Rajda Polymers, Kolkata V. A.C.I.T.,Circle-36, Kolkata

ITA 2414/KOL/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 7279 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-01-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2015-2016
• Appeal Filed On: 07-11-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Reopening of assessment; Bogus purchase; Principle of natural justice; Opportunity of cross examination; Bonafide belief; Retrospective amendment; Accommodation entries; Bogus
• Section: 147; 131; 143(3); 133A; 12AA; 143(1); 201; 274; 251; 208; 13; 22; 20

Judgement Text

1 ITA NO.2414/KOL/19 A.Y 2015 - 16 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA C (SMC) BENCH, KOLKATA BEFORE SHRI SATBEER SINGH GODARA, JUDICIAL MEMBER I.T.A. NO. 241 4 /KOL/20 1 9 ASSESSMENT YEAR: 20 1 5 - 2016 RAJDA PLYMERS 10 POLLOCK STREET, 4 TH FLOOR, TEA BOARD KOLKATA - 700 001 WEST BENGAL PAN: A ADFR2816C ,.... ........... ....... ..... .. .. ... ...... ... .. ........ APPELLANT - VS. - ASSTT. COMMISSIONER OF INCOME CIRCLE - 36, AAYKAR BHAWAN POORVA, 110 SHANTIPALLY, 8 TH FL., EM BYPASS, KOLKATA - 700 107. .........................................RESPONDENT APPEARANCES BY: SHRI M.D SHAH, FOR THE APPELLANT SMT. RANU BISWAS, ADDL. CIT, SR. D.R., FOR THE RESPONDEN T DATE OF CONCLUDING THE HEARING : JANUARY 2 7 , 20 20 DATE OF PRONOUNCING THE ORDER : JANUARY 31 , 20 20 O R D E R 1. THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 201 5 - 16 ARISES AGAINST THE CIT(A), 10 , KOLKATAS ORDER DATED 30 - 09 - 2019 PASSED IN CASE NO. 1107/ CIT(A) - 10 / CIR - 36/2015 - 16 INVOLVING PROCEEDINGS U/S 143(3) OF THE INCOME - TAX ACT, 1961 ( IN SHORT ACT). HEARD BOTH THE PARTIES. CASE FILE PERUSED. 2. ASSESSEES SOLE SUBSTANTIVE GRIEVANCE PLEADED IN THE INSTANT APPEAL CHALLENGES CORRECTNESS OF BOTH THE LOWER AUTHORITIES ACTION DISALLOWING U/S. 35(1)(II) DEDUCTION CLAIM OF RS. 35 LAKHS ON THE GROUND THAT THE RECIPIENT CONCERN, M/S. HERIBICURE HEALTHCARE BIO - 2 ITA NO.2414/KOL/19 A.Y 2015 - 16 HERBAL RESEARCH FOUNDATION WAS FOUND AS AN ACCOMMODATION ENTRY PROVIDER. 3. LEARNED SR. DEPARTMENTAL REPRESENTATIVE CONTENDED DURING THE COURSE OF HEARING THAT THE SAID RECIPIENT HAS INDEED ADMITTED TO HAVE BEEN PROVIDING ENTRIES TO DONOR S LIKE THE ASSESSEE. SHE SOUGHT TO REFER TO BOTH THE LOWER AUTHORITIES DETAILED DISCUSSION REJECTING THE GENUINENESS OF ASSESSEES CLAIM IN THE LIGHT OF THE HONBLE APEX COURT S LANDMARK JUDGMENTS IN THE CASES OF SUMATI DAYAL & DURGAPRASAD MORE REPORTED IN (1995) 214 ITR 801(SC) & 82 ITR 540(SC) AS WELL AS THE RECIPIENTS AUTHORISED PERSON, SHRI SWAPAN RANJAN DASGUPTAS STATEMENT DT. 27 - 01 - 2015 ADMITTING TO HAVE BEEN PROVIDING A CCOMMODATION ENTRIES TO ITS DONORS. I FIND NO MERIT IN REVENUES INSTANT REASON. THIS TRIBUNALS CO - ORDINATE BENCH DECISION IN ITA NO. 2346/KOL/2018 RAJ KARAN DASSANI DT. 8 - 5 - 2019 HAD ALREADY DEALT WITH ALL THESE ASPECTS AGAINST THE DEPARTMENT AS FOLLOWS: - 2. THE ASSESSEE IS AN INDIVIDUAL AND IS IN THE BUSINESS OF GENERAL ORDER SUPPLIER OF MACHINERY AND SPARE- PARTS. HE FILED HIS RETURN OF INCOME ON 25.03.2014 DECLARING TOTAL INCOME OF RS.5,43,7 12/ - . THE RETURN WAS PROCESSED U/S 143(1) AND LATER IT WAS REOPENED U/S 147 OF THE ACT. THE REOPENED ASSESSMENT WAS COMPLETED U/S 16.12.2016 DISALLOWING THE CLAIM FOR DEDUCTION U/S 35(1 )(II) OF THE ACT OF RS.8, 75,000/- WHICH IS 175% FROM RS.5,00,000/ - OF DONATION PAID TO M / S HERIBICURE HEALTHCARE BIO HERBAL RESEARCH FOUNDATION. 3. THE FACTS, IN BRIEF, ARE THAT M / S HERIBICURE HEALTHCARE BIO HERBAL RESEARCH FOUNDATION (HEREINAFTER REFERRED TO AS 'HHBRF') IS A NON - GOVERNMENT AND NON - PROFIT ENTITY REGIST ERED UNDER THE WEST BENGAL SOCIETIES REGISTRATION ACT, 1961. HHBRF WAS APPROVED U/S 35(1)(II) OF THE INCOME TAX ACT, 1961 AS A SCIENTIFIC RESEARCH ORGANIZATION. THE ASSESSEE MADE A DONATION OF RS.5,00,000/ - TO HHBRF I.T.A. NO. 2346/KO1L20 18 RAJ KARAN 3 ITA NO.2414/KOL/19 A.Y 2015 - 16 DASS ANI ASSESSMENT YEAR: 2013 - 14 ON 06.03.2013 BY CHEQUE NO.339348 DRAWN ON CITI BANK, KOLKATA, IN RESPONSE TO AN APPEAL FOR DONATION. THE RECIPIENT OF THE DONATION I.E. HHBRF, ISSUED A CERTIFICATE TO THE ASSESSEE ENABLING HIM TO CLAIM DEDUCTION U/S 35(1)(II) OF THE ACT. 4. THE INCOME - TAX AUTHORITIES CONDUCTED A SURVEY U/S 133A OF THE ACT ON HHBRF. A STATEMENT WAS RECORDED FROM SHRI SWAPAN RANJAN DASGUPTA, FOUNDER DIRECTOR OF HHBRF. THE REVENUE ALLEGED THAT SHRI SWAPAN RANJAN DASGUPTA ADMITTED THAT THEY HAD RECEIVED SUCH DONATION AND THEREAFTER RETURNED THESE DONATIONS IN CASH THROUGH SOME OPERATORS, TO THE DONOR, IN LIEU OF A COMMISSION. THE REVENUE ALLEGED THAT HE HAD GIVEN A LIST OF BENEFICIARIES. A STATEMENT WAS RECORDED FROM MR. KISHAN BHAWSINGHKA, ONE OF THE BROKER. IT WAS ALLEGED THAT HE ALSO CONFESSED TO THE SIMILAR MODUS OPERANDI OF RETURNING THE MONEY TAKEN AS A DONATION. FURTHER A STATEMENT WAS RECORDED FROM SMT. SUJATA GHOSH DASTIDAR, ONE OF THE RESEARCH DIRECTORS OF HH BRF. IT IS ALLEGED THAT SHE ALSO HAD ADMITTED TO THE SAME MODUS OPERANDI. AFTER REFERRING TO THE STATEMENT OF THESE THREE PERSONS, THE ASSESSING OFFICER BROUGHT OUT THE MODUS OPERANDI. AT PARA 8 & 9 HE HELD AS FOLLOWS: '8. IT IS CRYSTAL CLEAR FROM THE A BOVE DISCUSSIONS AND RELEVANT PORTIONS OF STATEMENTS OF MR. SWAPAN RANJAN DASGUPTA, FOUNDER DIRECTOR OF (HHBRF), MR. KISHAN BHAWSINGHKA, ONE OF SUCH BROKER, SMT. SUJATA GHOSH DASTIDAR, ONE OF THE DIRECTORS AND RESEARCH DIRECTOR OF M /S. HHBRF AND SHRI SHAN KER KUMAR KHETAN, ONE OF SUCH ENTRY OPERATOR THAT HHBRF HAD ACCEPTED DONATION AND ROUTED BACK THE SAME TO DONOR IN THE FORM OF BOGUS BILLING OR OTHER ACCOMMODATION ENTRIES, IN LIEU OF COMMISSION OF 8 - 10% OF THE TOTAL AMOUNT. ONE OF SUCH DONOR IS THE PRES ENT ASSESSEE I.E. SHRI RAJ KARAN DASSANI WHO HAD DONATED RS. 5,00,000 / - TO THE SAID ORGANIZATION AND CLAIMED RS.8,75,000 / - (175% OF RS. 5,00,000 / - ) AS DEDUCTION U / S 35(1)(II) OF THE ACT. IN REPLY TO THE SHOW CAUSE NOTICE DATED 01.12.2016, THE ASSESSEE DEN IED THE FACT OF THE BOGUS BILLING, WHICH IS NOT ACCEPTED IN THE CONTEXT OF STATEMENTS OF THE PERSONS MENTIONED ABOVE. 9. IN THE LIGHT OF THE ABOVE MENTIONED FACTS OF THE CASE AND ALSO CONSIDERING THE SUBMISSION OF THE ASSESSEE'S I AM OF THE OPINION THAT THE ASSESSEE HAS MADE BOGUS DONATION U/S 35( I )(II) OF THE LT ACT, MADE TO M / S HERIBICURE HEALTHCARE BIO HERBAL RESEARCH FOUNDATION 4 ITA NO.2414/KOL/19 A.Y 2015 - 16 (HHBRF) TO THE TUNE OF RS.5,00,000 / - .HENCE, THE SAME IS DISALLOWED AND ADDED BACK TO THE TOTAL INCOME OF THE ASSESSEE.' I. T.A. N O. 23461K0112018 RAJ KARAN DASSANI ASSESSMENT YEAR: 2013 - 14 5. AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN APPEAL. THE FIRST APPELLATE AUTHORITY CONSIDERED THE SUBMISSIONS OF THE ASSESSEE AS WELL AS THE FINDINGS OF THE ASSESSING OFFICER. THEREAFTER AT PARA 12 ONWARDS HE APPLIED THE THEORY OF HUMAN PROBABILITIES A ND RELIED ON THE DECISIONS OF THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. DURGA PRASAD MORE & ORS. AT PARA 13 HE HELD AS FOLLOWS: 13. IN MY OPINION THE SUSPICIOUS EVIDENCE THAT THE LD. AO HAS GATHERED CLEARLY BRING FORTH THAT THE TRANSACTION IS A D UBIOUS ONE, AND AGAINST THE RATIONAL BEHAVIO U R OF A BUSINESSMAN. NO BUSINESSMAN WOULD DONATE MORE THAN 50% OF HIS HARD EARNINGS TO ANYBODY, AND CERTAINLY LEAST TO A CAUSE THAT HAS NO PROXIMATE RELATIONSHIP WITH HIM OR WOULD BENEFIT HIM OR HER IN ANY MANN ER. RESEARCH IN THE FIELD OF HERBAL AND BIO WOULD NOT BENEFIT A BUSINESSMAN IN THE FIELD OF POLYMER AND PLASTIC GRANULES. IT IS A SETTLED PROPOSITION OF LAW THAT THE INCOME TAX LIABILITY IS TO BE ASCERTAINED ON THE BASIS OF THE MATERIAL AVAILABLE ON RECO RD, THE SURROUNDING CIRCUMSTANCES, HUMAN CONDUCT AND THE PREPONDERANCE OF PROBABILITIES. THE MATERIAL AVAILABLE ON RECORD FOR THE LD AO WERE THE STATEMENTS AND CONFESSIONS OF THE RECIPIENT OF THE DONATIONS, WHICH HAVE NOT BEEN REBUTTED BY THE APPELLANT - FI RM OR ITS PARTNERS. THE BEHAVIO U R OF THE APPELLANT IS THEREFORE TO BE MEASURED AGAINST THE NORMS OF HUMAN CONDUCT. SIMILARLY IN THE APPEAL STAGE THE APPELLANT HAS SUBMITTED CERTAIN DOCUMENTS WHICH ARE MERE SELF - SERVING RECITALS, AND THEREFORE THEY DO NOT HAVE ANY EVIDENTIARY VALUE. THEREFORE ON THE PREPONDERANCE OF PROBABILITY, I FIND THAT THE ID. A.O HAS RIGHTLY DISALLOWED THE ALLEGED DONATION AND CLAIM OF DEDUCTION THEREON AS INADMISSIBLE, AND ADDED BACK THE SAME TO THE RETURNED INCOME OF THE APPELLANT. IN VIEW OF THE ABOVE DISCUSSION, I FIND NO INFIRMITY IN THE ORDERS OF THE ID. A.O, AND I ACCORDINGLY CONFIRM THE SAME. THE GROUNDS TAKEN BY THE APPELLANT ARE DISMISSED.' RAJ KARAN DASSANI, KOLKALA VS 110, WARD - 36(1), KOLKALA ON 8 MAY, 2019 6. AGGRIEVE D, THE ASSESSEE IS IN APPEAL BEFORE US. THE ID. COUNSEL FOR THE ASSESSEE DID NOT PRESS THE GROUNDS FOR CHALLENGING THE REOPENING OF ASSESSMENT. 5 ITA NO.2414/KOL/19 A.Y 2015 - 16 HENCE THESE GROUNDS ARE DISMISSED AS NOT PRESSED. HE ONLY ARGUED GROUND NO.4 & 5. THE SUMS AND SUBSTANCE OF H IS ARGUMENT IS THAT (A) THE ORGANIZATION, HHBRF, WAS GRANTED REGISTRATION, AS A SCIENTIFIC INDUSTRIAL AND RESEARCH ORGANIZATION BY CBDT, GOVERNMENT OF INDIA, U / S 35(L)(II) UNDER THE INCOME TAX ACT, 1961 ('THE ACT'). (B) THAT THE ASSESSEE HAD DONATED THE M ONEY TO THE SAID ORGANIZATION AND AFTER OBTAINING A VALID RECEIPT AS WELL AS A CERTIFICATE FROM THE DONEE, HAD CLAIMED DEDUCTION IN ACCORDANCE WITH LAW. (C) THAT IT IS NOT WITHIN HIS CONTROL AS TO WHAT THIS ORGANIZATION, HHBRF, WOULD DO WITH THE MONEY DON ATED TO IT. (D) THAT THE REGISTRATION WAS VALID AND IN FORCE WHEN HE HAS MADE A DONATION LT.A. NO. 23461K0112018 RAJ KARAN DASSANI ASSESSMENT YEAR: 2013 - 14 AND HENCE HE IS ENTITLED TO DEDUCTION. (E) THAT NONE OF THE COPIES OF THE STATEMENTS REFERRED TO AND RELIED UPON BY THE REVENUE HAVE BEEN GIVEN/CONFRONTED TO THE ASSESSEE. (F) THAT THE ASSESSEE WAS NOT GIVEN ANY OPPORTUNITY OF CROSS - EXAMINATION OF ANY OF WITH THESE PERSONS. (G) THAT THERE IS NO PROOF THAT THE ASSESSEE HAD RECEIVED BACK THE MONEY IN QUESTION. FOR THIS PROPOSITION HE RELIED ON THE JUDGMENT OF THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF PR. CIT SURAT VS. TEJUA ROHIT KUMAR KAPADIA JUDGMENT DATED 18/0912017.HE RELIED ON THE DECISIONS OF THE KOLKATA 'B' BENCH OF THE TRIBUNAL IN THE CASE OF TUSHAR CHAWDA VS. ITO; ITA NO.23621K01L2017 ORDER DATED 23.03.2018, KOLKATA 'SMC' BENCH OF THE TRIBUNAL IN THE CASE OF SANTOSH SURESH KUMAR AGARWAL VS. ACIT; ITA NO.11621K0V20 18 ORDER DATED 05.09.2018. 7. THE ID. C OUNSEL ALSO RELIED ON THE ORDER IN THE CASE OF RAJDA POLYMERS VS. DCIT IN ITA NO.3331K01L20 17 ORDER DATED 08.11.2017, WHEREIN A DONATION OF RS.24,75,0001 - GIVEN TO HHBRF WAS CONSIDERED AND THE ISSUE WAS ADJUDICATED IN FAVOUR OF THE ASSESSEE. HE SUBMITTE D THAT IN ALL THESE CASES, THE STATEMENTS OF SHRI SWAPAN RAJAN DASGUPTA, FOUNDER MEMBER OF HHBRF WAS COMMON AND HAD BEEN EXAMINED. 8. THE ID. COUNSEL FOR THE ASSESSEE FURTHER RELIED ON THE JUDGMENT OF HON'BLE SUPREME COURT IN THE CASE OF CIT VS. CHOTAT INGRAI TEA & ORS.; (2002) 258 ITR 529 AND SUBMITTED THAT HON'BLE SUPREME COURT AND HIGH COURTS HAVE HELD THAT 'IF THE APPROVAL OF THE GOVERNMENT OF INDIA WAS IN FORCE IN THE ASSESSMENT YEAR FOR THE ORGANIZATION U/S 35(L)(II) OF THE ACT, THE DONATIONS MAD E TO THAT ORGANIZATION SHALL BE ENTITLED TO DEDUCTION IN THE HANDS OF DONOR.' 6 ITA NO.2414/KOL/19 A.Y 2015 - 16 HE RELIED ON CERTAIN OTHER CASE LAWS WHICH WE WILL REFER TO AS AND WHEN NECESSARY. 9. THE ID. DEPARTMENTAL REPRESENTATIVE, ON THE OTHER HAND, SUBMITTED THAT THE ENTIRE REGIST RATION, DONATION AND CLAIM OF DEDUCTION TO HHBRF WAS A ORGANIZED LT.A. NO. 23461K0V2018 RAJ KARAN DASSANI ASSESSMENT YEAR: 2013 - 14 RACKET OF MONEY LAUNDERING AND THIS WAS PROVED BY THE EVIDENCE COLLECTED BY THE REVENUE IN THE FORM OF NUMEROUS STATEMENTS. HE SUBMITTED THAT THE STATEMENTS OF SHRI SWAPAN RANJAN DASGUPTA, FOUNDER DIRECTOR OF HHBRF AND STATEMENT OF SMT. SUJATA GHOSH DASTIDAR, ONE OF THE DIRECTORS AND RESEARCH DIRECTORS OF HHBRF SHOWS THAT MONEY TAKEN AS DONATION WAS RETURNED TO THOSE DONORS IN CASH THROUGH BROKERS. HE ALSO REFERRED TO THE STATEMENTS OF MR. KISHAN BHAWASINGKA AND SHRI SHANKER KUMAR KHETAN, ENTRY OPERATORS AND RELIED ON THE SAME, AS EVIDENCE, IN SUPPORTING THE ADDITIONS. HE RELIED ON THE ORDER OF THE ASSESSING OFFICER AS WELL AS ID. CIT(A) AND SUBMITTED THAT HUMAN BEHAVIO U R AND PROBABILITIES HAVE TO BE CONSIDERED AND THE ADDITION IN QUESTION TO INCOME BE UPHELD. 'I MYSELF, MY WIFE SMT. SANGITA BHAWSINGHKA (HOUSE WIFE), MY SON VISHAL BHAWSINGHKA (SELF - BUSINESS), HE IS GOING TO START A FACTORY FOR POLYBEDDING BY USING RAW MATERIAL 'POLYSTER FIBRE' ETC. IN THE NAME OF 'POLYFIBER FABRICATOR', FIRM PARTER ARE MYSELF, MY SON AND BHAGWAT PRASAD AGARWAL. THE REGISTERED OFFICE OF THIS FACTORY IS SITUATE D AT 21, HEMANT BASU SARANI, 3RD FLOOR, ROOM NO. - 318, KOLKATS - 700001 AND FACTORY PREMISES HAS BEEN TAKEN ON RENT AND FACTORY ADDRESS IS AT 3/4, FORSHORE ROAD, SHALIMAR, HOWRAH - 711103. MY DAUGHTER - IN - LAW SURUCHI BHAWSINGHKA (HOUSE WIFE), ONE PROPRIETORSHIP BUSINESS 'SHREE ENTERPRISE' IS REGISTERED IN HER NAME AND NATURE OF BUSINESS OF THIS FIRM IS TRADING OF CLOTHS. I HAVE TWO BROTHERS. ONE IS VIJAY BHAWSINGHKA, HE IS ENGAGED IN BUSINESS OF TRADING IN HANDICRAFT IN LOCAL MARKET IN THE NAME OF 'VIKI EXPORT ' SITUATED AT 6, MULLICK STREET, KOLKATA - 700007 AND SECOND IS SHYAMSUNDER BHAWSINGHKA' HE IS ENGAGED IN BUSINESS OF CLOTH MERCHANTS WHICH IS SITUATED AT 196, JARNUNALAL BAZAR STREET, KOLKATA - 700007. Q.6 WHAT IS YOUR OCCUPATION? 7 ITA NO.2414/KOL/19 A.Y 2015 - 16 ANS. I AM WORKING AS A BROKER. MY OFFICE ADDRESS IS AT 7, MANGO LANE, 3RD FLOOR, ROOM NO. - 307, KOL - I AND THIS OFFICE IS CURRENTLY MANAGED & CONTROLLED BY MY PARTNER ASHOK KUMAR SUREKA. Q.7 WHAT IS YOUR SOURCE OF INCOME? I.T.A. NO. 2346/KOL/2018 RAJ KARAN D ASSANI ASSESSMENT YEAR: 2013 - 14 ANS. MY MAIN SOURCE OF INCOME IS FROM BROKERAGE FOR LAND DEALS, ARRANGING ACCOMMODATION ENTRY/JAMAKHARCHI WORK, RAISING BOGUS BILLS FOR VARIOUS BENEFICIARIES/PARTIES. I ALSO EARN RENTAL INCOME FROM SHOP SITUATED AT AVANI MALL, SHOP NO.12, 1 ST FLOOR, HOWRAH WHICH IS GIVEN ON RENT TO SREE SHOPPERS LIMITED. I ALSO HAVE SOME INTEREST INCOME. I ALSO DO INVESTMENT THROUGH DIMENSIONAL SECURITIES PV1. LTD. Q.8 ARE YOU ASSESSED TO TAX? IF YES, PLEASE STATE YOUR PAN AND JURISDICT ION. ANS. YES, I SUBMIT INCOME TAX RETURN REGULARLY AND MY PAN NUMBER IS ADDPB6929P. I AM ASSESSED WITH WARD 43(1), KOLKATA. Q.9 PLEASE PROVIDE YOUR BANK ACCOUNT DETAILS OF LAST SIX YEARS WHICH YOU HAVE/HAD. ANS. I HAVE THREE BANK ACCOUNTS: SI. NO. BANK NAME A/C NO. BRANCH 1 ING WSYA 504010047038 H.B. SARANI BANK BRANCH 2 HDFC BANK 03821570006926 G.C. AVENUE BRANCH 3 YES BANK NOT REMEMBER STEPHEN HOUSE AT PRESENT TIME BRANCH Q.10 HOW DO YOU KNOW AND ASSOCIATED WITH THE COMPANY 'HERBICURE HEALTHCARE BIO - HERBAL RESEARCH FOUNDATION' (HHBRF)? ANS. I KNOW THIS COMPANY THROUGH SOME COMMON CONTRACT FROM LAST FOUR YEARS. THEN I MET THE KEY PERSON OF THE COMPANY SRI S.R. DASGUPTA. THE, HE ASKED ME HELP IN DONATION FOR HIS COMPANY U/S 35( I )(II). I USED TO SEND HIM DONORS. THE DONORS USED TO GIVE ME R S.2000 TO 10000 PER DONATION DEPENDING ON THE QUANTUM. Q. 11. HOW MANY DONORS YOU SENT TO HHBRF? WHAT IS TOTAL QUANTUM OF DONATION DONE BY THEM AND BROKERAGE EARNED BY YOU? 8 ITA NO.2414/KOL/19 A.Y 2015 - 16 ANS. I DON'T HAVE ANY RECORD OF THE DONORS AND QUANTUM. I HAVE EARNED AROUND RS. 1 00000. Q.12 KINDLY GO THROUGH THE STATEMENT OF SHRI S.R. DASGUPTA TAKEN ON 27.01.20 15. READ QUESTION NO.23 AND THE ANSWER. OFFER YOUR COMMENT? ANS.. I HAVE GONE THROUGH THE STATEMENT. I DO NOT AGREE WITH HIS STATEMENT. I DON'T KNOW ANYTHING ABOUT IT. I HAVE INTRODUCED SOME DONORS TO THEM AND HAVE RECEIVED AROUND RS. ONE LAKH FROM DONORS. Q.13 KINDLY GO THROUGH THE STATEMENT OF SHRI MANOJ KOTHARY TAKEN ON 27.02.2015. READ QUESTION NO.22 AND THE ANSWER. OFFER YOUR COMMENT. ANS. I HAVE GONE THROUGH HI S STATEMENT. I DON'T AGREE WITH HIM. I HAVE COLLECTED MONEY RECEIPTS AND APPEAL LETTER FOR MY DONORS ONLY. Q.14 I WANT TO REMIND YOU, YOU ARE ON OATH. AS PER S.S. DASGUPTA YOU HAVE ARRANGED BOGUS DONATION AND BOGUS EXPENSES ON COMMISSION. AS PER SHRI M ANOJ KOTHARY, YOU ARE THE ONE WHO USED TO COLLECT MONEY RECEIPTS AND APPEAL LETTERS ON BEHALF OF HHBRF FROM HIS OFFICE. KINDLY OFFER YOUR COMMENT. IT.A. NO. 23461K0V2018 RAJ KARAN DASSANI ASSESSMENT YEAR: 2013 - 14 ANS. I DON'T AGREE WITH THEM. I HAVE DON E SOME WORK FOR SOME DONORS ONLY. (EMPHASIS OURS) Q15 KINDLY GO THROUGH THE DONOR LIST OF HHBRF FOR FY 20 I 0 - 11 TO 2012 - 13. IDENTIFY YOUR DONORS. ANS. SI. DONORS' NAME AMOUNT (RS.) NO. 1. YASH - MAC R E SOURCE 3,00,000/ - 2 SHREE VRAJ GLOBAL 30,00,000/ - 3 DR. ANJALI KUMAR 15,00,000/ - 4 NATHMAL NEVATIA 35,00,000/ - 5 BIPIN SHAH & ASSOCIATES RS. 93,00,001/ - 12. A PERUSAL OF THAT ABOVE STATEMENT DEMONSTRATES THAT ALL THAT MR. KISHAN STATES IS THAT, HE HAS TO INTRODUCE THE DONOR TO THE HHBRF AND RECEIVED A COMMISSION RANGING FROM RS.2000 TO 10000 PER DONATION FROM THE DONORS. HE ALSO CLEARLY STATES THAT HE DOES NOT 9 ITA NO.2414/KOL/19 A.Y 2015 - 16 AGREE WITH THE STATEMENT OF SHRI SWAPAN RANJAN DASGUPTA, FOUNDER DIRECTOR OF HHBRF, TAKEN ON OATH ON 27.01.2015 AND TO THE STATEMENT OF MR. MANOJ KOTHARI TAKEN ON 27.02.2015. HE SPECIFICALLY ANSWERED SO IN REPLY TO QUESTIONS NOS.12, 13 & 14. THIS S TATEMENT DOES NOT HELP THE REVENUE. THE STATEMENT OF SHRI SWAPAN RANJAN DASGUPTA AND MR. MANOJ KOTHARI IS NOT CORROBORATED BY MR. KISHAN BHAWASINGKA. ON THE CONTRARY HE DENIES THE ALLEGATIONS. HENCE THESE STATEMENTS ARE NOT EVIDENCE FOR THE REVENUE. 13. I NOW EXAMINE THE STATEMENT RECORDED FOR SHRI SWAPAN RANJAN DASGUPTA. IN RESPONSE TO QUESTION NO.23, HE STATES THAT BOGUS DONATIONS WERE RECEIVED BY CHEQUE AND RTGS THROUGH BANK ACCOUNTS AND THEREAFTER PAYMENTS WERE MADE TO PAPER / BOGUS COMPANIES ON ACCO UNT OF BOGUS PURCHASE ON THE ADVICE OF MR. KISHAN BHAWASINGKA AND THAT AFTER THE AMOUNT PASSES THROUGH IN 2 TO 3 LAYERS OF COMPANIES THE SAME WAS RETURNED BACK IN CASH TO THE ORIGINAL DONORS AFTER DEDUCTING COMMISSION. THE NAME OF 1. T.A. NO. 23461K0V20 18 RAJ KARAN DASSANI ASSESSMENT YEAR: 2013 - 14 THE ASSESSEE IS NOT MENTIONED IN THIS STATEMENT. HE STATES THAT THE BROKER MR. KISHAN HAS DONE THESE TRANSACTIONS. MR. KISHAN DENIED THE SAME. SO NOTHING MUCH TURNS ON THIS STATEMENTS. 14. NOW , I COME TO THE STATEMENT OF SMT. SUJATA GHOSH DASTIDAR, ONE OF THE DIRECTORS OF HHBRF. IN HER STATEMENT OF SMT. SUJATA GHOSH DASTIDAR ALLEGES THAT MR. KISHAN BHAWASINGKA WAS THE KEY MAN WHO HAS ORGANIZED THE ENTIRE OPERATION OF RECEIVING DONATION AND TH EREAFTER RETURNING CASH TO THOSE PERSONS. THIS ALLEGATION, AS ALREADY STATED, ARE DENIED BY MR. KISHAN BHAWASINGKA. IN RESPONSE TO QUESTION NO.18, SMT. DASTIDAR STATES THAT SHE HAS HEARD THAT THIS MONEY BEING RETURNED BACK WHICH SUGGEST THAT SHE DID NOT HAVE FIRST HAND KNOWLEDGE. NOW, I COME TO THE STATEMENT OF SHRI SHANKAR KUMAR KHETAN, ENTRY OPERATOR. IN THE STATEMENT OF SHRI KHETAN STATED THAT HHBRF HAD ISSUED CHEQUES TO HIM AND THAT HE HAS GIVEN BOGUS BILLS AND HE HAS RETURNED CASH FOR A COMMISSION OF 0.8%. THIS STATEMENT DOES NOT LEAD TO A CONCLUSION THAT THE MONEY WAS RETURNED IN CASH TO THE ASSESSEE. ALL THAT IT EVIDENCES IS THAT HHBRF HAD BOOKED BOGUS EXPENDITURE. 15. NOWHERE IN THE STATEMENT RECORDED, THE NAME OF THE ASSESSEE IS STATED, AND T HERE IS NO COMMENT OR EVIDENCE GIVEN AGAINST THE ASSESSEE. WHAT IS CLEAR IS THAT DONATION WAS RECEIVED BY CHEQUE 10 ITA NO.2414/KOL/19 A.Y 2015 - 16 FROM HHBRF, WHEN THE CERTIFICATE ISSUED TO IT BY CBDT WAS STILL VALID. THERE IS NO PROOF THAT THIS PARTICULAR ASSESSEE, SHRI RAJ KARAN DASSANI, HAD GOT BACK THE MONEY IN QUESTION IN CASH. ON THESE FACTS THE RATIO LAID DOWN BY THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF PR. CIT SURAT VS. TEJUA ROHIT KUMAR KAPADIA (SUPRA) APPLIES. THE ENTIRE ALLEGATIONS MADE BY SHRI SWAPAN RANJAN DASGUPTA, FOUNDE R DIRECTOR OF HHBRF IS DENIED BY SHRI KISHAN BHAWSINNGKA. NO ADDITIONS WOULD BE MADE ON SUCH STATEMENTS WHICH ARE L.T.A. NO. 2346/KOLL2018 RAJ KARAN DASSANI ASSESSMENT YEAR: 2013 - 14 NOT SUPPORTED BY CORROBORATIVE EVIDENCE. THE COPIES OF THE STATEMENTS ARE NOT FURNISHED NOR WAS THE ASSESSEE GIVEN A CHANCE OF CROSS - EXAMINATION. 16. WE NOW EXAMINE THE DECISION OF THE CO - ORDINATE BENCHES OF ITAT. THE BENCH OF THE TRIBUNAL IN THE CASE OF RAJDA POLYMERS VS. DCIT (SUPRA) HELD AS FOLLOWS: '5. WE HAVE HEARD TH E RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THE BRIEF FACTS PERTAINING TO HHBRF ARE AS UNDER: - A) HHBRF WAS REGISTERED U / S 12AA OF THE ACT BY THE ID DIT(EXEMPTIONS), KOLKATA WITH EFFECT FROM 26.12.2003. B) HHBRF WAS REGISTERED U / S 6( I)(A) OF THE FOREIGN CONTRIBUTION (REGULATION) ACT, 1976 ON 26.2.2008 VIDE REGISTRATION NO. 147120804. C) HHBRF WAS ALSO RECOGNIZED IN THE YEAR 2006 - 07 AS A SCIENTIFIC INDUSTRIAL RESEARCH ORGANIZATION (SIRO) BY MINISTRY OF SCIENCE & TECHNOLOGY, GOVE RNMENT OF INDIA. D) HHBRF WAS RECOGNIZED VIDE GAZETTE NOTIFICATION NO. 35/2008 DATED 14.3.2008 ISSUED BY THE CENTRAL BOARD OF DIRECT TAXES (CBDT IN SHORT), MINISTRY OF FINANCE, GOVERNMENT OF INDIA, U/S 35(1) (II) OF THE ACT. 5.1. WE FIND THAT THE ASSESSEE HAD EXPLAINED ABOUT ITS COMMERCIAL OBJECTIVE FOR ASSOCIATION WITH SUCH AN ACCREDITED INSTITUTION APART FROM GETTING AN IMMEDIATE TAX BENEFIT VIA WEIGHTED DEDUCTION FOR ANY DONATION MADE TO THE INSTITUTION. WE FIND THAT WHEN T HE ID AO INFORMED THE ASSESSEE THAT DIRECTOR OF HHBRF HAD GIVEN SOME STATEMENT BEFORE THE INVESTIGATION WING AS PER WHICH THE DONATION MADE BY THE ASSESSEE WAS TO BE HELD AS A BOGUS TRANSACTION AND 11 ITA NO.2414/KOL/19 A.Y 2015 - 16 ASSESSEE WOULD BE INVITED WITH CONSEQUENTIAL DISALLOWANCE THEREON, THE ASSESSEE ASKED FOR ALL THE ADVERSE MATERIALS WHICH THE ID AO PROPOSED TO RELY UPON AND ALSO SOUGHT AN OPPORTUNITY TO CROSS EXAMINE THE DIRECTORS OF HHBRF. WE FIND FROM THE PERUSAL OF THE ASSESSMENT ORDER, THAT THE ID AO HAD DENIED THE CROSS EXAMINATION AND BY PLACING RELIANCE ON THE STATEMENT GIVEN BY DIRECTORS OF HHBRF , PROCEEDED TO FRAME THE ASSESSMENT U / S 143(3) OF THE ACT IN THE HANDS OF THE ASSESSEE BY DISALLOWING THE DEDUCTION CLAIMED U / S 35(1)(II) OF THE ACT. HENCE IT COULD BE SAFELY CONCLUDED THAT THERE WAS NO CROSS EXAMINATION OF THE ADVERSE WITNESSES. 5.2. WE FIND THAT ON THE OTHER HAND, THE ASSESSEE HAD SUBMITTED ALL THE DOCUMENTS PERTAINING TO THE CLAIM OF DEDUCTION U/S 35(1 )(II) OF THE ACT BEFORE THE ID AO. THE UNDISPUTED FACT BEFORE US IS THAT THE ASSESSEE HAD PAID A SUM OF RS 14,00,0001 - VIDE CHEQUE NO. 786400 DATED 28.11.2012 DRAWN ON CANARA BANK, BRABOURNE ROAD BRANCH, KOLKATA TO HHBRF, WHICH HAS BEEN ACKNOWLEDGED VIDE LETTER DATED 6.12.2012. THIS PAYMENT OF RS 14,00,000 1 - WAS DULY REFLECTED IN THE BANK STATEMENT OF THE ASSESSEE. HENCE THE SOURCE FOR MAKING THIS PAYMENT STOOD CLEARLY EXPLAINED AND IS NOT IN DISPUTE BEFORE US. WE FIND THAT THE ENTIRE ASSESSMENT IS BASED UPON THE STATEMENT OF DIRECTORS OF HHBRF. IT IS AN UN DISPUTED FACT THAT NEITHER A COPY OF THE STATEMENT WAS SUPPLIED TO THE ASSESSEE (THE ASSESSEE WAS ASKED TO READ THE SAME IN THE PRESENCE OF THE ID AO), NOR WAS ANY OPPORTUNITY OF CROSS EXAMINATION GIVEN BY THE ID AO. IN THIS REGARD, THE RELIANCE PLACED BY THE ID AR ON THE DECISION OF THE HON'BLE APEX COURT IN THE CASE OF ANDAMAN TIMBER INDUSTRIES LTD VS COMMISSIONER OF CENTRAL EXCISE IN CIVIL APPEAL NO. 4228 OF 2006 REPORTED IN (20 \ 5) 62 TAXMAN 3 (SC) IS VERY WELL FOUNDED, WHEREIN IT WAS HELD THAT : - I. T .A. NO. 23461K01L2018 RAJ KARAN DASSANI ASSESSMENT YEAR: 2013 - 14 'ACCORDING TO US, NOT ALLOWING THE ASSESSEE TO CROSS - EXAMINE THE WITNESSES BY THE ADJUDICATING AUTHORITY THOUGH THE STATEMENTS OF THOSE WITNESSES WERE MADE THE BASIS OF THE IMPUGNED ORDER IS A SERIOUS FLAW WHICH MAKES THE ORDER NULLITY INASMUCH AS IT AMOUNTED TO VIOLATION OF PRINCIPLES OF NATURAL JUSTICE BECAUSE OF WHICH THE ASSESSEE WAS ADVERSELY AFFECTED. 5.3. WE FIND THAT SIMILAR VIEWS WERE TAKEN IN THE FOLLOWING DECISIONS : - A) DECIS ION OF HON'BLE BOMBAY HIGH COURT IN THE CASE OFH R MEHTA VS CIT REPORTED IN 387 ITR 561 (BORN) 12 ITA NO.2414/KOL/19 A.Y 2015 - 16 B) DECISION OF HON'BLE DELHI HIGH COURT IN THE CASE OFCIT VS ASHWANI GUPTA REPORTED IN 322 ITR 396 (DEL) C) DECISION OF HON'BLE DELHI HIGH COURT IN THE CASE OFCIT VS SMC CHARE BROKERS LTD REPORTED IN 288 ITR 345 (DEL) D) DECISION OF HON'BLE SUPREME COURT IN THE CASE OF PRAKASH CHAND NAHTA VS UNION OF INDIA REPORTED IN 247 ITR 274 (SC) E) DECISION OF HON'BLE JURISDICTIONAL HI GH COURT IN THE CASE OF CIT VS EASTERN COMMERCIAL ENTERPRISESREPORTED IN 210 ITR 103 (CA I) F) DECISION OF HON'BLE KERALA HIGH COURT IN THE CASE OF P.S.ABDUL MAJEED VS AGRICULTURAL INCOME TAX & SALES TAX OFFICER & ORS REPORTED IN 209 ITR 821 (KER) 5.4. WE FIND THAT THE ID AO DID NOT PROVIDE THE MATERIAL RATHER HE MERELY ALLOWED THE ASSESSEE TO READ THE STATEMENT. THIS, IN OUR CONSIDERED OPINION, WAS NOT JUSTIFIED. THE ASSESSEE CANNOT BE EXPECTED TO GIVE REPLY TO THE STATEMENT WITHOUT GOING THROUGH THE SA ME IN DETAIL AND PREPARE ITS COUNTER THEREON. HENCE IT COULD BE SAFELY CONCLUDED THAT IN THE INSTANT CASE, THE ID AO DID NOT PROVIDE THE RELEVANT MATERIALS TO THE ASSESSEE. FURTHER DESPITE REQUEST FOR CROSS EXAMINATION BEING MADE BY THE ASSESSEE, THE SAME WAS NOT ALLOWED BY THE ID AO AND HENCE RESPECTFULLY FOLLOWING THE AFORESAID DECISIONS OF THE HON'BLE SUPREME COURT AND VARIOUS HIGH COURTS SUPRA, WE HOLD THAT THERE WAS NO MATERIAL AVAILABLE WITH THE REVENUE ON THE BASIS OF WHICH IT COULD JUSTIFY ITS ACTI ON OF DISALLOWING THE CLAIM OF DEDUCTION UJS 35( 1 )(II) OF THE ACT. 5.5. MOREOVER, WE FIND THAT THE PROVISIONS OF EXPLANATION TO SECTION 35(1 )(II) OF THE ACT ALSO COMES TO THE RESCUE OF THE ASSESSEE. FOR THE SAKE OF CONVENIENCE, THE SAID EXPLANATION IS REPRODUCED BELOW: - 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 BY THE ASSESSEE, THE APPROVAL 13 ITA NO.2414/KOL/19 A.Y 2015 - 16 GRANTED TO THE ASSOCIATION, UNIVERSITY, COLLEGE OR OTHER INSTITUTION REFERRED TO IN CLAUSE (II) OR CLAUSE (III) HAS BEEN WITHDRAWN. IN THE INSTANT CASE, THE ID DR ARGUED THA T THE RECOGNITION U / S 35(1 )(II) OF THE ACT WAS WITHDRAWN IN THE CASE OF HHBRF BY THE CBDT WITH RETROSPECTIVE EFFECT. IN RESPONSE TO THIS, THE ID AR ARGUED THAT ON THE DATE ON WHICH DONATION WAS GIVEN, THE NOTIFICATION U/S 35(1)(II) OF THE ACT WAS IN FORCE AND VALID AND THEREFORE THE DEDUCTION CLAIMED BY THE ASSESSEE WAS IN ORDER. WE FIND THAT THE ID CITA HAD IGNORED THE PROVISIONS OF THE ACT (I.E THE EXPLANATION TO SECTION 35( \ )(II) OF THE ACT) BY MERELY STATING THAT HHBRF HAD SUBSEQUENTLY DECLARED BEFORE THE HON'BLE SETTLEMENT COMMISSION, DEPARTMENT OF REVENUE, GOVERNMENT OF INDIA , ADDITIONAL INCOME AND ADMITTED TO THE MODUS OPERANDI OF VARIOUS TRANSACTIONS CARRIED OUT BY THEM. BUT THIS IN OUR CONSIDERED OPINION, WOULD NOT SERVE THE PURPOSE OF THE REVENUE . MERELY BECAUSE THE DONEE GOES TO HON'BLE SETTLEMENT COMMISSION AND DECLARES SOME ADDITIONAL INCOME THEREON, IT DOES NOT I. T.A. NO. 23461K01L2018 RAJ KARAN DASSANI ASSESSMENT YEAR: 2013 - 14 AUTOMATICALLY IMPLEAD THE ASSESSEE HEREIN ON THE NEGATIVE SIDE AND THE EXPRESS PROVISIONS OF THE ACT CANNOT BE IGNORED THEREON. THERE CANNOT BE ANY MALAFIDE THAT COULD BE ATTRIBUTED ON THE ASSESSEE HEREIN. WE FIND THAT THE ASSESSEE WAS UNDER THE BONA FIDE BELIEF AND HAD MADE PROPER DUE DILIGENCE BEFORE GRANTING DONATION TO HHBRF WHICH WAS DULY RECOGNIZED U/S 35(1 )(II) OF THE ACT AT THE TIME OF GIVING DONATION. WE HOLD THAT IF THE SUBSEQUENT NOTIFICATION CANCELLED THE REGISTRATION U/S 35(1) (II) OF THE ACT, THE SAME DOES NOT AFFECT THE DONATION MADE BY THE ASSESSEE WHEN THE SAID NOTIFICATION WAS IN FORCE. THE BONAFIDE BELIEF OF THE ASSESSEE DONOR AT THE TIME OF GRANTING DONATION TO AN INSTITUTION ON THE BASIS OF RECOGNITION THEN AVAILABLE, CANNOT BE DISTURBED BY SUBSEQUENT EVENT. THIS IS MORE CLEARLY SPELT OUT IN THE PR OVISIONS OF THE ACT ITSELF BY WAY OF AN EXPLANATION TO SECTION 35(1) OF THE ACT. HENCE EVEN AS PER THE PROVISIONS OF THE ACT, THE DENIAL OF DEDUCTION U/S 35(1 )(II) OF THE ACT IS NOT IN ORDER. WE ALSO FIND THAT THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CA S ES OF B.P.AGARWALLS & SONS LTD VS CIT REPORTED IN 208 ITR 63 (CAL) AND JAI KUMAR KANKARIA VS CIT REPORTED IN 251 ITR 707 (CAL) HAD HELD THAT THERE WAS NO POWER TO CANCEL THE REGISTRATION RETROSPECTIVELY. HENCE EVEN ON THIS COUNT, THE DEDUCTION CLAIMED U /S 35( I )(II) OF THE ACT BY THE ASSESSEE DESERVES TO BE ALLOWED. 14 ITA NO.2414/KOL/19 A.Y 2015 - 16 5.6. WE FIND THAT THE ID CITA HAD MADE AN OBSERVATION WHICH HAS BEEN HEAVILY RELIED UPON BY THE ID DR THAT THE ASSESSEE'S LINE OF BUSINESS HAS GOT NOTHING TO DO EVEN REMOTELY WITH THE HEAL THCARE OR HERBAL HEALTHCARE INDUSTRY MUCH LESS IN THE AREA OF RESEARCH THEREON AND ACCORDINGLY THERE WAS NO NEED FOR THE ASSESSEE TO GIVE DONATION OF RS 14,00,0001 - TO HHBRF . WE FIND THAT THIS ASPECT HAS BEEN DULY ADDRESSED BY THE ASSESSEE BY STATING THA T ONE CARDIOLOGIST DOCTOR HAD INTRODUCED THE ASSESSEE TO HHBRF AND DONATIONS WERE GIVEN AFTER DUE SATISFACTION OF THE ASSESSEE BASED ON PERSONAL VISITS TO THE TWO RESEARCH CENTRES OF HHBRF AND ACTIVITIES CARRIED ON BY THEM. MOREOVER, IT IS WELL SETTLED THA T IT IS ALWAYS THE PREROGATIVE OF THE ASSESSEE TO GIVE OR NOT TO GIVE ANY DONATION TO A PARTICULAR INSTITUTION, WHICH WISDOM CANNOT BE QUESTIONED BY THE REVENUE. THE QUESTION OF BUSINESS EXPEDIENCY OF AN EXPENDITURE HAD TO BE VIEWED FROM THE POINT OF VIEW OF THE BUSINESSMAN AND NOT FROM THE VIEW POINT OF THE REVENUE. THE BUSINESSMAN KNOWS HIS INTEREST BEST. HOWEVER, IT CANNOT BE DENIED THAT THIS DONATION PAID TO HHBRF IS FREE FROM ANY SUSPICION. IT DEFINITELY LEADS TO FURTHER PROBE BY THE REVENUE, WHICH HAS BEEN CARRIED OUT BY THE REVENUE BY SUMMONING THE DIRECTOR OF HHBRF . THE SAID DIRECTOR SHRI SWAPAN RANJAN DASGUPTA, THOUGH COULD NOT APPEAR IN PERSON BEFORE THE ID AO FOR CROSS - EXAMINATION (WHICH WAS SOUGHT BY THE ASSESSEE) BUT HAD CONFIRMED IN WRITING TH AT THE DONATIONS GIVEN BY THE ASSESSEE TO HHBRF WERE GENUINE IN NATURE AND HAD FURTHER CONFIRMED THAT HHBRF HAD NOT PAID ANY CASH BACK TO ASSESSEE IN LIEU OF CHEQUE DONATIONS PAID TO THEM. THE REVENUE HAD LEFT THE MATTER AT THIS STAGE ITSELF AND DID NOT FU RTHER PROBE INTO IT TO CHECK THE VERACITY OF THE CONFIRMATION MADE BY SHRI SWAPAN RANJAN DASGUPTA. THEREFORE, THE ID AO PROCEEDED TO MAKE THE ADDITION ONLY BASED ON THE STATEMENT RECORDED FROM SWAPAN RANJAN DASGUPTA AT THE TIME OF SURVEY. IT MAY BE TRUE TH AT IN THE SAID STATEMENT, SWAPAN RANJAN DASGUPTA MAY HAVE DEPOSED TO THE FACT THAT HHBRF WERE IN RECEIPT OF VARIOUS DONATIONS FROM VARIOUS PERSONS IN CHEQUES AND THE SAME WERE ROUTED BACK TO THE DONORS IN CASH AFTER RETAINING CERTAIN PORTION AS THEIR COMM ISSION AND INTERMEDIARIES' COMMISSION. THIS IS ONLY A GENERAL STATEMENT GIVEN BY SWAPAN RANJAN DASGUPTA ABOUT THE MODUS OPERANDI CARRIED OUT BY HHBRF. BUT NOWHERE IN THE SAID STATEMENT OR IN THE SUBSEQUENT ENQUIRES 1 INVESTIGATION, IT CAME TO LIGHT THAT T HE ASSESSEE HEREIN HAD INDEED RECEIVED BACK THE CASH IN LIEU OF CHEQUE DONATIONS GIVEN TO HHBRF. THIS SERVES AS A CLINCHING MISSING EVIDENCE IN THE ENTIRE GAMUT OF THIS CASE. 15 ITA NO.2414/KOL/19 A.Y 2015 - 16 5.7. NOW LET US COME TO YET ANOTHER LEGAL ASPECT AS TO WHETHER ANY ADDITION 1 D ISALLOWANCE COULD BE MADE MERELY BASED ON STATEMENT RECORDED DURING SURVEY WHICH IS NOT BACKED BY ANY OTHER SUPPORTING MATERIAL. IT WOULD BE PERTINENT TO NOTE THAT THE SWORN STATEMENT RECORDED DURING SURVEY DOES NOT HAVE ANY EVIDENTIARY VALUE. IN THIS REG ARD, THE DECISION OF THE HON'BLE MADRAS HIGH COURT IN THE CASE OF S.KHADER KHAN (2008) 300 ITR 157 (MAD) ASSUMES SIGNIFICANCE, WHEREIN IT WAS HELD THAT : - LT.A. NO. 23461K0V2018 RAJ KARAN DASSANI ASSESSMENT YEAR: 2013 - 14 'AN ADMISSION IS AN EXTREMELY IMP ORTANT PIECE OF EVIDENCE, BUT IT CANNOT BE SAID THAT IT IS CONCLUSIVE AND IT IS OPEN TO THE PERSON, WHO MADE IT, TO SHOW IT HAS INCORRECTLY BEEN MADE AND THE PERSON, MAKING THE STATEMENT SHOULD BE GIVEN PROPER OPPORTUNITY TO SHOW THAT IT DOES NOT SHOW THE CORRECT STATE OF FACTS.' IT WAS FURTHER HELD THAT THE MATERIALS FOUND IN THE COURSE OF SURVEY COULD NOT BE THE BASIS FOR MAKING ANY ADDITION IN THE ASSESSMENT. THE WORD 'MAY' USED IN SECTION I 33A(3)(III) OF THE ACT MAKES IT CLEAR THAT THE MATERIAL COLLECTED AND STATEMENT RECORDED DURING THE SURVEY U/S 133A OF THE ACT ARE NOT CONCLUSIVE PIECE OF EVIDENCES BY ITSELF. THIS DECISION OF HON'BLE MADRAS HIGH COURT WAS AFFIRMED BY THE HON'BLE APEX COURT IN THE CASE OF CIT VS S KHADER KHAN SONS REPORTED IN 352 ITR 480 (SC) , WHEREIN THEIR LORDSHIPS OF SUPREME COURT HELD AS UNDER: - 'HEARD COUNSEL ON BOTH THE SIDES. LEAVE GRANTED. THE CIVIL APPEAL FILED BY THE DEPARTMENT PERTAINS TO ASSESSMENT YEAR 2001 - 02. IN VIEW OF THE CONCURRENT FINDINGS OF FACT, THIS CIVIL APPEAL IS DISMISSED. ' WE FIND THAT THE SOLE BASIS OF LD AO MAKING THIS DISALLOWANCE OF DEDUCTION U/S 35( \ )(II) OF THE ACT WAS ON THE BASIS OF STATEMENT RECORDED DURING SURVEY FROM THE DIRECTOR OF HHBRF WHICH DOES NOT HAVE ANY EVIDENTIARY VALUE. HENCE RESPECTFULLY FOLLOWING THE AFORESAID DECISION OF THE HON'BLE MADRAS HIGH COURT AFFIRMED LATER BY THE HON'BLE APEX COURT SUPRA, WE HOLD THAT THERE IS NO CASE MADE OUT BY THE ID AO FOR MAKING THIS DISALLOWANCE U/S. 35(1 )(II) OF THE ACT. 16 ITA NO.2414/KOL/19 A.Y 2015 - 16 5.8 WE ALSO FIND THAT SIMILAR ISSUE CAPE U P BEFORE THE CO - ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF SAIMED INNOVATION VS. ITO IN ITA NO. 2231/KOL/2016 FOR ASST YEAR 2013 - 14 DATED 13.9.2017, WHEREIN IT WAS HELD AS UNDER: '9. 'E NOTE THAT THE SOLE BASIS FOR MAKING THE ADDITION IS ON THE BASIS OF THE STATEMENT RECORDED ON OATH DURING SURVE AT MLS. HERBICURE OF SHRI SWAPAN RANJAN DASGUPTA, OTHER THAN THE SAID STATEMENT THERE IS NO OTHER EVIDENCE TO SHOW THAT THE ASSESSEE HAS RECEIVED BACK THE DONATION AS SUGGESTED IN HIS GENERAL TATEMENT ABOUT PROVIDING ACCOMMODATION ENTRY BY SHRI SWAPAN RANJAN DASGUPTA. WE ALSO NOTE THAT THE SAID SHRI SWAPAN RANJAN DASGUPTA HAS NOT STATED ANYWHERE THAT THE ASSESSEE INDULGED IN BOGUS DONATION OR THAT THE AMOUNT DONATED TO IT (M/S. HERBICURE) WAS GIVEN BACK TO THE ASSESSEE AFTER DEDUCTING THE COMMISSION. WE NOTE THAT THE STATEMENT RECORDED ON OATH DURING SURVEY CANNOT BE THE S OLE BASIS FOR MAKING THE DISALLOWANCE AS DECIDED BY THE HON'BLE SUPREME COURT IN CIT VS. S. KADER KHAN SON (2013) 352 HR 480 (SC). IN ANY CASE, IF THE AO WAS OF THE OPINION THAT THE STATEMENT OF SHRI SWAPAN RANJAN DASGUPTA, THE FOUNDER DIRECTOR OF MLS. HERBICURE HAS ADVERSELY AFFECTED THE VERACITY OF THE DONATION MADE BY THE ASSESSEE THEN HE WAS DUTY BOUND TO SUMMON SHRI SWAP AN RANJ AN DASGUPTA AND ALLOWED THE ASSESSEE TO HAVE CROSS EXAMINED HIM, FAILING WHICH THE STATEMENT OF SHRI SWAPAN RANJAN DASGUPTA COULD NOT BE USED AGAINST THE ASSESSEE TRUST AS HELD BY THE HON'BLE SUPREME COURT IN ANDAMAN TIMBERS LTD. VS.COMMISSIONER OF CENTR AL EXCISE 62 TAXMAN 3. WE NOTE THAT THE AO HAD IN FACT, RECORDED THE FACT THAT THE PARTNERS OF THE ASSESSEE FIRM DESIRED TO CROSS EXAMINE THE FOUNDER DIRECTOR OF M/S. HERBICURE SHRI SWAPAN RANJAN DASGUPTA REGARDING THE PURPORTED DEPOSITION MADE AT THE TIM E OF SURVEY. HOWEVER, AO DID NOT GRANT HIM THAT OPPORTUNITY TO CROSS EXAMINE SHRI SWAPAN RANJAN DASGUPTA. WE ALSO NOTE THAT THE AO ISSUED NOTICE U/S. 131 OF THE ACT TO THE PARTNERS OF THE ASSESSEE FIRM AND HAS RECORDED THEIR STATEMENT ON OATH ON 28.12.20 15. WE NOTE FOR QUESTION NO. 14 AS TO HOW THE PARTNER KNEW ABOUT MLS. HERBICURE, THE PARTNER OF THE ASSESSEE FIRM HAS ANSWERED THAT DR. BHUBAN CHAKRABORTY, A CARDIOLOGIST FRIEND INTRODUCED THEM TO MLS. HERBICURE AND TO QUESTION NO. 15 AS WHETHER THE PART NERS HAVE VISITED THE OFFICE OF M/S. I.T.A. NO. 2346/KO1L20 18 RAJ KARAN DASSANI ASSESSMENT YEAR: 2013 - 14 HERBICURE TO WHICH THE PARTNERS ANSWERED THAT THEY HAD VISITED THE PREMISES OF M/S. HERBICURE ON TWO OCCASIONS AND FOR 17 ITA NO.2414/KOL/19 A.Y 2015 - 16 QUESTION NO. 16 AS TO WHETHER THE PARTNERS WERE SATISFIED WITH THE WORK OF SCIENTIFIC RESEARCH CARRIED ON BY THE SAID MLS. HERBICURE, THE PARTNERS OF THE ASSESSEE FIRM HAD REPLIED THAT DURING THEIR VISIT AT PAILAN AND BARAL THEY WERE SATISFIED WITH THE S CIENTIFIC RESEARCH WORK AND FOR QUESTION NO. 17 THE PARTNERS REPLIED THAT THEY HAD SEEN THE CERTIFICATE ISSUED BY GOVT. OF INDIA AND ALSO HAVE GONE THROUGH THE RESEARCH PAPER OF THE PEOPLE WORKING THERE. FOR QUESTION NO. 20 THEY HAVE GIVEN THE NAME OF THE DOCTOR WHO WAS A CARDIOLOGIST WHO INTRODUCED THEM TO M/S. HERBICURE. WE NOTE THAT THE AO ENQUIRED ABOUT DR. BHUBAN CHAKRABORTY'S ADDRESS FOR WHICH THE PARTNER REPLIED THAT THE DOCTOR RESIDES AT KSHUDIRAM SARANI, RATHTALA, KOLKATA. FOR QUESTION NO. 21 AS TO WHETHER THEY KNEW ABOUT THE DIRECTORATE OF INVESTIGATION, KOLKATA CARRIED OUT SURVEY U / S. 133A AND THAT ITS INVESTIGATION IS FOUND THAT THE ACTIVITIES WERE NOT GENUINE, THE PARTNERS REPLIED THAT THEY WERE NOT AWARE OF THE SURVEY, HOWEVER, THEY ADDED THA T AFTER THEIR VISIT OF THE TWO CENTERS THEY WERE ON A BONA FIDE BELIEF THAT M/S. HERBICURE WAS A COMPETENT INSTITUTE AND BASED ON THE RECOMMENDATION OF THE CARDIOLOGIST DR. BHUBAN CHAKRABRTY THEY MADE DONATION TO THE SAID CONCERN. WE ALSO NOTE THAT THE AO ISSUED SUMMONS TO SHRI SWAPAN RANJAN DASGUPTA WHO DID NOT APPEAR FOR CROSS EXAMINATION DUE TO ILL HEALTH BUT THE SAID SHRI DASGUPTA CONFIRMED THE DONATIONS MADE BY THE ASSESSEE FIRM TO MLS. HERBICURE IN WRITING TO THE AO AND CLEARLY STATED THAT NO MONEY WAS REFUNDED BACK TO ASSESSEE FIRM, WHICH FACT HAS BEEN REPRODUCED BY THE AO AT PAGE 7 OF HIS ORDER AS UNDER: 'SHRI SWAPAN RANJAN DASGUPTA, DIRECTOR OF M/S HERBICURE HEALTHCARE BIO - HERBAL RESEARCH FOUNDATION HAD FILED A LETTER ON 28/0112016 STATING 'REFE RRING TO THE ABOVE AND YOUR COMMENTS ON MY REPLY DATED 22.01.2016, I WOULD FURTHER REQUEST YOUR GOOD OFFICE TO ELABORATE THE FINANCIAL YEARS IN QUESTION TO ENABLE OUR ACCOUNTS DEPTT FOR VERIFICATION AND SUBMISSION. HOWEVER, WE APPARENTLY OBSERVE FROM OUR RECORDS THAT FOLLOWING DONATIONS WERE RECEIVED BY US FROM M / S. SAIMED INNOVATION, THE ASSESSEE IN THE FINANCIAL YEARS MENTIONED AGAINST EACH: F.YS AMOUNT MODE OF TRANSACTION DATE RECEIPT NO. 2012 - 13 7,51,000/ - RTGS - UTR 15.03.2 013 HHBHR NO. BARBH /15 - 03 - 13 1307406758 /004 2012 - 13 7,51,000/ - RTGS - UTR 26.03.2013 HHBHR NO. BARBH /26 - 03 - 13 13085899500 /004 18 ITA NO.2414/KOL/19 A.Y 2015 - 16 FURTHER, IT IS SUBMITTED FOR YOUR KIND RECORD THAT NO MONEY WAS REFUNDED TO THE ABOVE NAMED ASSESSEE AGAINST DONATIONS GIVEN BY THEM. MEANTIME, I MAY SUBMIT THAT I AM CRITICALLY INDISPOSED DUE TO ACUTE LUMBER SCOLIOSIS AND AM NOT ABLE TO MOVE. I AM UNDER S TRICT MEDICAL SUPERVISION. AS SUCH, MY PERSONAL APPEARANCE MAY KINDLY BE WAIVED ON COMPASSIONATE GROUND. I AM ATTACHING THE CURRENT MEDICAL PRESCRIPTION/ADVICE ALONG WITH MRI REPORTS FOR YOUR KIND RECORD. HOWEVER, THE INFORMATION AS SUBMITTED ABOVE MAY P LEASE RECORDED AS MY WITNESS.' 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 REP RODUCED 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 CONFMNED THAT M/S. HERBICURE WAS IN RE CEIPT 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 I. T.A. NO. 23461K01/2018 RAJ KARAN DASSANI ASSESSMENT YEAR: 2013 - 14 4 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 EXAM INE SHRI SWAPAN RANJAN DAS GUPTA AND SHRI KISHAN BHAWASINGKA 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 A SIDE 19 ITA NO.2414/KOL/19 A.Y 2015 - 16 THE IMPUGNED ORDER AND DIRECT THE AO TO ALLOW THE DEDUCTION OF RS.26,28,5001 - U/S. 35( 1 )(II) OF THE ACT. 12. IN THE RESULT, APPEAL OF ASSESSEE IS ASSESSEE IS ALLOWED'. 5.9. 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 ID AO TO GRANT DEDUCTION U/S 35(1)(II) OF THE ACT IN THE SUM OF RS 24,50,0 00 / - TO THE ASSESSEE. ACCORDINGLY, THE GROUNDS 2 TO 5 RAISED BY THE ASSESSEE ARE ALLOWED.' 17. THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. CHOTATINGRAI TEA & ORS.; (2002) 258 ITR 529 HAS HELD AS FOLLOWS: '4. THE HIGH COURT FOLLOWED THE REASONING OF THE CALCUTTA HIGH COURT IN COMMISSIONER OF INCOME TAX V. BHARTIA CUTLER HAMMER CO., 232 LT.R 785 AND CAME TO THE CONCLUSION THAT ONCE IT WAS FOUND THAT THE ASSESSEES HAD FULFILLED ALL THE CONDITIONS WHICH HAD BEEN LAID DOWN UNDER SECTION 35CCA OF TH E ACT FOR CLAIMING DEDUCTION OF THE AMOUNT DONATED BY IT, THERE WAS NO OBLIGATION ON THE PART OF THE ASSESSEE TO SEE THAT THE AMOUNT WAS UTILISED FOR THE PURPOSE FOR WHICH IT WAS DONATED. FURTHERMORE, THE DEDUCTION WAS ALLOWED ON THE CERTIFICATE FURNISHED AND IT WAS NOT FOR THE ASSESSEE TO SHOW WHETHER THE INSTITUTION TO WHICH THE MONEY HAD BEEN DONATED WAS CARRYING ON THE RURAL DEVELOPMENT WORK, AS ENVISAGED UNDER SECTION 35CCA OF THE ACT. 5. IN OUR VIEW, THE REASONING OF THE HIGH COURT WHIL E ANSWERING THE QUESTION REFERRED TO IT IN FAVOUR OF THE ASSESSEE IS SOUND AND CALLS FOR NO INTERFERENCE. 6. THE FINAL SUBMISSION OF THE LEARNED COUNSEL APPEARING ON BEHALF OF THE APPELLANT IS THAT THE HIGH COURT'S FINAL OBSERVATION THAT THE ORDER OF TH E TRIBUNAL REMANDING THE MATTER FOR DECISION WOULD STAND QUASHED AND THAT THE ASSESSEES WERE ENTITLED TO CLAIM DEDUCTION WAS BEYOND THE JURISDICTION OF THE HIGH COURT. THE LEARNED COUNSEL FOR THE APPELLANT MAY BE TECHNICALLY CORRECT BUT WHAT HAS BEEN OB SERVED BY THE HIGH COURT WAS AS A NECESSARY COROLLARY TO THE ANSWER ON THE REFERRED QUESTION WHICH WAS MERELY SPELT OUT BY THE HIGH COURT. 20 ITA NO.2414/KOL/19 A.Y 2015 - 16 7. WE, ACCORDINGLY, DISMISS, THE APPEALS WITHOUT ANY ORDER AS TO COSTS.' 18. THE SIMILAR VIEW HAS BEEN TAKEN BY KOLKATA 'B' BENCH OF THE TRIBUNAL IN ITA NO.16/KOL/2017 IN THE CASE OF DC IT VS. M/S MACO CORPORATION (INDIA) PVT. LTD. ORDER DATED 14.03.2018. I.T.A. NO. 23461K01L2018 RAJ KARAN DASSANI ASSESSMENT YEAR: 2013 - 14 18. APPLYING THE PROPOSITION OF LAW LAI D DOWN IN THE CASE LAWS TO THE FACTS OF THIS CASE AND ALSO ON EVALUATING THE EVIDENCE RELIED UPON BY THE PARTIES, WE UPHOLD THE CONTENTION OF THE ASSESSEE THAT HE IS ENTITLED TO DEDUCTION U/S 35(1 )(II) OF THE ACT. WE DIRECT THE ASSESSING OFFICER GRANT TH E SAME. GROUND NO.4 & 5 IS ALLOWED. I ADOPT THE ABOVE EXTRACTED DETAILED REASONING MUTATIS MUTANDIS TO DELETE THE IMPUGNED DISALLOWANCE OF RS.35 LAKHS. 5 . IN THE RESULT, T HIS ASSESSEES APPEAL IS ALLOWED IN ABOVE TERMS. ORDER PRONOUNCED IN THE COURT ON 31 - 01 - 2020 SD/ - (SATBEER SINGH GODARA) JUDICIAL MEMBER KOLKATA, THE 31 DAY OF JANUARY, 2020 *PP/ COPIES TO : (1) M/S. RAJDA POLYMERS 10 POLLOCK ST., 4 TH FL., TEA BOARD, KOLKATA - 700 001. (2) ASSTT. COMMISSIONER OF INCOME TAX , CIRCLE - 36, AAYKAR BHAWAN POORVA, 110 SHANTIPALLY, 8 TH FL., E M BYPASS, KOLKATA - 107. ( 3 ) COMMISSIONER OF INCOME TAX (APPEALS) - 3 , KOLKATA ; (4) COMMISSIONER OF INCOME TAX - , KOLKATA ( 5 ) THE DEPARTMENTAL REPRESENTATIVE ( 6 ) GUARD FILE BY ORDER ASSISTANT REGISTRAR, INCOME TAX APPELLATE TRIBUNAL, KOLKATA BENCHES, KOLKATA 21 ITA NO.2414/KOL/19 A.Y 2015 - 16