be disallowed, whereas the assessee given donation to said institution amount of Rs.5,40,00,000/- only and claimed deduction Rs.9.45,00,000/-. B. Addition of Rs 26,95,00,000/- u/s 35(1) cannot be made as Donation is genuine and Assessee has discharged its Onus. In view of the Explanation to Section 35(1)(ii) said addition cannot be made. C. Addition of Rs 26,95,00,000/- u/s 35(1) is made by relying on general statement D. Addition of Rs 26,95,00,000/- results in taxing the same income twice which is impermissible in Law.

3. Brief Facts of the case are as follows: (i) Assessee filed its Return of income for A.Y. 2015-16 declaring total income of Rs.54,27,77,330/- electronically on 27/11/2015. [Pg 51-86] of PaperBook (ii) The assessee company is engaged in the business as buyers, purchasers, sellers distributors, importers, exporters, traders or otherwise dealers of tobacco, tobacco leaves, beedies, cigars, cigarettes, pan masala, tobacco powder, flowers, etc.

3 DCIT, CC-8(1) Vs. Sopariwala Exports Pvt. ltd.

(iii) Assessee had debited a sum of Rs. 15.40 Crores to P &L account on account of contribution u/s. 35(l)(ii) under the head Administrative Selling, Distribution and Other expenses and on which deduction has been claimed u/s. 35(l)(ii) of the Act @ 175% which amounts to a deduction of Rs. 26.95 crores (iv) The donation in question was made to School of Human Genetics and Population Health (SHGPH), Kolkata Rs.5,40 Crores. (v) Vide order dated 15/9/2016 the Central Board of Direct Taxes (CBDT), a body of the Ministry of Finance withdrew the approval granted to SHGPH u/s. 35(1)(ii) w.e.f. 20/01/2010 le. the date from which approval u/s.35(l)(ii) had been accorded to them vide Notification No. 4/2010 dated 20/01/2010. [ Pg 87] of Paper Book (vi) As per point no. 10 of Annexure to Notice u/s. 142(1) dated 17/11/2017 issued by Ld. Assessing officer, the assessee was show caused to explain why the deduction claimed u/s. 35(l)(ii) of I.T. Act, 1961 Rs.26.95 Crores in respect of donation made Rs.15.40 Crores to. School of Human Genetics and Population Health, Kolkata should not be disallowed as the said entity was engaged in the illegitimate activity of providing entries for bogus donation u/s. 35(1)(1) of the Act through various brokers in lieu of commission,. [Pg 28-29] of Paper Book (vii) The assessee replied to the show cause vide letter dated 30/11/2017 wherein it is stated that, Assessee company has given total donation of Rs. 15.40 crores u/s 35(l)(ii) of IT. Act 1961 out of which only Rs.5.40 crores given to School of Human Genetics and Population Health and balanced donation of Rs. 10 Crores is given to Bioved Research Society. Copy of receipts received from School of Human Genetics and Population Health for Rs.5.40 Crores and Bioved Research Society for Rs. 10 Crores where furnished to the Ld. Assessing officer vide letter dated 30/11/2017. Since the Ld. Assessing officer in the show cause specifically asked regarding why the donation made to School of Human Genetics and Population Health Kolkata should not be disallowed, Assessee has given the submission related to donation given to School of Human Genetics and Population Health which is Rs.5.40 Crores. Assessee claimed the benefit of Explanation to Sec. 35(l)(i) which states that deduction shall not be denied merely on the ground that subsequent to the payment, the approval has been withdrawn. Assessee also claimed that donation given by it was genuine. [Pg 30-42] of Paper Book (viii) In Spite of furnishing above facts before Ld. Assessing officer that out of total donation made u/s 35(l)(ii) of I.T. Act, 1961 only Rs.5.40 Crores given to Human Genetics and Population Health Kolkata whose approval granted u/s 35(l)(ii) has been withdrawn vide order dated 5/9/2016 of Central Board of Direct Taxes (CBDT), a body of the Ministry of Finance. Assessing officer disallowed donation u/s 35(1) (ii) of Rs.5.40 Crores and hence addedRs.26,95,00,000/'(Rectified figure Rs.9,45,00,000/') (175% of Rs.5,40,00,000/-) added to the total income of the assessee vide order dated27.12.2016. Subsequently the Ld. Assessing Officer has rectified u/s 154 and allowed Rs. 10 Crores donation and given credit of Rs. 17.50 Crores. (ix) Against the above order, assessee has filed an appeal before your honours Ld. CIT(A)- 50. In view of the above factual matrix, it is respectfully submitted that out of total addition of Rs. 26,95,00,000/- (Rectified figure Rs.9,45,00,000/-) against donation made u/s 35(l)(ii) of Rs.5.40 Crores, Rs. 17,50,00,000/- has been subsequently deleted related to donation made to Bioved Research Society of Rs. 10 Crores which is wrongly included by Ld. Assessing officer in the name of School of Human Genetics and Population Health Kolkata and balance disallowance ofRs.9,45,00,000/- which is against donation made u/s 35(l)(ii) of Rs.5.40 Crores to School of Human Genetics 4 DCIT, CC-8(1) Vs. Sopariwala Exports Pvt. ltd. and Population Health Kolkata is not justified on following grounds which are without prejudice to one another: A. Addition of Rs 9,45,00,000/-u/s 35(l)(ii) cannot be made as Donation is genuine and Assessee has discharged its Onus. Further in view of Explanation to Section 35(l)(ii) said addition cannot be made. A1 It is respectfully submitted that Assessee exercised reasonable due diligence before giving donation and has during the course of assessment proceedings discharged its onus to show that Donation was genuine. A2 The assessee had donated the amount of Rs. 5.40 crores u/s. 35(1)(ii) to School of Human Genetics and Population Health Kolkata on 21/10/2014which is much before the withdrawal of notification i.e. 15th September, 2016 A3 SHGPH was recognized vide Gazette Notification dated 28.01.2009 issued by Central Board of Direct Taxes (CBDT in short), Ministry of Finance, Government of India u/s 35(l)(ii) of the Act. A4 SHGPH. was also recognized as a scientific industrial research organization(SIRO) by Ministry of Science & Technology, Government of India. The renewal of recognition as SIRO by the Department of Scientific and Industrial Research under the scheme of Recognition of Scientific and us trial Research Organization, 1988. At the outset, we find that the Taxation Laws (Amendment) Act, 2006 with retrospective effect from 01.04.2006 has introduced an Explanation in Section 35 of the Act which reads as under:- Section 35(1) (ii) - Explanation the deduction, to which the assessee is entitled in respect of any sum paid to a research 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 assessee, the approval granted to the association, university, college or other institution referred to in clause (ii) or clause (iii) has been withdrawn. Hence the aforesaid provision of the Act are very clear that the payer the assessee herein) would not get affected if the recognition granted to the payee has been withdrawn subsequent to the date of contribution by the assessee. Hence no disallowance u/s 35(l)(b) of the Act could be made in the instance case. A5 It is respectfully submitted that this is not a bogus donation as alleged. The donation is genuine and no commission whatsoever was paid to the person with respect to the donation. At the time of making the donation no such discrepancy came to the knowledge of the assessee company. A6 The assessee company is subject to regular assessment every year and it can be seen from the accounts that every year the assessee company has been supporting several institutions by giving donations. This is the philosophy of the group. A7 The deduction claimed is correct and should be allowed in full, in support of the claim assessee has furnished following evidences to prove that the donation given to School of Human Genetics and Population Health Kolkata was genuine: i) Name and Address of party to whom payment made u/s. 35(1)(ii) of IT Act, 1961.

5 DCIT, CC-8(1) Vs. Sopariwala Exports Pvt. ltd. ii) Request letter of School of Human Genetics and Population Health. (iii) Copy of receipts issued by the party. [Pg 39-42] of Paper Book iv) Copy of Notification for approval u/s. 35(l)(ii) of the IT. Act, 1961issued by Central Board of Direct Taxes, Department of Revenue t Ministry of Financet Govt. of India to the party to whom payment[Pg 43-45] of Paper Book (iv) Copy of certificate issued by Department of Scientific and Industrial Research Technology, Ministry of Science and Technology, Govt. of lndia for renewal of recognition of Scientific and Industrial Research Organisations (SIROs) to the party. [Pg 46] of Paper Book vi) List of parties from whom contributions received u/s. 35(1)(ii) of the I.T. Act, 1961 during A.Y. 2015-16 by the Scientific Research Organisation where the assessee's name and amount is reflected.[Pg 47] ofPaperBook vi) Copy of Pan Card of the party to whom payment made u/s. 35(10 of the IT. Act, 1961. [Pg 48] of PaperBook vii) Copy of Bank Statement as an evidence of payment made through cheque and the payment is released by bank. [Pg 49] of PaperBook ix) Copy of certificate dt. 31/10/2014 received from donee confirming the receiving of Rs. 5.40 crores from the assessee company towards contribution for Scientific Research Society. [Pg 50] of PaperBook A8 Hence, Assessee at the time of giving donation had exercised reasonable due diligence that the trust is genuine and was not aware that the trust was also engaged in alleged illegal activities. Further, the trust had legal and valid approval u/s 35(1)(1) when the donation was given. Hence, subsequent withdrawal of approval will not affect the claim of assessee u/s 35(l)(ii) in view of the Explanation. A9 In view of judicial cases, where any donation is made by an assessee to an approved institution and claimed deduction, the subsequent withdrawn of the approval of such institution would not entitle the department of disallow the deduction to the assessee A10 It is also respectfully submitted that merely on submission made by the done society during the course of their income tax proceedings, the assessee company should not be denied the benefit of deduction as on the date of donation the donor company was carrying on activities base on which recognition was given by the Income Tax authority. A11 The Ld AO relied on survey report conducted by DD1T (Inv.), Kolkata upon the institution on 27.01.2015. Pursuant to such survey, statements of various persons were recorded by the DDIT (Inv.), Kolkata. The AO has heavily relied upon the survey report as well as the statements recorded by DDIT (Inv.), Kolkata. In fact, excepting the said statement, the Ld AO has not collected any evidentiary proof against the assessee. A12 The survey report on the statements on which the AO has relied on by the AO has never parted with the assessee in spite of several verbal requests. The AO has neither parted with statements recorded at the time of issue of show cause notice nor before completion of the assessment proceedings. Hence it is a seer violation of natural justice. Donation to the institutions is made purely on the basis of the fact that the institute is established since long time and engaged in the research activity and were 6 DCIT, CC-8(1) Vs. Sopariwala Exports Pvt. ltd. also availed registration u/s 35(l)(ii) of the I.T Act. Against which the AO has not dealt at all. A13 It was explained before the AO that donation was given during the relevant assessment year during which the institute was duly approved. Therefore the subsequent withdraw of approval of such concern would not entitled the department to disallow the genuine claim of donation paid by the appellant. The AO has not discussed anything on the reply filed by the Appellant. The AO is completely guided by the survey report of DDIT (Inv) Kolkata. He has notmade any independent enquiry in this regard. A14 The Assessing Officer has not brought on record any material to suggest that Assessee has received back the money from the donee. The statement of third parties are general in nature. A15 It is respectfully submitted that Reliance on various statements of third parties etc by the revenue do not constitute conclusive proof against the assessee assailed statements are general in nature and not pertaining to the assessee. A16 Generally approval is to be granted to an institution u/s 35(1)(1) by CBDT only after strict compliance of law. The approval is granted after various level of scrutiny and checking of the institution and have track record of doing research activity. A17 The Statement of Smt. Moumita Raghavan, Treasurer of SHG&PH was recorded during survey it is clearly stated that not all donations were fraudulent . A18 The statements given by the president and the Treasurer were very general No specific statements have been given against the appellant. A19. It is further submitted that the appellant has given the donation based on the profile of the organisation and other due diligence study. All the documents mentioned were filed with AO. The AO has not conducted any examination or enquiry in this regard before arriving at the conclusion that institution was not doing any research work. It is involved only in receiving bogus donations through banks and returning cash in lieu of such receipts. A20 It is further submitted that, the allegation that the cash is refunded to the appellant after deduction by the donee remains in serious doubt. Hence a suspicion however strong it cannot form basis for disallowing any claim of the appellant until any material is brought on record. A21 The explanation to 35(l)(ii) has been introduced in the statute itself so that deduction to which the donor is entitled to in respect of any sum paid to any research association, university college or other institution to which clause (ii) applies shall not be denied merely on the ground that subsequent to the payment of such sum by the assessee, the approval granted to such association, university, college or other institution referred to in clause(ii) has been withdrawn. Even though it has been withdrawn with retrospective effect then also it cannot deny the deductions. As per the ratio of decision of Hon'ble Kolkata High Court, in the case of Jai Kumar Kankaria is relevant to the facts of present case and accordingly it is held that since the donation was effected in FY 2014-15 and the validity of such registration of the institution was not cancelled at that material point of time, hence weighted deduction of 75% cannot be denied to the donor.

7 DCIT, CC-8(1) Vs. Sopariwala Exports Pvt. ltd.

It is further decided by the Hon'ble Kolkata High Court in the case of B.P. Agarwal & Sons Ltd reported in 208ITR 863 where in it is stated that the order of withdrawal of approval cannot be given retrospective effect. A22 It can be noted that the sole basis for making the addition is on the basis ofthe statement recorded on oath during survey at SHGPH of Smt. Moumit aRaghavan treasurer and Smt. Samadrita Mukherjee Sardar other than the said statement there is no other evidence to show that the assessee has received back the donation as suggested in her general statement about providing accommodation entry. It also can be noted that she also has not stated the appellant after deducting the commission. A23 It is respectfully submitted that, statement recorded on oath during survey cannot be the sole basis of disallowance and for addition as decided by the Hon'ble Supreme Court of India in the case of C1T vs SKader Khan Son 2013352 ITR 480 (SC). A24 We respectfully state that, It can be very well observed from the withdrawal which is the basis of addition there is no direct incriminating evidence against the assessee. A25 The appellant relies on the following decisions which are same as the appellant's 1. The Kolkata Tribunal in DCIT, Circle -12(1) Vs. Maco Corporation(India) Pvt Ltd/ on 14-03-2018 was dealing with the similar fact situation. The assessee had given donation to School of Human Genetics Population Health (SHGPH) and Herbicure Healthcare Bio- Herbal Research Foundation (HHBRF) both the institutions were enjoying approval as perSec.35(l)(ii) on date of receipt of donation, on retrospective cancellation of approval donor's claim of deduction could not be denied. In both the cases also during survey u/s 133A, the donee confirmed the receipt of voluntary donation through account payee cheque and returning back of the same to the donor assessee after deducting commission of certain percentage The assessing officer denied the claim, stating that the institutions were engaged in collecting bogus donation u/s 35(l)(ii) of the Act to beneficiaries to enable them to claim weighted deduction of 175% of the amounts actually paid by such beneficiary assessee. Whereas on appeal the CIT(A) allowed the deduction and passed the order in favour of the assessee. Subsequently ITAT also passed the order in favour of the assessee and against the revenue.This was allowed for both A. Y 2013-14 and A. Y 2014-15 2. Rajda Polymers, Kolkata Vs DCIT Circle -36, Kolkatta ITA No.333/Kol/2017A.Y 2013-14 The assessee claimed deduction u/s 35(l)(ii) of the IT Act for the donation made to the Herbicure Healthcare Bio Herbal Research Foundation (fHHBRF). A survey operation took place u/s 133A of the IT Act on27.01.2015 by the Directorate of Investigation Kolkata, The modus operandi involved was that after the amount of donations as received through cheques or RTGS, the amount is routed back to the donor in cash retaining a part of the amount as commission through lays brokers, entry rators, beneficiaries of the accommodation entries.

8 DCIT, CC-8(1) Vs. Sopariwala Exports Pvt. ltd.

In this case during survey u/s 133A, the donee confirmed the receipt ofvoluntary donation through account payee cheque and returning back of the same to the donor assessee after deducting commission of certain percentage The assessing officer denied the claim, stating that the institutions were In collecting bogus donation u/s 35(l)(ii) of the AC beneficiaries to enable them to claim weighted deduction of 175% of the amounts actually paid by such beneficiary assessee. It was allowed by the Honorable IT AT. The IT AT has passed the order in favour of the assessee and against the revenue.

9 DCIT, CC-8(1) Vs. Sopariwala Exports Pvt. ltd. C. Addition of Rs 9,45,00,000/- results in taxing the same income twice which is impermissible in Law. C1 It is respectfully submitted that in the order of withdrawal of notification u/s 35(l)(ii) it is stated that SHGPH has offered entire income including income from accommodation entries for taxation before the Settlement Commissioner AY 15-16. Thus, if donation received by SHGPH has been taxed in the hands of SHGPH, same cannot be taxed in the hands of the Assessee. The Supreme Court in ITO v BachuLalKapoor Kewal Ram [1966] 60ITR 74(SC) said that "the Act does not envisage taxation of the same income twice. "This view was again reiterated by the Supreme Court in the case of Laxmipat Singhania v. C1T (1969) 72 ITR 291(SC), where it has said that it is fundamental rule of the law of taxation that unless otherwise expressly provided, income cannot be taxed twice. In C1T v Prabha Debi Bagaria (1991) 192 ITR 416 (Cal) (EC) it was held as under: "6. In this particular case, the ITO had assessed the trust in respect of income of half portion of the property in respect of which assessment was already made upon the assessee with regard to his half portion of the property. Thus, the ITO taxed twice in respect of the same income with regard to the same property in the hands of two different persons. The ITO had no jurisdiction to impose tax in respect of the same property and in respect of the same income twice.”

“1. On the facts and circumstances of the case and in law, Learned CIT(A) has erred in deleting the addition of Rs.26,95,00,000/- made by the AO which was then rectified by the AO to Rs.9,45,00,000/-) in respect of disallowance of deduction u/s. 35(1 )(ii) of the Income Tax Act, 1961 ignoring the findings during the survey action u/s 133A of Income Tax Act, 1961 which had conclusively 10 DCIT, CC-8(1) Vs. Sopariwala Exports Pvt. ltd. proved that School of Human Genetic and Population Health (SHGPH), Kolkata had been engaged in misusing the provisions of section 35(1 )(ii) of Income Tax Act, 1961.

2. On the facts and circumstances of the case and in law, Learned CIT(A) has erred in not appreciating the fact that M/s SGHPH in its application made u/s.245D(4) before the Hon'ble Settlement Commission, Kolkata has offered tax on account of income of Rs.24.19 crores earned from providing bogus donation entries and for which tax along with interest has also been paid by the School of Human Genetic and Population Health (SHGPH), Kolkata.

3. On the facts and circumstances of the case and in law, Learned CIT(A) has erred in not appreciating the fact that the approval granted u/s 35(l)(ii) to M/s. SGHPH ,Kolkata was withdrawn by the central government on finding the activities of the organization as not genuine. The appellant craves leave to amend or alter any ground and/or add new grounds which may be necessary.”

7. Considered the rival submission and material on record. We notice that the facts in the case relied by Ld. AR, which was also respectfully followed by the ld. CIT(A), are similar to facts in the present appeal i.e., the donation was given by the assessee as well as the group concern M/s Borsad Tobacco Co. Pvt. Ltd. to the SHGPH, Kolkatta, for which the registration granted to the above said institution by the revenue and subsequently withdrawn by the CBDT. The issue is, the assesse made the donation before withdrawal of registration by the CBDT. We notice that the coordinate bench has already considered the above issue and held as below:

“6. After having gone through the facts of the present case as well as considering the orders passed by revenue authorities and orders of the Coordinate Benches of ITAT as mentioned above, we find that as per the facts of the present case, admittedly, the assessee had given donation to SHGPH, which was after the date of recognition of SHGPH u/s 35(1)(ii) of the Act, but before the date of withdrawal of said approval by CBDT in the case of SHGPH. Now, the short point for consideration before us is as to whether the assessee /donar could be denied weighted deduction u/s 35(1)(ii) of the Act due to the subsequent withdrawal of recognition by CBDT with retrospective effect. We find that the issue under consideration has already been addressed /considered by the Coordinate Bench of Kolkata Tribunal in the case of DCIT vrs. Maco Corporation (I) Pvt. Ltd. in dated 14.03.18 for AY 2013-14.