NASH FASHIONS (INDIA) LTD., Jaipur V. CIT-1, Jaipur

ITA 298/JPR/2014

• Counselvise Citation: 29823114 RSA 2014
• Duration Of Justice: 6 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-11-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 22-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUBHASH CHANDRA
• Keywords: Revision of order; Business expenditure; Difference of opinion; Change of opinion
• Section: 143(3); 37(1); 80G; 37; 263; 63

Judgement Text

IN THE INCOMETAX APPELLATE TRIBUNAL JAIPUR BENCH: JAIPUR (BEFORE SHRI R.P. TOLANI AND SHRI T.R. MEENA) I.T.A. NO. 298/JP/2014 ASSTT. YEAR- 2009-10 PAN NO. AABCN 0909 K M/S NASH FASHIONS (INDIA) LTD., THE C.I.T., JAIPUR- I G- 169-170, EPIP, SITAPURA, VRS. N.C.R. BUILDING, INDUSTRIAL AREA, JAIPUR. STATUTE CIRCLE, JAIPUR . (APPELLANT) (RESPONDENT) ASSESSEE BY :- SHRI P.C. PARWAL. DEPARTMENT BY :- SHRI SUBHASH CHANDRA. DATE OF HEARING : 13/10/2014 DATE OF PRONOUNCEMENT : 05/11/2014 O R D E R PER: T.R. MEENA, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 21/02/2014 OF THE LEARNED C.I.T.-I, JAIPUR FOR THE A .Y. 2009-10. THE SOLE GROUND OF APPEAL IS AGAINST THAT THE ASSESSING OFFI CER HAS WRONGLY ALLOWED THE DEDUCTION OF RS. 86,41,387/- U/S 80G OF THE IT ACT. 2. IN THIS CASE, THE ASSESSEE COMPANY IS ENGAGED IN THE BUSINESS OF TRADING AND EXPORT OF READYMADE GARMENTS. THE ASSES SEE FILED RETURNED INCOME FOR A.Y. 2009-10 ON 30/09/2009 DECLARED TOTA L INCOME OF RS. 68,77,320/-. THE ASSESSING OFFICER SCRUTINIZED THE C ASE U/S 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). THE ASSESSI NG OFFICER EXAMINED ITA 298/JP/2014 M/S NASH FASHIONS VS. CIT-I 2 BOOKS AND ALLOWED 80G DEDUCTION CLAIMED BY THE ASSES SEE IN COMPUTATION OF INCOME. THE LEARNED CIT HELD THAT THE DEDUCTION U /S 80G OF THE ACT AT RS. 86,41,387/- MADE IN FORM OF VARIOUS EQUIPMENTS/ ITEMS TO M/S RAJASTHAN MEDICAL RELIEF SOCIETY, S.M.S. HOSPITAL, JAIPUR. IN VIEW OF EXPLANATION-5 OF SECTION 80G, NO DEDUCTION U/S 80G IS ALLOWABLE IN RESPECT OF ANY DONATION UNLESS SUCH DONATION IS A SUM OF MO NEY. SINCE THE ASSESSEE MADE DONATION IN THE FORM OF EQUIPMENTS AN D NOT AS A SUM OF MONEY. HE FURTHER HELD THAT THE LEARNED ASSESSING O FFICER ALLOWED 80G DEDUCTION WITHOUT VERIFYING THE FACTS AND WITHOUT CON SIDERING THE PROVISIONS OF INCOME TAX LAW. HE FOUND ASSESSMENT OF THE ASSESSING OFFICER ERRONEOUS AND PREJUDICE TO THE INTEREST OF THE REVENUE, THEREFORE, HE ISSUED NOTICE U/S 263 OF THE ACT, WHICH WAS REPLI ED BY THE ASSESSEE ON VARIOUS DATES. IT WAS SUBMITTED BY THE ASSESSEE BEF ORE HIM THAT THE ASSESSEE MADE DONATION OF MONEY THROUGH CHEQUE OF R S. 86,41,387/-. ON THE REQUEST OF M/S RAJASTHAN MEDICAL RELIEF SOCIETY , S.M.S. HOSPITAL, JAIPUR, THE CHEQUES WERE ISSUED IN FAVOUR OF SUPPLIE R OF MEDICAL EQUIPMENTS, WHO DIRECTLY SUPPLIED AND INSTALLED THE EQUIPMENTS AT ICU OF SMS HOSPITAL, IT WAS NOT A DONATION IN KIND. IN SUPP ORT OF HIS CLAIM, THE COMPANY SUBMITTED CERTIFICATE ISSUED BY MEDICAL SUP ERINTENDENT OF SMS HOSPITAL, JAIPUR BY STATING THAT M/S NASH FASHIONS (INDIA) LTD. HAD DONATED RS. 86,41,387/- TO S.M.S. HOSPITAL FOR SETTING UP N EW I.C.U. UNIT WHICH WAS ITA 298/JP/2014 M/S NASH FASHIONS VS. CIT-I 3 UTILIZED FOR PURCHASE OF EQUIPMENTS. IT WAS FURTHER CLAIMED BY THE ASSESSEE THAT EXPLANATION-5 OF SECTION 80G DO NOT MANDATE TH AT THE PAYMENT SHOULD BE MADE DIRECTLY TO THE DONEE. THE ASSESSEE HAD MADE PAYMENTS BY CHEQUES TO THE SUPPLIERS OF EQUIPMENTS ON BEHALF OF DONEE WHICH TANTAMOUNT TO DONATIONS MADE AS A SUM OF MONEY. THE ASSESSEE ARGUED BEFORE HIM THAT THE SUBSTANCE SHOULD BE SEEN NOT FO RM OF DONATION. IT ALTERNATIVELY CLAIMED THAT THIS EXPENDITURE WHOLLY A ND EXCLUSIVELY INCURRED FOR BUSINESS PURPOSES U/S 37(1) OF THE ACT. SINCE T HE EXPENDITURE WAS INCURRED FOR THE WELFARE OF GENERAL PUBLIC, WHICH INC LUDED THE EMPLOYEES, SUPPLIERS AND BUYERS OF THE ASSESSEE.. THE DONATION WAS MADE UNDER THE COMPANYS POLICY ON CORPORATE SOCIAL RESPONSIBILITY (CSR). HE, THEREFORE, REQUESTED TO DROP THE PROCEEDINGS INITIATED U/S 263 OF THE ACT. 3. AFTER CONSIDERING THE ASSESSEES REPLY, IT HAS B EEN HELD BY THE CIT-I THAT IT IS EVIDENT FROM THE RECORDS THAT THE ASSESS MENT ORDER WAS PASSED BY THE ASSESSING OFFICER WITHOUT CONSIDERING THE FAC TS OF THE ISSUE AND RELEVANT PROVISIONS OF SECTION 80G OF THE ACT. WHAT EVER EVIDENCE FILED BY THE ASSESSEE FOR CLAIMING DEDUCTION HAS NOT BEEN VE RIFIED BY THE ASSESSING OFFICER. NEITHER ANY QUERY WAS RAISED BY HER NOR ANY EXPLANATION SOUGHT FROM THE ASSESSEE DURING THE ASSESSMENT PROCEEDINGS ON THIS ISSUE. THIS IS NON-APPLICATION OF MIND AND NON-APPLICATION OF CORR ECT PROVISIONS OF LAW. THEREFORE, THE ASSESSING OFFICERS ORDER IS ERRONEOU S AND PREJUDICIAL TO THE ITA 298/JP/2014 M/S NASH FASHIONS VS. CIT-I 4 INTEREST OF THE REVENUE. THE LEARNED CIT REFERRED EX PLANATION-5 OF SECTION 80G ON PAGE 3 OF HIS ORDER AND ALSO QUOTED THE HON BLE APEX COURT DECISION IN THE CASE OF H.H. SHRI RAMA VERMA VS. CI T 187 ITR 308 AND HONBLE GUJARAT HIGH COURT DECISION IN THE CASE OF CIT VS. MISS YERABEN R. AMIN 115 CTR 120. HE FURTHER RELIED UPON THE DECISIO N OF HONBLE ITAT JAIPUR BENCH DECISION IN THE CASE OF ITO VS. SHRI K OMAL KUMAR BADER (ITA NO. 1253/JP/2008). HE OBSERVED THAT THE SUPPLIER IS SUED BILLS IN NAME OF APPELLANT NOT IN THE NAME OF M/S RAJASTHAN MEDICAL RELIEF SOCIETY, S.M.S. HOSPITAL, JAIPUR, BUT IT SHOULD BE ISSUED IN THE NA ME OF THE SOCIETY. THE SUM OF MONEY SHOULD HAVE BEEN ACCOUNTED FOR IN HIS CASH BOOKS BY THE SOCIETY. NO EVIDENCE WAS BROUGHT ON RECORD BY THE AS SESSEE TO SUBSTANTIATE ITS CLAIM THAT PAYMENTS WERE MADE TO T HE SUPPLIERS OF THE EQUIPMENTS ON BEHALF OF THE DONEE. HE HAD NOT ALSO ACCEPTED THE ALTERNATIVE CONTENTION OF THE ASSESSEE OF BUSINESS EXPENDITURE U/S 37 OF THE ACT. THE EXPENSES INCURRED ON PURCHASE OF EQUIPM ENTS WERE NOT WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF BUSINESS. HE FUR THER CITED NUMBER OF CASES FOR NOT ALLOWING DONATION AS BUSINESS EXPENDIT URE. FINALLY HE DIRECTED TO THE ASSESSING OFFICER TO WITHDRAW THE DEDUCTION AL LOWED BY HER AND RECOMPUTED THE TOTAL INCOME AND TAXED THEREON. 4. NOW THE ASSESSEE IS IN APPEAL BEFORE US. ITA 298/JP/2014 M/S NASH FASHIONS VS. CIT-I 5 5. THE LEARNED A.R. FOR THE ASSESSEE HAS SUBMITTED T HAT THERE IS NO DISPUTE AS TO THE FACT THAT DEDUCTION FOR DONATION U/S 80G IS AVAILABLE ONLY WHEN DONATION IS OF A SUM OF MONEY. BUT TO CONSIDER WHETHER THE DONATION IS OF A SUM OF MONEY OR NOT, ONE HAS TO LOOK TO THE SUBSTANCE OF THE TRANSACTION AND IF THE SUBSTANCE OF THE TRANSACTION REVEALS THAT WHAT IS DONATED IS THE SUM OF MONEY THE REBATE MUST BE GRAN TED TO THE ASSESSEE. THE GUJARAT HIGH COURT IN CASE OF CIT VS. SMT. DHIRJA BEN R. AMIN 141 ITR 875 WHERE THE DONATION WAS OF SHARES HELD THAT SINCE DONATION IS IN KIND DEDUCTION UNDER SECTION 80G IS NOT AVAILABLE. HOWEVE R, IN THIS DECISION HONBLE GUJARAT HIGH COURT AFTER REFERRING TO THE D ECISION OF BOMBAY HIGH COURT IN CASE OF CIT VS. ASSOCIATED CEMENT CO. LTD. 68 ITR 478, MYSORE HIGH COURT IN CASE OF CIT VS. BANGALORE WOOLLEN, COT TON & SILK MILLS CO. 91 ITR 166, ANDHRA PRADESH HIGH COURT IN CASE OF CIT VS. AMONBOLU RAJIAH 102 ITR 403, BOMBAY HIGH COURT IN CASE OF CIT VS KHAN DELWAL LABORATORY PVT. LTD 118 ITR 531 AND GUJARAT HIGH COURT IN CASE OF SAURASHTRA CEMENT AND CHEMICAL INDUSTRIES LTD. VS. CIT 123 ITR 669 HELD IN PARA 17 AS UNDER:- FROM THE RESUME OF THE CASE LAW DISCUSSED ABOVE IT BECOMES CRYSTAL CLEAR THAT THE PROVISIONS OF 80G OF THE ACT WOULD BE ATTRACTED ONLY IF THE DONATION IS IN CASH AND NOT IN KIND. HOWEVER, IN ORDER TO DECIDE WHETHER A DONATION IS IN CASH OR IN KIND, THE COURT MUST LOOK TO THE SUBSTANCE OF THE DONATION AND NOT MERELY TO THE FOR M IN WHICH IT IS ITA 298/JP/2014 M/S NASH FASHIONS VS. CIT-I 6 MADE. IF ON THE FACTS, HAVING REGARD TO THE SUBSTAN CE OF THE TRANSACTION, THE COURT IS SATISFIED THAT IT IS ESSE NTIALLY A DONATION IN CASH, THE REBATE UNDER S. 80G WOULD BE ADMISSIBLE TO THE ASSESSEE. IF IT IS A DONATION IN KIND, PURE AND SIMPLE, IT WOULD CLE ARLY FALL OUTSIDE THE PURVIEW OF S. 80G OF THE ACT. NONE OF THE DECISIONS CITED ABOVE TOOK THE VIEW THAT A TRANSACTION OF DONATION IN KIND WOUL D QUALIFY FOR REBATE UNDER S. 80G IF THE ACT. IF SUCH WAS THE VIEW OF THE BOMBAY HIGH COURT IN ASSOCIATED CEMENT COMPANY'S CASE (1968) 68 ITR 47 8, THERE WAS NO NEED FOR THE COURT TO EXAMINE THE SUBSTANCE OF THE TRANSACTION FOR THE PURPOSE OF DECIDING WHETHER IT WAS A TRANSACTION IN C ASH. IT WAS ONLY AFTER THE COURT CAME TO THE CONCLUSION THAT IN SUBS TANCE IT WAS A TRANSACTION IN CASH THAT IT HAD UPHELD THE ASSESSEE 'S CLAIM FOR REBATE UNDER S. 15B OF THE INDIAN IT ACT, 1922. THE MYSORE H IGH COURT AS WELL AS THE ANDHRA PRADESH HIGH COURT HAVE FOLLOWED THE V IEW EXPRESSED BY THE BOMBAY HIGH COURTS IN THE AFORESAID CASE. THEY T OO HAVE TAKEN THE VIEW THAT IF IT IS FOUND THAT IN SUBSTANCE THE TRANS ACTION IS A MONEY TRANSACTION, THE PROVISIONS OF S. 88 (NOW S. 80G) O F THE IT ACT, 1961, WOULD BE ATTRACTED. HOWEVER, IT DOES APPEAR FROM PARA . 61 OF THE MEMORANDUM EXPLAINING THE PROVISIONS OF THE FINANCE BILL, 1976, THAT AN IMPRESSION WAS CREATED THAT THE JUDICIAL PRONOUNC EMENTS WENT TO THE LENGTH OF SAYING THAT EVEN DONATIONS IN KIND WOU LD FALL WITHIN THE PURVIEW OF S. 80G OF THE ACT. ACCORDING TO THE OBSER VATIONS OF THE ANDHRA PRADESH HIGH COURT WE ARE OF THE OPINION THAT NONE OF THE JUDICIAL PRONOUNCEMENTS, REFERRED TO EARLIER, HAVE LAID DOWN IN CATEGORICAL TERMS THAT DONATIONS IN KIND FALL WITHIN THE PURVIEW OF S. 80G OF THE ACT. ALL THAT THE DECISIONS HAVE STATED IS THAT THE COURTS MUST EXAMINE THE SUBSTANCE OF THE DONATIONS AND IF ON AN EXAMINATION ITA 298/JP/2014 M/S NASH FASHIONS VS. CIT-I 7 OF THE RELEVANT EVIDENCE IT FINDS THAT THE DONATION IS OF A SUM OF MONEY, IT MAY GRANT REBATE SOUGHT BY THE ASSESSEE. THE INSERTION OF EXPLN. 5 BY THE FINANCE ACT, 1976, W.E.F. 1ST APRIL, 1976, WAS MERELY TO CLARIFY THIS DOUBT WHICH HAD ARISEN ON ACCOUNT OF AN ERRONEOUS READING OF THE JUDICIAL PRONOUNCEMENTS ON THE POINT. ASSUMI NG FOR THE SAKE OF ARGUMENT THAT EXPLN. 5 IS RETROSPECTIVE IN EFFECT, AS CONTENDED BY THE LEARNED COUNSEL FOR THE REVENUE, IT DOES NOT ALTER THE POSITION INASMUCH AS EVEN BEFORE THE INSERTION OF THE EXPLAN ATION THE VIEW WAS THAT ONLY DONATIONS IN CASH WOULD QUALIFY FOR REBATE UNDER S. 80G OF THE ACT. WE THEREFORE, DO NOT CONSIDER IT NECESSARY TO EXAMINE IN DETAIL THE CONTENTION OF THE LEARNED COUNSEL FOR THE REVENUE T HAT EXPLN. 5 INSERTED BY THE FINANCE ACT, 1976, HAS RETROSPECTIV E APPLICATION. EVEN WITHOUT THE INSERTION OF EXPLN. 5, AS POINTED OUT EA RLIER, COURTS HAVE TAKEN THE VIEW THAT S. 80G IS ATTRACTED ONLY IF THE DONATION IS IN CASH AND NOT IN KIND. THE ONLY RIDER THE COURTS PLACED WAS THAT BEFORE CONCLUDING WHETHER THE DONATION IN QUESTION WAS IN CA SH OR IN KIND, THE SUBSTANCE OF THE DONATION SHOULD BE LOOKED INTO AND IF IT IS FOUND THAT IN SUBSTANCE IT IS A DONATION IN CASH, THE BENEFIT OF SECTION 80G SHOULD BE EXTENDED TO THE ASSESSEE. FROM READING OF THE ENTIRE JUDGEMENT IT CAN BE SEEN THAT IF THE SUBSTANCE OF A TRANSACTION IS A MONEY TRANSACTION, DEDUCTION U/S 80G IS ALLOWABLE. HOWEVER, SINCE IN THE CASE BEFORE THE HIGH COURT, TH E DONATION WAS OF SHARES AND THERE WAS NO FINDING OF FACT THAT THE TRA NSACTION OF DONATION WAS IN SUBSTANCE IN CASH, DEDUCTION WAS NOT ALLOWED TO THE ASSESSEE. ITA 298/JP/2014 M/S NASH FASHIONS VS. CIT-I 8 IN CASE OF THE DECISION OF SUPREME COURT IN 187 ITR 308 AND GUJARAT HIGH COURT IN 115 CTR 120 RELIED BY CIT, THE DONATION WAS O F SHARES AND THEREFORE IT WAS HELD THAT DEDUCTION U/S 80G IS NOT AVAILABLE. HOWEVER, THE SUPREME COURT IN ITS DECISION APPROVED THE DECISION OF GUJARAT HIGH COURT IN CIT VS. SMT. DHIRAJ BEN R. AMIN 141 ITR 875 (SUPRA ). THUS, THE LAW IS THAT IF IN SUBSTANCE THE TRANSACTION IS A MONEY TRA NSACTION DEDUCTION U/S 80G IS ALLOWABLE. TO EXAMINE WHETHER A DONATION IN SUBSTANCE IS A MONEY TRANSACTION OR NOT, REFERENCE CAN BE MADE TO THE DECISION OF BOMBA Y HIGH COURT IN CIT VS. ASSOCIATED CEMENT CO. LTD. 68 ITR 478. IN THIS C ASE UNIVERSITY OF BOMBAY WROTE TO THE CHAIRMAN OF THE ASSESSEE CO. A L ETTER SAYING THAT IT IS CARRYING OUT IMPORTANT LABORATORY EXPERIMENTS FOR W HICH IT REQUIRE ROTTERY EXPERIMENTAL KILN. SINCE THE COMPANY WAS FABRICATIN G THE KILN, ITS BOARD OF DIRECTOR PASSED A RESOLUTION SANCTIONING RS.6,600/- BEING THE COST OF THE PILOT KILN MANUFACTURED FOR THE ASSESSEE AND SUPP LIED THE KILN. IN THESE FACTS IT WAS HELD THAT HAVING REGARD TO THE NATURE O F TRANSACTION, IN SUBSTANCE IT WAS A TRANSACTION WHERE A SUM OF RS.6,60 0/ - WAS PAID BY THE ASSESSEE COMPANY AS DONATION TO THE UNIVERSITY, ENT ITLED FOR DEDUCTION U/S 15B OF THE INCOME TAX ACT, 1922. SIMILARLY, IN CIT V S. BANGALORE WOOLLEN, COTTON & SILK MILLS CO. 91 ITR 166 WHERE CLOTHS MAN UFACTURED BY IT WERE DONATED TO DIFFERENT INSTITUTION OF THE VALUE OF RS .6,834/- THE MYSORE HIGH ITA 298/JP/2014 M/S NASH FASHIONS VS. CIT-I 9 COURT HELD THAT THE SUBSTANCE OF THE TRANSACTION RE VEALS THAT WHAT IS DONATED IS A SUM OF MONEY AND THEREFORE THE REBATE MUST BE GRANTED TO THE ASSESSEE. AGAIN IN CASE OF CIT VS. AMONBOLU RAJ IAH 102 ITR 403 (AP) WHERE THE ASSESSEE AGREED TO DONATE NECESSARY FUNDS FOR CONSTRUCTION OF SCHOOL BUILDING FOR ZILA PARISHAD AND ADVANCED VARI OUS AMOUNTS FROM TIME TO TIME TO THE CONTRACTOR FOR THE PURPOSE OF CONSTR UCTION OF SCHOOL BUILDING ON A SITE BELONGING TO ZILA PARISHAD IT WAS HELD THA T ARRANGEMENT ITSELF INDICATES THAT THE INTENTION WAS TO DONATE THE MONEY EARMARKED FOR THE PURPOSE OF CONSTRUCTING A SCHOOL BUILDING AND THERE FORE THE TRIBUNAL IS RIGHT IN REACHING THE CONCLUSION THAT IT WAS A DONAT ION OF MONEY AND NOT IN KIND AND ONCE IT IS FOUND THAT IT WAS A DONATION OF A SUM OF MONEY THE CASE WOULD SQUARELY FALL U/S 88 OF THE INCOME TAX ACT (NOW SECTION 80G). IN CASE OF SAURASHTRA CEMENT AND CHEMICAL INDUSTRIE S LTD. VS. CIT 123 ITR 669 ASSESSEE DONATED CEMENT BAGS MANUFACTURED BY IT AND IT WAS HELD THAT TRANSACTION IN SUBSTANCE WAS A MONEY TRANSACTIO N AND THE DONATION WAS VIRTUALLY A DONATION IN CASH. IN THE ABOVE BACKDROP, IF THE FACTS OF THE ASSESSEE S CASE ARE ANALYSED IT CAN BE NOTED THAT THE ASSESSEE MADE PAYMENT BY CHEQ UE TO THE VARIOUS SUPPLIER OF THE EQUIPMENT AND THEREAFTER THE SUPPLI ERS SUPPLIED THE EQUIPMENT DIRECTLY TO THE MEDICAL SUPERINTENDENT, S MS HOSPITAL. AT THE TIME OF PLACING OF THE ORDER BY THE SMS HOSPITAL TO THE SUPPLIER, 10% ITA 298/JP/2014 M/S NASH FASHIONS VS. CIT-I 10 PAYMENT IS MADE IN ADVANCE AND THE REMAINING 90% PA YMENT WAS MADE AFTER INSTALLATION OF THE EQUIPMENT TO THE SATISFAC TION OF THE MEDICAL SUPERINTENDENT, SMS HOSPITAL. THIS IS EVIDENT FROM T HE VARIOUS DOCUMENTS PLACED AT PAPER BOOK THEREFORE, ONLY BECAUSE INVOICE S ARE RAISED BY THE SUPPLIER IN THE NAME OF THE ASSESSEE WOULD NOT MAKE ANY DIFFERENCE PARTICULARLY WHEN ALL OTHER CORRESPONDENCES BY THE S UPPLIER IS WITH MEDICAL SUPERINTENDENT, SMS HOSPITAL. ALL THESE FACTS SHOW T HAT THE TRANSACTION IN SUBSTANCE IS A MONEY TRANSACTION AND THE DONATION I S VIRTUALLY A DONATION IN CASH. THEREFORE, CONSIDERING THE VARIOUS DECISION S STATED SUPRA ASSESSEE IS ENTITLED TO DEDUCTION U/S 80G. OTHERWISE ALSO IN COURSE OF ASSESSMENT PROCEEDINGS, ASSESSEE VIDE LETTER DT. 25.11.2011 HAS EXPLAINED THESE FACTS AND CONSID ERING THE SAME AO ALLOWED DEDUCTION U/S 80G. THEREFORE, CIT HAS ERRED I N OBSERVING THAT THERE IS NON APPLICATION OF MIND, NON VERIFICATION OF FACTS AND NON APPLICATION OF CORRECT PROVISION OF LAW BY THE AO. TO WHAT EXTENT, THE AO SHOULD MAKE INVESTIGATION IS A MATTER LEFT TO THE WI SDOM OF THE AO U/S 143(3). THEREFORE, THE ORDER PASSED BY CIT U/S 263 IS NOT VALID IN LAW. FURTHER, WHERE ANOTHER VIEW IS POSSIBLE, REVISION IS NOT PERMISSIBLE. FOR THIS, RELIANCE IS PLACED ON FOLLOWING CASES:- ITA 298/JP/2014 M/S NASH FASHIONS VS. CIT-I 11 (I) CIT VS. NEW DELHI TELEVISION LTD. (2013) 360 ITR 44/ 94 DTR 21 (DEL.)(HC) (II) MALABAR INDUSTRIAL CO. LTD. VS. CIT 243 ITR 83 (SC) IN VIEW OF ABOVE, THE ORDER PASSED BY CIT U/S 263 DIR ECTING THE AO TO WITHDRAW THE DEDUCTION ALLOWED BY HIM U/S 80G IS ILLEG AL AND BAD IN LAW, HIS ORDER BE SET ASIDE AND THE ORDER OF AO ALLOWING DEDUCTION U/S 80G BE UPHELD. 6. AT THE OUTSET, THE LEARNED C.I.T. D.R. VEHEMENTLY SUPPORTED THE ORDER OF THE LEARNED CIT-I ON THE BASIS OF EXPLANAT ION-5 OF SECTION 80G OF THE ACT. 7. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. IT IS UNDISPUTED FACT THAT THE ASSESSEE HAD SUBMITTED LETTER ISSUED BY THE M/S RAJASTHAN MEDICA L RELIEF SOCIETY, S.M.S. HOSPITAL, JAIPUR DATED 24/3/2009 BEFORE THE ASSESSI NG OFFICER DURING THE ASSESSMENT PROCEEDINGS VIDE ITS LETTER DATED 30/6/2 011. THE LEARNED ASSESSING OFFICER HAD APPLIED HER MIND AND ALLOWED T HE DEDUCTION U/S 80G OF THE ACT AS CLAIMED BY THE ASSESSEE IN COMPUTATIO N OF INCOME. THE FACTS THAT THE APPELLANT HAD MADE PAYMENT TO THE SUPPLIER DIRECTLY ON BEHALF OF M/S RAJASTHAN MEDICAL RELIEF SOCIETY, S.M.S. HOSPIT AL, JAIPUR, WERE BEFORE THE ASSESSING OFFICER. NO NEW FACTS WERE FURNISHED BE FORE THE LEARNED CIT, THEREFORE, WE FIND THAT ON SAME FACTS AND CIRCUMSTAN CES OF THE CASE, THE ITA 298/JP/2014 M/S NASH FASHIONS VS. CIT-I 12 LEARNED CIT HAD DIFFERENT OPINION ON DEDUCTION U/S 80G OF THE ACT. ON THE BASIS OF CHANGE OF OPINION, THE LEARNED CIT IS NOT EMPOWERED TO SET ASIDE THE ORDER OF THE ASSESSING OFFICER U/S 263 OF THE A CT. FURTHER THE GENUINENESS OF THIS DONATION HAS NOT BEEN DOUBTED B Y THE REVENUE. THE PAYMENTS WAS MADE BY THE APPELLANT ON BEHALF OF THE DONEE TO MAKE AVAILABLE EQUIPMENT WITHOUT GOING TO THE TECHNICAL F ORMALITIES OF THE STATE GOVERNMENT FOR PURCHASING THE EQUIPMENTS, HAD MADE AVAILABLE THESE EQUIPMENTS DIRECTLY. IT HAS BEEN CERTIFIED BY THE M EDICAL SUPERINTENDENT OF M/S RAJASTHAN MEDICAL RELIEF SOCIETY, S.M.S. HOSPIT AL, JAIPUR, THAT THE APPELLANT HAD MADE PAYMENT ON BEHALF OF THE SOCIETY . THE LEARNED AR RELIED UPON THE DECISION IN THE CASE OF SAURASHTRA CEMENT AND CHEMICAL INDUSTRIES LTD. VS. CIT AND CIT VS. SMT. DHIRJA BEN R. AMIN (SUPRA) ARE SQUARELY APPLICABLE IN THIS CASE OF THE ASSESSEE. T HEREFORE, WE SET ASIDE THE ORDER OF THE LEARNED CIT-I, JAIPUR PASSED U/S 2 63 OF THE ACT. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 05/11/2014. SD/- SD/- (R.P. TOLANI) (T.R. MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER JAIPUR, DATED : 05 TH NOVEMBER, 2014 * RANJAN ITA 298/JP/2014 M/S NASH FASHIONS VS. CIT-I 13 COPY FORWARDED TO :- 1. M/S NASH FASHIONS (INDIA) LTD., JAIPUR 2. THE CIT-I, JAIPUR 3. THE CIT (A) 4. THE CIT 5. THE D/R GUARD FILE (I.T.A. NO. 298/JP/2014) BY ORDER, AR ITAT JAIPUR.