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Income Tax Appellate Tribunal, “B”, BENCH KOLKATA
Before: SHRI S. S. GODARA, JM &DR. A.L.SAINI, AM
Per Dr. A. L. Saini: These captioned two appeals filed by the assessee, pertaining to Assessment Year 2013-14 & 2014-15, are directed against separate orders passed by the Ld. Commissioner of Income Tax (Appeals)-21, Kolkata in appeal No.10198 and 10572/ACIT, CC-4(2)/CIT(A)-21/Kol/2016-17, both dated 22.11.2017, which in turn arise out of assessment orders passed by the Assessing Officer u/s 143(3) of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’). 2.Since, the issues involved in these two appeals are common and identical; therefore, these appeals have been heard together and are being disposed of by this consolidated order. For the sake of convenience, the grounds as well as the facts narrated in Assessment Year 2013-14, have been taken into consideration for deciding the above two appeal together.
NarbheramVishram & 43/Kol/2018 Assessment Year: 2013-14 & 2014-15 3. The grievances raised by the assesseein its lead case being Assessment Year 2013-14,are as follows:
1. That, on the facts and in the circumstances of the case and evidences on records, the Ld. Commissioner of Income Tax (Appeals)-21, Kolkata erred in confirming thedisallowance of Rs.4,81,25,000 claimed by the Assessee under section 35(1)(ii) of the Income Tax Act, 1961 in respect of Donation of Rs.2,75,00,000 made to The School ofHuman Genetics and Population Health", an Institute approved by the Central Governmentvide notification no.4/2010 dated 28th January, 2009 for the purposes of sec. 35(1)(ii) of theAct read with Rule 5C and 5E of the Income Tax Rules.
That, the Ld. Commissioner of Income Tax (Appeals) erred in confirming theaforesaid disallowance of Rs.4,81,25,000 claimed by the Assessee under section 35(1)(ii) ofthe Act disregarding the unimpeachable direct evidences furnished by the Assessee butrelying on circumstantial evidences and irrelevant considerations based on suspicions,surmises and conjectures.
That, various observations and findings of the Ld. Commissioner of Income Tax(Appeals) contained in Para 05 of the impugned order to confirm the disallowance ofRs.4,81,25,000 claimed by the Assessee Firm under section 35(1)(ii) of the Act, are arbitraryand perverse, contrary to the facts and evidences on record.
4. That, the Ld. Commissioner of Income Tax (Appeals) misdirected himself in law inignoring the rule of judicial discipline by confirming the disallowance of claim under section35(1)(ii) of the Act in complete disregard of binding judgments of Hon'ble JurisdictionalKolkata Tribunal deciding the very same issue relating to claim for deduction under section35(1)(ii) of the Act on similar set of facts, in favour of the assessee.
5. That, the Ld. Commissioner of Income Tax (Appeals) erred in arbitrarily confirmingthe disallowance of Rs.66,08,861 made by the Assessing Officer under section 14A of thelncome Tax Act, 1961 read with Rule 8D of the lncome Tax Rules, 1962 without recordingmandatory satisfaction as required under law.
That, without prejudice to the Ground No.5 hereinabove, the Ld. Commissioner of Income Tax (Appeals) erred in arbitrarily confirming the disallowance of Rs.66,08,861 madeby the Assessing Officer under section 14A of the Income Tax Act, 1961 read with Rule 8D of the Income Tax Rules, 1962 without considering that the disallowance has to becomputed on the average value of those investments which yielded exempt income.
7. That, the impugned order dated 22nd November, 2017 passed under section 250 of the Income Tax Act, 1961 by the Ld. Commissioner of Income Tax (Appeals) is against lawand facts of the instant case.
Although, in this appeal, the assessee has raised a multiple grounds of appeal but at the time of hearing, the main grievance of the assessee has been confined as follows: (i) Grievance No.1 – Ground no.1 to 4 raised by the assessee in Ground No.1 to 5 raised by the assessee in ITA Page | 2
NarbheramVishram & 43/Kol/2018 Assessment Year: 2013-14 & 2014-15 No.43/Kol/2018, relate to disallowance u/s 35(1)(ii) to the tune of Rs.4,81,25,000/- and Rs.10,50,00,000/- respectively; (ii) Grievance No.2 raisied by the assessee vide Ground No.5 & 6 of Assessment Year 2013-14 relates to disallowance of Rs.66,08,861/- made by the Assessing Officer u/s 14A of the Act.
Now we shall take the Grievance No.1 of the assessee which reads as follows:
Ground no.1 to 4 raised by the assessee in Ground No.1 to 5 raised by the assessee in relate to disallowance u/s 35(1)(ii) to the tune of Rs.4,81,25,000/- and Rs.10,50,00,000/- respectively.
6.The facts of the case which can be stated quite shortly, (as per lead case in ), are as follows:
In ground No.1 to 4, the Assessee has challenged the disallowance of deduction( Weighted Deduction) ofRs.4,81,25,000/- claimed under section 35(i)(ii) of the Act, in respect of the donations ofRs.2,75,00,000/- made to ‘The School of Human Genetics and Population Health’ (hereinafterreferred to as SHG) on the alleged ground that the said donations were bogus. During the previous year relevant to the Assessment Year 2013-14, the assesseehad made donations of the aggregate sum of Rs, 4,00,50,000/- which interalia included thesum of Rs.2,75,00,000 donated to "The School of Human Genetic and Population Health”. The assessee claimed weighted deduction of Rs.4,81,25,000 being @ 175% of Rs.2,75,00,000 under section 35(1)(ii) of the Income Tax Act, 1961. During the course of assessment proceedings, the Assessing Officer asked theAssessee Firm to explain as to why the deduction of Rs.4,81,25,000/- claimed by theassessee firm under section 35(1)(ii) of the Act in respect of donation made to SHG be notdisallowed since the alleged donation of Rs.2,75,00,000/- made by the Assessee Firm to SHG was bogus. In support of the allegation made by the Assessing Officer, he furnished to the assessee (i) the order u/s 245(D)(1) of the Act passed by Hon'bleSettlement Commission in the case of SHG; (ii) the copy of the statement
NarbheramVishram & 43/Kol/2018 Assessment Year: 2013-14 & 2014-15 of Mr.Samadrita Mukherjee Sardar recorded by DDIT (Inv) Unit - 4(3), Kolkata recorded on 27th January, 2015 in course of survey u/s 133A on SHG and (iii) copy of Page No. 86 of SurveyReport of SHG.
In response, the assessee submitted beforethe AO that the donations made by the Assessee Firm were genuine and not bogus asalleged. Although the name of the assessee appeared in the list of donations received bythe said SHG as shown in the survey report, there is no evidence to show that the saidamounts of donation were bogus and that the assessee firm received back the saidamounts in cash or in any mode whatsoever against the said donations. The Statement of Smt. Samadrita Mukherjee recorded under section 131 of the Act during the course of survey on SHG has no evidentiary value whatsoever and the same cannot be relied on to be used against the assessee firm to draw any adverse inference there from. Withoutprejudice to admissibility of the said statement to be used as evidence against theassessee firm, it was submitted that the said statement did not contain any admission by Smt. Mukherjee that the donations made by the Assessee Firm to SHG was bogus and thatthe said SHG returned cash to the assessee firm in lieu of the amounts of donation received from the assessee firm. The order of the settlement commission also does not prove that the donation made by the assessee firm was bogus. The order of the Settlement Commission was only against the settlement of tax liability against the said SHG. The Assessee Firm therefore, in its reply dated 22nd March, 2016 addressed to the Assessing Officer in response to the query raised by him, made it clear to the Assessing Officer that the donation of Rs.2,75,00,000 was a genuine donation and that the assessee firm did not receive any amount whatsoever in lieu of the aforesaid donation made to SHG.The assessee firm also requested the Assessing Officer to allow the opportunity to theAssessee Firm to cross-examine the witness whose statements were recorded behind theback of the assessee firm and which statement are being relied upon by him to be used inthe assessment.
However, the assessing officer rejected the contention of the assessee and noted that the Donee Trust approached the settlement commission in order to get immunity from penalty and prosecution, seemed inevitable by its malpractices of Page | 4
NarbheramVishram & 43/Kol/2018 Assessment Year: 2013-14 & 2014-15 receiving donation on certain commission from the prospective benefitting parties who in guise of ‘Donation’ to trust, tried to evade tax arising out of undisclosed source of income. During the course of settlement proceedings the assessee not only accepted themodus operandiadopted for receiving the donation but also fully disclosed the service charges earned by the Donee trust by providing accommodation entries of Donation. In the revised income and expenditure account, instead of “donation” received, only the income towards the services charges was considered. The settlement commission while pronouncing the order stated categorically that though the object of approval granted U/s 80G or U/s 35 (1) (ii) of the Act was laudable but the trust ‘misused’ the exempt status under different provision of law. Therefore, ld AO summarily rejected the claim of the assessee and made addition to the tune of Rs.4,81,25,000/-.
9.Aggrieved by the stand so taken by the Assessing Officer, assessee carried the matter in appeal before the CIT(A) but without any success. The ld CIT(A) noted that once the recipient of the donantion, namely, M/s School of Human Genetics & Population Health has confessed that it was indulging in the modus operandi that it could avail a commission for laundering the unaccounted money of various parties including the assessee himself, the case of against the assessee is strengthened beyond the pale of any doubt. The ld CIT(A) noted that whole gamut of transaction of the donations are unnatural and highly suspicious and there the rule of Suspicious Transactions ought to apply in the assessee`s case under consideration. The CIT(A) also noted that assessee had produced papers relating to alleged donations and therefore all these papers are mere documents and not any evidence, therefore ld CIT(A) confirmed the addition made by AO to the tune of Rs.4,81,25,000/-.
Aggrieved by the order of ld CIT(A), the assessee is in further appeal before this Tribunal.
The ld. Counsel for the assessee begins by pointing out that theassessee made donation to the ‘School of Human Genetics and Population Health’ (SHG) Page | 5
NarbheramVishram & 43/Kol/2018 Assessment Year: 2013-14 & 2014-15 and M/s. Matrivani, Kolkata u/s 35(1)(ii) of the Act and is eligible to claim weighted deduction @175%. The assessee made the donation to the SHG and Matrivani, Kolkata when both the institutions were enjoying the benefit under section 35(1)(ii) of the Act, as the related certificate under section 35(1)(ii) of the Act, was effective and in force. Since both the donee organizations were enjoying the benefit of section 35(1)(ii) of the Act and the certificate was in force, therefore, the assessee is entitled to claim weighted deduction at the rate of 175%. The mere fact that subsequently the registration of the Matrivani and SHG has been cancelled by the authority, does not mean that assesseewho donated the money, would be disentitled to claim the weighted deduction u/s 35(1)(ii) of the Act. When the assessee made the donation to both the organizations, their certificate was effective and subsequent cancellation of the certificate of these organizations does not disentitle the assessee to claim the benefit u/s 35(1)(ii) of the Act.
12 On the other hand, the ld. DR for the Revenue submitted before us that registration of ‘Matrivani’ and ‘The School of HumanGenetics and Population Health’had been rescinded by the CBDT, vide Notification dated 6th September, 2016 which are reproduced below:
NarbheramVishram & 43/Kol/2018 Assessment Year: 2013-14 & 2014-15 The ld DR pointed out that since the registration had been cancelled by the CBDT, by issuing notification dated 06.09.2016 as mentioned above, therefore both the institutions viz: ‘Matrivani’ and ‘The School of HumanGenetics and Population Health’ are not entitle to claim benefit under section 35 (1) (ii) of the Act. Moreover, the notification for cancellation was issued by the CBDT with retrospective effect that is, with effect from 1st April 2007 therefore it is abundantly clear that by no stretch of imagination these institutions viz: ‘Matrivani’ and ‘The School of HumanGenetics and Population Health’ are entitled to claim benefit under section 35 (1) (ii) of the Act.
13 We have given a careful consideration to the rival submissions and perused the materials available on record, we note that the assessee has challenged disallowance of weighted deduction of Rs.4,81,25,000/- for A.Y. 2013-14 and disallowance of weighted deduction of Rs.10,50,00,000/-, for A.Y. 2014-15, claimed by him under section 35(1)(ii) of the Act in respect ofthe amounts of donations made to two Institutions viz. ‘Matrivani Institute ExperimentalResearch & Education’ (hereinafter referred to as ‘Matrivani’) and ‘The School of HumanGenetics and Population Health’ (hereinafter referred to as ‘SHG’). The Assessee Firm in A.Y. 2014-15, madedonation of Rs,2,00,00,000/ to Matrivani and Rs,4,00,00,000/ to SHG and claimed weighted deduction of Rs.10,50,00,000 under section 35(1)(ii) of the Income Tax Act, 1961, being 175% of the aggregate sum of Rs.6,00,00,000/- (Rs,2,00,00,000 + Rs,4,00,00,000) donated to these two institutes which were approved bythe Central Government for the purposes of section 35(l)(ii) of the Act read with Rule 5C and5E of the Income Tax Rules, 1962. In the assessment year 2013-14, the assessee claimed weighted deduction of Rs.4,81,25,000/- under section 35(1) (ii) of the Act, which is 175% of the amount of donation being the sum of Rs.2,75,00,000/- in respect of the donation given to ‘The School of HumanGenetics and Population Health’. We note that the Notifications to this effect, that these two institutions viz: ‘Matrivani’ and ‘SHG’, were approved by the Central Government for the purpose of section 35 (1) (ii) of the Act,was published in theGazette of India. However, the deduction claimed by the assessee was denied by the Assessing Officer on the basis of the allegations Page | 7
NarbheramVishram & 43/Kol/2018 Assessment Year: 2013-14 & 2014-15 contained in the report of the Investigation Wing of Kolkata that the said donations were bogus. The reasons stated therein, in short, were that statements of some key persons of these two donee institutions were recorded by the Investigation authority in course of survey proceedings in their cases. The said key person, in their statements, accepted to have received donations from various entities in lieu of cash returned to them after deducting commission there from.
14.We note that, during the course of hearing, before us, the ld Counsel for the assessee submitted that, the sums paid to "Matrivani' and "SHG, were genuine donations and both of the Institutions were admittedly registered under section 12A of the Income Tax Act, 1961. We note that both of the said two Institutions viz, "Matrivani" and "SHG", are Sctentific Research Association approved as such by Central Government under section 35(1)(ii) of the Income Tax Act, 1961 vide Notification, bearing No. 229/2007 (F.No.203/135/2007/ITA-II) dated 21.08.2007 and Notification No. 4/2010 (F. No. 2B/A/2009,/ITA-II dated 28.01.2010 respectively, published in Official Gazette of India. The assessee categorically denied that it ever received back the amounts of donations in cash or in kind from the said Institutions and from any person whatsoever in lieu of the various amounts donated to these two institutions. We note that in the statements, of key persons and alleged brokers recorded by the Investigation Wing in course of survey proceedings, in their cases and the extracts of which was provided to the assessee in the show cause notice, the name of the assessee firm does not appear anywhere. It is to be noted that none of those persons implicate the assessee to have made bogus donations and that cash was paid to the donors assessee in lieu of the alleged bogus donation after deducting their commission.
We note that the statements of the various parties and persons were recorded behind the back of the assessee and the Assessing Officer did not allow opportunity of cross examination. We note that in absence of opportunity of cross-examination no reliance could be made on such statements to draw any adverse inference against the assessee firm. The assessee firm denied its knowledge of the statements made by these institutes which were relied on by the Page | 8
NarbheramVishram & 43/Kol/2018 Assessment Year: 2013-14 & 2014-15 Investigation Wing and the Assessing Officer. We note that not providing the opportunity of cross-examination is against the principle of natural justice and for that we rely of the judgment of Hon’ble Delhi High Court in the case of CIT vs. Dharam Pal Prem Chand Ltd. [2007] 295 ITR 105, 108 (del).We note that on identical facts, the similar proposition wasupheld by the Coordinate Bench of Kolkata in the case of Rajda Polymers, ITA No.333/Kol/2017,for Assessment Year 2013-14 wherein it was held as follows:
“10…..Thus we note from the entire facts and circumstances, that the AO got swayed away with the statement recorded on oath of Mr. Swapan Ranjan Dasgupta during survey conducted at the premises of M/s. Herbicure. We have reproduced Question no. 22 and 23 and answers given by Shri Swapan Ranjan Dasgupta, wherein he admits to provide accommodation entries in lieu of cash. This information we should say can be the tool to start an investigation when the assessee made the claim for weighted deduction. The general statement of Shri Swapan Ranjan Dasgupta against donation made the claim of assessee for deduction suspicious. However, when the AO investigated, Shri Swapan Ranjan Dasgupta has confirmed that M/s. Herbicure was in receipt of the donation and it has not given any refund in cash, then the sole basis of disallowance of claim as a matter of fact disappeared. It should be remembered suspicion howsoever strong cannot take the place of evidence. The confirmation from Shri Swapan Ranjan Dasgupta fortifies the claim of the assessee for weighted deduction u/s. 35(1)(ii) of the Act. The sole basis of the addition/disallowance based on statement recorded on oath during survey cannot be allowed as held by Hon'ble Supreme Court in Kader Khan & sons (supra). Moreover, we note that if the AO was hell bent determined to disallow the claim of the assessee, then he should have granted an opportunity to cross examine Shri Swapan Ranjan Das Gupta and Shri KishanBhawasingka as held by Hon'ble Supreme Court in Andaman Timber (supra).
11. In the light of the aforesaid facts and circumstances, we cannot sustain the order of the authorities below. Therefore, we set aside the impugned order and direct the AO to allow the deduction of Rs.26,28,500/- u/s. 35(1)(ii) of the Act.
Now, we deal with the arguments of ld DR for the Revenue. We note that the solitary grievance of the ld DR for the Revenue is that since the registration had been cancelled by the CBDT,with retrospective effect that is, with effect from 1st April 2007, by issuing notification dated 06.09.2016, for both the institutions viz: ‘Matrivani’ and ‘The School of HumanGenetics and Population Health’, therefore these institutions are not entitled to claim benefit under section 35 (1) (ii) of the Act.
We note that the withdrawal of recognition u/s 35(1)(ii) of the Act in the hands of the payee organizations would not affect the rights and interests of the Page | 9
NarbheramVishram & 43/Kol/2018 Assessment Year: 2013-14 & 2014-15 assesseeherein for claim of weighted deduction u/s 35(1)(ii) of the Act, for that we rely on the judgmentof the Coordinate Bench, Kolkata, in the case of M/s Maco Corporation India (P) Ltd, ITA No.16/Kol/2017, for Assessment Year 2013-14, wherein it was held as follows:
“29. 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. We hold that the ratio decidendi of the aforesaid judgement of the Hon'ble Apex Court would squarely be applicable to the facts of the instant case. Infact the assessee's case herein falls on a much better footing than the facts before the Hon'ble Apex Court. In the case before Hon'ble Apex Court, the power of cancellation of registration us 12A of the Act was conferred by the Act on the ld CIT w.e.f. 1.10.2004 and the Hon'ble Apex Court held that prior to that date , no cancellation of registration could happen. But in the instant case, there is absolutely no provision for withdrawal of recognition u/s 35(1)(ii) of the Act . Hence we hold that the withdrawal of recognition u/s 35(1)(ii) of the Act in the hands of the payee organizations would not affect the rights and interests of the assessee herein for claim of weighted deduction u/s 35(1)(ii) of the Act.”
16.In view of the aforesaid findings in the facts and circumstances of the case and respectfully following the various judicial precedents relied upon hereinabove, we direct the ld AO to grant deduction u/s 35(1)(ii) of the Act, in the sum of Rs. 4,81,25,000/- for A.Y. 2013-14 and in the sum of Rs.10,50,00,000/-, for A.Y. 2014-15,as claimed by him under section 35(1)(ii) of the Act in respect ofthe amounts of donations made to two Institutions viz. ‘Matrivani Institute ExperimentalResearch & Education’ and‘The School of HumanGenetics and Population Health’. Accordingly, the Grounds 1 to 4 raised by the assessee for A.Y. 2013-14 and the Grounds 1 to 5 raised by the assessee for A.Y. 2014-15 are allowed.
Ground Nos.5 & 6 raised by the assessee in Assessment Year 2013-14 relates to disallowance of Rs.66,08,861/- made by the Assessing Officer u/s 14A of the Act.
NarbheramVishram & 43/Kol/2018 Assessment Year: 2013-14 & 2014-15 The brief facts qua the issue are that on perusal of the computation of income 18. it was observed that the assessee has disallowed expenses of Rs.20,60,327/- u/s 14A of the Act,suo moto. The Assessing officer, based on the balance sheet of the company computed the disallowance under section 14A read with Rule 8D of the Income Tax Rules, as follows:
Sl.no. Disallowance as per Rule – 8D Amount (Rs.) i) Expenditure directly related to exempt - income ii) Disallowance of interest (A×B/C) 2,649,736 iii) ½% of average value of investment 6,019,452 Total disallowance 8,669,188 i) Expenditure directly attributable - ii) Disallowance of interest (A×B/C) 2,649,736 A Amount of interest paid (after netting off) 9,395,714 B Average value of investment 1,203,890,402 Closing Balance Opening Balance Investment in equity shares 1,161,316,203 1,246,464,601 C Average total assets 4,269,881,115 Closing Balance Opening Balance Total assets 4,440,771,214 4,096,991,015 iii) ½% of average investment 6,019,452 Since the expenses disallowed u/s 14A as per computation submitted by the assessee company was only Rs.20,60,327/- whereas total disallowable expenditure u/s 14A r.w.r 8D,as derived by the AO in the above mentioned table came to Rs.86,69,188/-, the difference of disallowable expenses amounting to Rs.66,08,861/- (Rs.86,69,188- Rs.20,60,327) was disallowed and added back in the total returned income of the assessee.
On appeal by the assessee, the ld. CIT(A) confirmed the addition made by the Assessing Officer. The ld CIT(A) noted thatthe contention of the assessee firm that its issue was covered by the judgment of Jurisdictional High Court in the case of CIT vs. REI Agro Ltd. in GA 3022 of 2013 and ITAT No.161 of 2013 is not supported by the documentation filed in appeal, therefore, ld CIT(A) confirmed the addition made by assessing officer.
Aggrieved by the order of ld CIT(A), the assessee is in appeal before us.
NarbheramVishram & 43/Kol/2018 Assessment Year: 2013-14 & 2014-15 21. The ld. Counsel for the assessee has submitted before us that disallowance u/s 14A should be made only with respect to dividend bearing securities, i.e., for the purpose of disallowance only those investments which are earning exempt income should be considered. In the assessee’s case under consideration, the ld. Assessing Officer has considered under Rule 8D(2)(iii) the entire investments, that is dividend bearing investments and non-dividend bearing investments, which is not acceptable. Therefore, the AO should be directed to compute the disallowance under Rule 8D (2) (iii), only considering those investments which are earning exempt income.
On the other hand, the ld. DR for the Revenue has primarily reiterated the stand taken by the Assessing Officer which we have already noted in our earlier para and is not being repeated for the sake of brevity.
We have given a careful consideration to the rival submissions and perused the materials available on record, we note that in this ground of appeal the Assessee Firm has challenged the disallowance of Rs.66,08,861 u/s 14A of the Act. We note that coordinate Bench of Kolkata ITAT in the case of REI Agro Ltd. Vs. DCIT 144 ITD 141 (Kol-Trib) has held that it is only the investments which yields dividend during the previous year that has to be considered while adopting the average value of investments for the purpose of Rule 8D(2)(ii) & (iii) of the Rules. The aforesaid view of the Tribunal has since been affirmed as correct by the Hon’ble Calcutta High Court in G.A.No.3581 of 2013 in the appeal against the order of the Tribunal in the case of REI Agro Ltd. (supra).The assessee has submitted the details of dividend income vis a vis the value of investments in those shares. Therefore, we direct the AO to compute disallowance u/s 14A read with rule 8D, only after considering the investments which earned the exempt income. Therefore, we allow this ground for statistical purposes.
NarbheramVishram & 43/Kol/2018 Assessment Year: 2013-14 & 2014-15 24. In the result, the appeal filed by the assessee in (Ground No.5 & 6) are partly allowed for statistical purposes.
Order is pronounced in the open court on 27.07.2018.