Ramawtar D. Gupta-HUF, Ahmedabad V. ITO, Ward-1(2)(5), Ahmedabad

ITA 1724/AHD/2018

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 4348 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 2 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-10-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 31-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R R MAKWANA
• Assessee Lawyers: M K PATEL
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD (CONDUCTING THROUGH VIRTUAL COURT) BEFORE SHRI AMARJIT SINGH, ACCOUNTANT MEMBER & MS. MADHUMITA ROY, JUDICIAL MEMBER ITA NO.1724/AHD/2018 (ASSESSMENT YEARS: 2014-15) RAMAWTAR D GUPTA-HUF C/O HARESH ENTERPRISES, PLOT NO. 2111, PHASE-III, GIDC, NR. TRIKAMPURA BUS STOP, VATVA, AHMEDABAD-382445 VS. ITO WARD-1(2)(5) AHMEDABAD [PAN NO. AAAHG6929A] ( APPELLANT ) .. ( RESPONDENT ) APPELLANT BY : SHRI M. K. PATEL, AR RESPONDENT BY : SHRI R. R. MAKWANA , SR. DR DATE OF HEARING: 30/09/2021 DATE OF PRONOUNCEMENT: 04/10/2021 O R D E R PER MS. MADHUMITA ROY - JM: THE INSTANT APPEAL FILED BY THE ASSESSEE IS DIRECT ED AGAINST THE ORDER DATED 08.05.2018 PASSED BY THE LD. CIT(A)-10, AHMEDABAD A RISING OUT OF THE ORDER DATED 24.10.2016 PASSED BY THE ITO, WARD-1(2)(5), AHMEDAB AD UNDER SECTION 143(3) R.W.S. 147 OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERR ED AS TO THE ACT) FOR A.Y. 2014- 15. 2. THE ISSUE RELATES TO THE ADDITION OF RS. 5,00,00 0/- UNDER SECTION 35(1)(II) OF THE INCOME TAX ACT 1961 IN RESPECT TO DONATION PAID TO ONE SCHOOL OF HUMAN GENETICS & POPULATION HEALTH (SHG&PH), KOLKATA. 3. AT TIME OF HEARING OF THE INSTANT APPEAL THE LD. COUNSEL APPEARING FOR THE ASSESSEE SUBMITTED BEFORE US THAT THE ISSUE IS SQUA RELY COVERED BY THE JUDGMENT PASSED BY THE COORDINATE BENCH IN THE CASE OF KAUSTUBHBHAI DHIRAJLAL PATEL VS. DCIT IN ITA - 2 - ITA NO.1724/AHD/2018 RAMAWTAR D DUPTA- HUF V S. ITO A.Y. 2014-15 NO. 210/AHD/2019 FOR A.Y. 2014-15. A COPY WHEREOF HAS ALSO BEEN SUBMITTED BEFORE US. 4. THE LD. DR FAILED TO CONTROVERT SUCH CONTENTIONS MADE BY THE LD. AR. 5. HEARD THE PARTIES, PERUSED THE RELEVANT MATERIAL S AVAILABLE ON RECORD AND CONSIDERED THE JUDGMENT PASSED IN THE MATTER OF KAU STUBHBHAI DHIRAJLAL PATEL VS. DCIT BY THE COORDINATE BENCH IN ITA NO. 210/AHD/201 9 FOR A.Y. 2014-15. WHILE DEALING WITH THE ISSUE THE HONBLE BENCH HAS BEEN P LEASED TO OBSERVE AS FOLLOWS: 6. WE HAVE HEARD THE RESPECTIVE PARTIES AND WE HA VE ALSO PERUSED THE RELEVANT MATERIALS AVAILABLE ON RECORD. 7. UPON PERUSAL OF THE JUDICIAL PRONOUNCEMENT AS R ELIED UPON BY THE LD. COUNSEL APPEARING FOR THE ASSESSEE IT APPEARS THAT THE ISS UE IS SQUARELY COVERED IN FAVOR OF THE ASSESSEE. WHILE DEALING WITH THE ISSUE THE COORDINATE BENCH IS OBSERVED AS FOLLOWS:- 6. WE HAVE ALSO CAREFULLY CONSIDERED THE JUDGMENT PASSED BY THE LD. TRIBUNAL IN ITA NO. 2318/AHD/2017 FOR A.Y. 2014-15, THE RELEVAN T PORTION DEALING WITH THE ISSUE IS AS FOLLOWS:- 5. WE HAVE DULY CONSIDERED RIVAL CONTENTIONS AND G ONE THROUGH THE RECORD CAREFULLY. IN THE CASE OF S.G. VAT CARE P.LTD. (SU PRA), THE TRIBUNAL HAS RECORDED THE FOLLOWING FINDING: 2.IN THE FIRST GROUND OF APPEAL, THE GRIEVANCE OF THE ASSESSEE IS THAT THE LD.CIT(A) HAS ERRED IN CONFIRMING ADDITION OF RS. 8,75,000/- ON ACCOUNT OF ALLEGED BOGUS DONATION TO HERBICURE HEA LTHCARE BIO- HERBAL RESEARCH FOUNDATION. 3.BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE HA S FILED RETURN OF INCOME ON 20.11.2014 DECLARING TOTAL INCOME AT RS.4,47,91 0/-. ON SCRUTINY OF THE ACCOUNTS, IT REVEALED THAT THE ASSESSEE-COMPANY HA S GIVEN DONATION TO HERBICURE HEALTHCARE BIO-HERBAL RESEARCH FOUNDATIO N,CALCUTTA. A SURVEY ACTION WAS CARRIED OUT AT THE PREMISES OF T HE DONEE WHEREIN IT REVEALED TO THE REVENUE THAT THIS CONCERN WAS MISU SING THE BENEFIT OF NOTIFICATION ISSUED BY THE INCOME TAX DEPARTMENT. IT HAS BEEN GETTING DONATIONS FROM VARIOUS SOURCES, AND AFTER DEDUCTIN G CERTAIN AMOUNT OF COMMISSION, THESE DONATIONS WERE REFUNDED IN CASH. ON THE BASIS OF THAT SURVEY REPORT REGISTRATION GRANTED TO ITS FAVOUR W AS CANCELLED. ON THE BASIS OF THE OUTCOME OF THAT SURVEY REPORT, THE L D.AO CONSTRUED THE - 3 - ITA NO.1724/AHD/2018 RAMAWTAR D DUPTA- HUF V S. ITO A.Y. 2014-15 DONATION GIVEN BY THE ASSESSEE AS BOGUS. APPEAL TO THE LD.CIT(A) DID NOT BRING ANY RELIEF TO THE ASSESSEE. 4.BEFORE US, THE LD.COUNSEL FOR THE ASSESSEE CONTE NDED THAT DONATIONS WERE GIVEN ON 25.3.2014. AT THAT POINT O F TIME, DONEE WAS NOTIFIED AS ELIGIBLE INSTITUTION AND FALL WITHIN T HE STATUTORY ELIGIBILITY CRITERION. CERTIFICATE FOR RECEIVING D ONATION WAS CANCELLED ON 5.9.2016. THERE IS NO MECHANISM WITH THE ASSESS EE TO VERIFY WHETHER SUCH DONEE WAS A GENUINE INSTITUTE OR NOT, WHICH C AN AVAIL DONATION FROM THE SOCIETY. 5.THE LD. DR, ON THE OTHER HAND, CONTENDED THAT IN THE INVESTIGATION IT CAME TO KNOW ABOUT BOGUS AFFAIRS CONDUCTED BY THE DONEE. HENCE, THESE DONATIONS ARE RIGHTLY BEEN TREATED AS BOGUS, AND A DDITION IS RIGHTLY MADE. 6.WE HAVE DULY CONSIDERED RIVAL CONTENTIONS AND GO NE THROUGH THE RECORD CAREFULLY. THE AO IS HARPING UPON AN INFORM ATION SUPPLIED BY THE SURVEY TEM OF CALCUTTA. HE HAS NOT SPECIFIC ALLY RECORDED STATEMENT OF REPRESENTATIVES OF THE DONEE. HE HAS NOT BROUGHT ON RECORD A SPECIFIC EVIDENCE WHEREIN DONEE HAS DEPOSED THAT DONATIONS RECEIVED FROM THE ASSESSEE WAS PAID BACK IN CASH A FTER DEDUCTING COMMISSION. ON THE BASIS OF A GENERAL INFORMATION COLLECTED FROM THE DONEE, THE DONATION MADE BY THE ASSESSEE CANNOT BE DOUBTED. NEITHER REPRESENTATIVES OF THE DONEE HAVE BEEN PUT TO CROS S-EXAMINATION, NOR ANY SPECIFIC REPLY DEPOSING THAT SUCH DONATION WAS NOT RECEIVED, OR IF RECEIVED THE SAME WAS REPAID IN CASH, HAS BEEN BRO UGHT ON RECORD. IN THE ABSENCE OF SUCH CIRCUMSTANCES, DONATION GIV EN BY THE ASSESSEE TO THE DONEE, ON WHICH THE ASSESSEE NO ME CHANISM TO CHECK THE VERACITY, CAN BE DOUBTED, MORE PARTICULARLY, W HEN CERTIFICATE TO OBTAIN DONATION HAS BEEN CANCELLED AFTER TWO YEARS OF THE PAYMENT OF DONATION. IT IS FACT WHICH HAS BEEN UNEARTHED SUBS EQUENT TO THE DONATIONS. THEREFORE, THERE CANNOT BE ANY DISALLO WANCE ON THIS ISSUE. WE ALLOW THIS GROUND. 6. THERE IS NO DISPARITY ON THE FACTS. ON THE BASI S SAME SURVEY REPORT, THE GENUINENESS OF THE DONATION HAS BEEN DOUBTED IN THE CASE OF THE ASSESSEE ALSO. THEREFORE, THE ISSUE IN DISPUTE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE. RESPECTFULLY FOLLOWING THE ORDER OF THE ITAT IN THE CASE OF S.G. VAT CARE P. LTD., WE DO NOT FIND ANY MERIT IN THE APPEAL OF THE REVEN UE. IT IS DISMISSED. 7. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. FROM THE ABOVE JUDGMENTS IT APPEARS THAT THE CASE IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE AND IN THE ABSENCE OF ANY CHANGED FACTS AND CIRCUMSTANCES OF THE CASE WE FIND IT FIT TO ALLOW THE APPEAL PREFERRED BY THE ASSESSEE. THUS, ADDITION IS HEREBY DELETED. 7. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED. - 4 - ITA NO.1724/AHD/2018 RAMAWTAR D DUPTA- HUF V S. ITO A.Y. 2014-15 THUS, RESPECTFULLY RELYING UPON THE SAME WE DO NOT HESITATE TO ALLOW THE APPEAL FILED BY THE ASSESSEE BY DELETING THE DISALLOWANCE MADE BY REVENUE TO THE TUNE OF RS. 26,50,000/- RELATING TO THE CLAIM OF DONATION MADE BY THE ASSE SSEE TO SCHOOL OF HUMAN GENETICS & POPULATION HEALTH(SHG&PH). WE, THEREFORE, DELETE SUCH DISALLOWANCE MADE BY REVENUE. 6. IN THE ABSENCE OF ANY CHANGED CIRCUMSTANCES WE F IND NO REASON TO DEVIATE FROM THE STAND TAKEN BY THE COORDINATE BENCH AND RESPECT FULLY RELYING UPON THE SAME WE ALLOW THE APPEAL BY DELETING THE ADDITION MADE BY R EVENUE. ASSESSEES APPEAL IS, THUS, ALLOWED. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. THIS ORDER PRONOUNCED IN OPEN COURT ON 04/10/2021 SD/- SD/- (AMARJIT SINGH) (MS. MADHUMITA ROY) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 04/10/2021 TANMAY / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE PCIT- AHMEDABAD. 5. , ! ' , #$%% / DR, ITAT, AHMEDABAD 6. &' () / GUARD FILE. / BY ORDER, //TRUE COPY// / ( DY./ASSTT. REGISTRAR) !, #$ / ITAT, AHMEDABAD 1. DATE OF DICTATION 30.09.2021 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 30.09.2021 3. OTHER MEMBER. 4. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S 30.09.2021 5. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 6. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S. 7. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 04.10.2021 8. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK ... 9. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 10. DATE OF DESPATCH OF THE ORDER