NASH FASHIONS (INDIA) LTD., Jaipur V. DEPUTY COMMISSIONER OF INCOME TAX, JAIPUR

ITA 346/JPR/2018

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 0685 (ITAT-JAIPUR)
• Duration Of Justice: 6 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2013-2014
• Appeal Filed On: 13-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VARINDER MEHTA
• Assessee Lawyers: M L BORAD
• Keywords: Gift; Opportunity of being heard; Principle of natural justice; Question of law
• Section: 143(3); 80G; 201(1); 263; 139

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKY JKO] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA-@ ITA. NO. 346/JP/2018 FU/KZKJ.K O'K Z@ ASSESSMENT YEARS : 2013-14 NASH FASHION (INDIA) LTD. G-169-170, EPIP, SITAPURA, TONK ROAD, JAIPUR. CUKE VS. THE DCIT, CIRCLE- II, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN/GIR NO.: AABCN 0909 K VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ L S@ ASSESSEE BY : SHRI M. L. BORAD (ADV.) JKTLO DH VKSJ LS @ REVENUE BY : SHRI VARINDER MEHTA (CIT) LQUOKBZ DH RKJH[ K@ DATE OF HEARING : 30/08/2018 MN?KKS'K.KK DH RKJH[ K@ DATE OF PRONOUNCEMENT : 01/10/2018 VKNS'K@ ORDER PER: VIKRAM SINGH YADAV, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF LD. CIT(A)-I, JAIPUR DATED 05.01.2018 FOR THE ASSESSMEN T YEAR 2013-14 WHEREIN THE ASSESSEE HAS TAKEN THE FOLLOWING GROUND S OF APPEAL:- 1. THAT THE LEARNED COMMISSIONER (APPEALS) ERRED I N SUSTAINING DISALLOWANCE OF DEDUCTION CLAIMED BY THE ASSESSES U /S. 80G OF THE I.T. ACT AT RS.1,27,67,676/- AND THEREBY UPHOLDING ADDIT ION OF RS.1,27,67,676/- MADE BY THE AO TO THE TOTAL INCOME OF ASSESSEE, ITA NO. 346/JP/2018 NASH FASHION (INDIA) LTD. VS. DCIT 2 WHICH SUSTAINING OF DISALLOWANCE OF DEDUCTION CLAIM ED BY THE ASSESSEE U/S. 80G AND CONSEQUENTIAL UPHOLDING OF ADDITION OF RS.1,27,67,676/- MADE BY THE AO IS MOST ARBITRARY, UNJUST, UNTENABLE AND BAD IN FACT AND IN LAW AND IN THE ALTERNATIVE IT IS HIGHLY EXCESSIV E W.R.T. FACTS AND CIRCUMSTANCES OF THE CASE. 2. THAT THE LEARNED COMMISSIONER (APPEALS) GROSSLY ERRED IN NOT FOLLOWING THE JUDGMENT OF HON'BLE JURISDICTIONAL HI GH COURT PASSED ON 11.08.2015 IN ASSESSEE'S OWN CASE FOR ASSESSMENT YE AR 2009-10 IN DB INCOME TAX APPEAL NO.54/2015 WHEREIN THE HON'BLE CO URT DISMISSED THE DEPARTMENTAL APPEAL AND MAINTAINED THE ORDER OF INCOME TAX APPELLATE TRIBUNAL DATED 05.11.2014 ALLOWING DEDUCT ION U/S. 80G OF THE I.T. ACT TO THE ASSESSEE. 3. THAT SUSTAINING BY THE LEARNED COMMISSIONER (APP EALS) OF DISALLOWANCE OF DEDUCTION CLAIMED BY THE ASSESSES U /S. 80G OF THE I.T. ACT AND CONSEQUENTIAL ADDITION OF RS.1,27,67,676/- MADE BY THE AO TO THE RETURNED TOTAL INCOME AND THEREBY SUSTAINING LE VY OF ADDITIONAL TAX AND CHARGING OF INTEREST THEREON UNDER DIFFERENT SE CTIONS CONSEQUENT TO SUCH ADDITIONS IS UNJUST AND IN THE ALTERNATIVE EXC ESSIVE. 4. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND UNDER THE LAW UPHOLDING BY THE LEARNED COMMISSIONER (APPEALS) OF THE DISALLOWANCE OF RS.36,00,008/- MADE BY THE AO U/S.40(A)(IA) OF THE I.T. ACT AND CONSEQUENTLY ADDING THE SAME IN THE TOTAL INCOME OF ASSESSEE IS MOST ARBITRARY, UNJUST AND IN THE ALTERNATIVE EXCESSIVE. 2. GROUND NOS. 1 TO 3 OF ASSESSEES APPEAL EFFECTIV ELY RELATES TO DISALLOWANCE OF DEDUCTION CLAIMED BY THE ASSESSEE U /S 80G OF THE ACT AMOUNTING TO RS. 1,27,67,676/-. BRIEFLY, THE FACTS OF THE CASE ARE THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE AS SESSING OFFICER OBSERVED THAT ON PERUSAL OF DETAILS, IT IS NOTICED THAT THE DONATION HAS BEEN MADE OTHERWISE BY WAY OF MONEY WHICH IS NOT AL LOWABLE AS PER ITA NO. 346/JP/2018 NASH FASHION (INDIA) LTD. VS. DCIT 3 PROVISIONS OF SECTION 80G(5D) OF THE ACT. THE ASSES SING OFFICER THEREAFTER REFERRED TO THE EXPLANATION 5 TO SECTION 80G WHEREIN IT IS STATED THAT NO DEDUCTION SHALL BE ALLOWED UNDER THI S SECTION IN RESPECT OF ANY DONATION UNLESS SUCH DONATION IS A SUM OF MO NEY. THE AO THEREAFTER REFERRED TO THE DECISION OF HONBLE RAJA STHAN HIGH COURT AND HELD THAT THE DEPARTMENT HAS NOT ACCEPTED THE FINDI NG OF THE HONBLE RAJASTHAN HIGH COURT AND HAS FILED AN S.L.P. BEFORE THE HONBLE SUPREME COURT HENCE, THE MATTER HAS NOT ACHIEVED FI NALITY. ACCORDINGLY, THE DEDUCTION CLAIMED U/S 80G OF THE ACT AMOUNTING TO RS. 1,27,67,676/- WAS DISALLOWED BEING THE DONATION MADE IN KIND AND NOT IN CASH AS PER EXPLANATION 5 TO SECTION 80G OF THE ACT. 3. BEING AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD. CIT(A). THE LD. CIT(A) REFERRING TO THE DEC ISION OF THE COORDINATE BENCH AND THE DECISION OF THE HONBLE RAJASTHAN HIG H COURT HELD THAT THE ISSUE BEFORE THE COORDINATE BENCH WAS IN THE CO NTEXT OF REVISION PROCEEDINGS INITIATED BY THE PR. CIT, JAIPUR U/S 26 3 OF THE ACT AND AGAINST THE SAID ORDER, THE DEPARTMENT HAS GONE IN APPEAL BEFORE THE HONBLE RAJASTHAN HIGH COURT AND THE SAME WAS DISMI SSED AS NO SUBSTANTIAL QUESTION OF LAW EMERGES IN THE SAID APP EAL. THE LD. CIT(A) ACCORDINGLY HELD THAT THE IMPUNGED CASE IS NOT COV ERED BY THE DECISION OF HONBLE RAJASTHAN HIGH COURT AS CLAIMED BY THE A SSESSEE. THE LD. CIT(A) THEREAFTER REFERRED TO THE FINANCE BILL, 197 6 THROUGH WHICH EXPLANATION 5 WAS INSERTED IN SECTION 80G AND HELD THAT THE SAID EXPLANATION IS CLEARLY APPLICABLE TO THE FACTS OF T HE INSTANT CASE. REGARDING VARIOUS DECISIONS RELIED UPON BY THE LD. AR, THE LD. CIT(A) HELD THAT ALL THESE DECISIONS ARE DISTINGUISHABLE A ND APPEARS PRIOR TO THE ITA NO. 346/JP/2018 NASH FASHION (INDIA) LTD. VS. DCIT 4 JUDGMENT OF THE HONBLE SUPREME COURT IN CASE OF H.H. SRI RAMA VERMA VS. CIT 57 TAXMAN 149 WHEREIN IT WAS HELD THAT THERE HAS BEEN A CONFLICT OF OPINION BETWEEN THE VARIOUS HIG H COURTS AND SOME OF THE HIGH COURTS HAVE TAKEN THE VIEW THAT SUBSTA NCE OF THE NATURE OF THE TRANSACTION SHOULD BE TAKEN INTO ACCOUNT AND IT WAS NOT NECESSARY THAT THE DONATION MUST BE IN CASH. AS AGAINST THE SAID VIEW, SOME OTHER HIGH COURTS DOES NOT CONTEMPLATE ANY DONATION IN KIND INSTEAD THE EXPRESSION SUM RELATES TO THE CASH AMOUNT OF MONEY WHICH MAY HAVE BEEN DONATED BY THE ASSESSEE. THE HONBLE SUPR EME COURT AFTER CONSIDERING THE CONFLICTING VIEWS OF THE VARIOUS HI GH COURTS HELD THAT SECTION 80G(2)(A) CONTEMPLATES ONLY CASH AMOUNT OF MONEY AS DONATION, FOR CLAIMING RELIEF OF DEDUCTION AND IT D OES NOT REFER TO ANY DONATION MADE IN KIND. IT WAS FURTHER HELD BY THE HONBLE SUPREME COURT THAT AFTER INSERTION OF THE AFORESAID EXPLANA TION, THERE CANNOT BE ANY DOUBT THAT FOR PURPOSES OF CLAIMING DEDUCTION, ONLY CASH AMOUNTS WHICH MAY HAVE BEEN DONATED WOULD BE TAKEN INTO ACC OUNT. THE LD. CIT(A) FURTHER REFERRED TO THE DECISION OF HONBLE RAJASTHAN HIGH COURT IN CASE OF CIT VS. GAJ SINGH REPORTED IN 211 ITR 785 WHICH HAS FOLLOWED THE ABOVE DECISION OF THE HONBLE SUPR EME COURT. FURTHER, THE LD. CIT(A) REFERRED TO THE DECISION OF HONBLE PUNJAB AND HARYANA HIGH COURT IN CASE OF NAHAR SPINNING MILLS VS. CIT REPORTED IN 49 TAXMANN.COM 565 WHEREIN DONATION BY WAY OF CLOTHES SENT TO PRIME MINISTER RELIEF FUND FOR GUJARAT EARTHQUAKE RELIEF WAS HELD NOT ELIGIBLE FOR DEDUCTION U/S 80G R.W. EXPLANATION-5 OF THE ACT . ACCORDINGLY, THE LD. CIT(A) UPHELD THE DEDUCTION SO MADE BY THE ASSESSIN G OFFICER. NOW, THE ASSESSEE IS IN APPEAL BEFORE US. ITA NO. 346/JP/2018 NASH FASHION (INDIA) LTD. VS. DCIT 5 4. IN HIS SUBMISSION, THE LD. AR HEAVILY RELIED ON THE DECISION OF THE CO-ORDINATE BENCH IN ASSESSEES OWN CASE FOR AY 200 9-10 AND SUBMITTED THAT THE MATTER IS SQUARELY COVERED BY TH E SAID DECISION OF THE CO-ORDINATE BENCH WHICH HAS BEEN AFFIRMED BY TH E HONBLE RAJASTHAN HIGH COURT, AND WHICH HAS BEEN FOLLOWED B Y THE COORDINATE BENCH SUBSEQUENTLY IN AY 2012-13. FURTHER, THE LD. AR HAS REFERRED TO THE WRITTEN SUBMISSIONS WHICH ARE REPRODUCED AS UND ER:- 1. THAT THE OBSERVATIONS OF THE LEARNED CIT(A) TH AT THE DONATION GIVEN IS OTHERWISE THAN BY WAY OF MONEY IS NOT CORRECT. T HE FACTUAL POSITION IS THAT ON THE REQUEST OF M/S RAJASTHAN MEDICARE RELIE F SOCIETY, S.M.S. HOSPITAL, JAIPUR AS WELL AS SPMCHI, JAIPUR, THE CHE QUES WERE ISSUED IN FAVOUR OF SUPPLIER OF MEDICAL EQUIPMENTS, WHO DIREC TLY SUPPLIED AND INSTALLED THE EQUIPMENTS IN BOTH THE HOSPITALS. TO SUPPORT ITS CLAIM THAT DONATION GIVEN BY IT IS IN MONEY AND NOT IN KIND, T HE ASSESSEE COMPANY SUBMITTED CERTIFICATE ISSUED BY HOSPITAL AUTHORITES CERTIFYING THAT TWO DONATIONS, ONE OF RS. 31,23,590/- IS MADE TO RAJAST HAN MEDICARE RELIEF SOCIETY (PAN: AAATR5094F) SMS HOSPITAL, JAIPUR AND OTHER OF RS. 96,44,086/- IS MADE TO RAJASTHAN MEDICARE RELIEF SO CIETY (PAN: AAABR 0418D) S.P.M.C.H.I. JAIPUR I.E. TOTAL DONATION OF R S. 1,27,67,676/-. 2. THAT FIRSTLY LIST OF MEDICAL EQUIPMENTS REQUIRED BY HOSPITAL AUTHORITIES WAS SENT BY RAJASTHAN MEDICARE RELIEF S OCIETY TO THE SUPPLIERS OF MEDICAL EQUIPMENTS AND SIMULTANEOUSLY AND SEPARATELY THE ASSESSEE COMPANY SENT THE PAYMENT BY WAY OF ACC OUNT PAYEE CHEQUES ISSUED BY IT IN FAVOUR OF THE SUPPLIERS OF MEDICAL EQUIPMENTS. ITA NO. 346/JP/2018 NASH FASHION (INDIA) LTD. VS. DCIT 6 3. IN THE ABOVE BACKDROP, IF THE FACTS OF THE ASSES SEE'S CASE ARE ANALYZED, IT CAN BE NOTED THAT THE ASSESSEE MADE PA YMENT BY CHEQUE TO THE VARIOUS SUPPLIERS OF THE EQUIPMENT AN D THEREAFTER THE SUPPLIERS SUPPLIED THE EQUIPMENT DIRECTLY TO THE ME DICAL SUPERINTENDENT OF BOTH HOSPITALS. AT THE TIME OF PL ACING OF THE ORDER BY THE HOSPITAL AUTHORITIES TO THE SUPPLIER, 10% PA YMENT IS MADE IN ADVANCE AND THE REMAINING 90% PAYMENT IS MADE AFTER INSTALLATION OF THE EQUIPMENT TO THE SATISFACTION OF THE MEDICAL SUPERINTENDENT OF THE HOSPITAL. AS SUCH THE FACT REMAINS IS THAT M EDICAL EQUIPMENTS ARE DIRECTLY SENT TO HOSPITAL AUTHORITIES AND INSTA LLATION IS ALSO MADE BY THE SUPPLIERS BUT THE INVOICE IS ISSUED BY SUPPL IER IN THE NAME OF THE COMPANY. THIS IS EVIDENT FROM THE VARIOUS PAPER S/DOCUMENTS FILED BY THE AO. THEREFORE, ONLY BECAUSE INVOICES A RE RAISED BY THE SUPPLIER IN THE NAME OF THE ASSESSEE WOULD NOT MAKE ANY DIFFERENCE PARTICULARLY WHEN ALL OTHER CORRESPONDENCES BY THE SUPPLIER IS WITH MEDICAL SUPERINTENDENT OF THE HOSPITALS. ALL THESE FACTS SHOW THAT THE TRANSACTION IN SUBSTANCE IS A MONEY TRANSACTION AND THE DONATION IS VIRTUALLY A DONATION IN CASH. 4. THAT THE LEARNED AO FAILED TO CONSIDER THAT THE ASSESSEE DONOR IS NOT THE MANUFACTURER OF THE MEDICAL EQUIPMENTS WHIC H WERE INSTALLED IN THE ABOVE MENTIONED GOVERNMENT OWNED HOSPITALS I N JAIPUR. THE FACTUAL POSITION IS THAT AT THE INSTANCE OF HOSPITA L AUTHORITIES, THE MONEY FOR PURCHASE OF THE EQUIPMENTS/ITEMS FOR BOTH THE HOSPITALS WAS PAID BY THE APPELLANT ASSESSEE TO THE MANUFACTU RERS OF THOSE MACHINES BY WAY OF ACCOUNT PAYEE CHEQUES. MEANING T HEREBY WHAT THE APPELLANT ASSESSEE DONATED WAS MONEY I.E. CASH AND NOT ITA NO. 346/JP/2018 NASH FASHION (INDIA) LTD. VS. DCIT 7 DONATION IN KIND. BESIDES THE MEDICAL EQUIPMENTS WE RE DIRECTLY SENT BY THE MANUFACTURERS TO THE ABOVE MENTIONED HOSPITA LS AND THE SAME WERE INSTALLED AT THE HOSPITALS WITH THE PRIOR CONSENT OF THE HOSPITAL AUTHORITIES AND THE MEDICAL EQUIPMENTS AND MACHINERIES WERE INSTALLED IN THE HOSPITAL TO PROVIDE MEDICAL A SSISTANCE TO THE POOR PEOPLE. 5. THAT THE AO FAILED TO NOTE THAT IN THIS CASE ON THE ADVICE OF THE HOSPITAL AUTHORITIES THE MONEY WAS SENT DIRECTLY BY THE ASSESSEE TO THE MANUFACTURERS OF THE MEDICAL EQUIPMENTS AND MAC HINERIES FOR AND ON BEHALF OF BOTH THE HOSPITALS AND THERE WAS A DUE CONFIRMATION BY HOSPITAL AUTHORITIES IN REGARD TO M EDICAL EQUIPMENTS AND MACHINERIES BEING INSTALLED AT THE ABOVE MENTIO NED HOSPITALS AND AMOUNT HAVING BEEN PAID BY ACCOUNT PAYEE CHEQUE BY THE ASSESSEE TO THE MANUFACTURERS. IT IS FURTHER SUBMIT TED THAT THE AO SHOULD HAVE APPRECIATED THAT AFTER INSTALLATION OF THE MACHINES IN HOSPITALS THERE WAS A COUNTER CHECK BY THE GOVERNME NT AUTHORITIES I.E. MEDICAL SUPERINTENDENT ETC. 6. THAT THE AO FAILED TO TAKE INTO CONSIDERATION TH E FACT THAT SO FAR AS ASSESSEE IS CONCERNED, HE HAS PAID THE AMOUNT OF DONATION BY WAY OF ACCOUNT PAYEE CHEQUE ISSUED TO THE MANUFACTU RERS ON THE DIRECTIONS OF HOSPITAL AUTHORITIES AND SOON AFTER G ETTING THE CHEQUE FROM THE ASSESSEE, THE MANUFACTURERS DIRECTLY SUPPL IED MACHINERY AND EQUIPMENTS TO THE HOSPITALS AND NOT TO THE ASSESSEE. TO MAKE THE THINGS CLEAR, IT IS RESPECTFULLY SUBMITTED THAT ON THE ADVISE OF THE HOSPITAL AUTHORITIES, THE ASSESSEE ISSUED A CHEQUE IN FAVOUR OF THE ITA NO. 346/JP/2018 NASH FASHION (INDIA) LTD. VS. DCIT 8 MANUFACTURERS TO DIRECTLY SUPPLY THE DESIRED MACHIN ERY AND EQUIPMENTS TO HOSPITALS. AFTER GETTING THE CHEQUE F ROM THE ASSESSEE THE MANUFACTURERS DIRECTLY SENT THE MACHINERY AND E QUIPMENTS TO THE HOSPITALS. THE MACHINERY AND EQUIPMENTS SENT BY MANUFACTURERS WERE DIRECTLY DELIVERED TO THE HOSPITAL AUTHORITIES AND ALSO GOT INSTALLED IN THE HOSPITAL PREMISES. THE HON'BLE BEN CH WILL SEE THAT AT NO STAGE EQUIPMENTS ARE DELIVERED TO THE ASSESSEE C OMPANY. MOREOVER AFTER HAVING MADE THE PAYMENTS BY WAY OF C HEQUES TO THE SUPPLIERS THE ASSESSEE HAS NO CONNECTION WITH THE S UPPLIERS. AS SAID ABOVE, ALL WORKS INCLUDING PLACING OF ORDER OF MEDI CAL EQUIPMENTS REQUIRED BY HOSPITAL AUTHORITIES, TAKING OF DELIVER Y OF GOODS, CHECKING OF QUALITY AND QUANTITY OF THE MEDICAL EQU IPMENTS AND GETTING INSTALLED THESE MEDICAL EQUIPMENTS IN THE H OSPITALS ARE UNDER DIRECT SUPERVISION OF THE MEDICAL SUPERINTEND ENT AND AT NO STAGE ASSESSEE COMES INTO PICTURE NOR HAS HE ANY SA Y IN THE SUPPLY OF THE EQUIPMENTS AND INSTALLATION THEREOF. IN OTHE R WORDS IT CAN BE SAID THAT SO FAR AS ASSESSEE IS CONCERNED IT HAS PA ID THE DONATION IN MONEY I.E. BY WAY OF ISSUING CHEQUE FROM HIS BANK A CCOUNT IN FAVOUR OF SUPPLIERS OF MEDICAL EQUIPMENTS AND IN SUCH A SI TUATION BY NO CANON OF LAW, CAN IT BE SAID THAT DONATION IS IN KI ND OR NOR IN CASH. 7. THAT BOTH THE LOWER AUTHORITIES FAILED TO APPREC IATE THAT EXPLANATION-5 OF SECTION 80G DO NOT MANDATE THAT TH E PAYMENT SHOULD BE MADE DIRECTLY TO THE DONEE. THE ASSESSEE HAD MADE PAYMENTS BY CHEQUE TO SUPPLIERS OF EQUIPMENTS/ITEMS AND GOODS WERE SUPPLIED/INSTALLED AT SMS HOSPITAL AS WELL AS SIR PADAMPAT MATRI AVAM SHISHU SWASTHYA SANSTHAN(S.P.M.C.H.I) JL N MARG, ITA NO. 346/JP/2018 NASH FASHION (INDIA) LTD. VS. DCIT 9 JAIPUR. THE ASSESSEE FILED TWO CERTIFICATES BOTH DA TED 17.08.2013 OF MEDICAL SUPERINTENDENT SIR PADAMPAT MATRI AVAM S HISHU SWASTHYA SANSTHAN(S.P.M.C.H.I) JLN MARG, JAIPUR AND CHIEF ACCOUNTS OFFICER, SMS HOSPITAL JAIPUR REGARDING REC EIPT OF THE EQUIPMENTS/ITEMS. ON SIMILAR FACTS, THE ITAT JAIPUR BENCH IN ASSESSMENT YEAR 2009-10, IN ASSESSEE'S OWN CASE, IN ITA NO.298/JP/2014, RELYING ON JUDGMENTS IN CASE OF CIT VS. ASSOCIATED CEMENT COMPANY LTD., 68 ITR 478 (BOMBAY) AND CIT VS. BANGALORE WOOLLEN COTTON & SILK MILLS, 91 ITR 1 66 (MYSORE), HELD THAT THE TRANSACTION IN SUBSTANCE IS A MONEY T RANSACTION AND THE DONATION IS VIRTUALLY A DONATION OF SUM OF MONE Y AND ASSESSEE IS ENTITLED TO DEDUCTION U/S.80G OF THE I.T. ACT. A S MENTIONED ABOVE APPEAL BY THE DEPARTMENT AGAINST THE ITAT ORD ER HAS BEEN DISMISSED BY THE RAJASTHAN HIGH COURT. IT IS, THERE FORE, PRAYED THAT THE DEDUCTION U/S.80G MAY THEREFORE BE ALLOWED TO T HE ASSESSEE AND DISALLOWANCE MADE BE DELETED. THE ASSESSEE HAD MADE PAYMENTS BY CHEQUES TO THE SUPPLIERS OF EQUIPMENTS ON BEHALF OF DONEE WHICH TANTAMOUNT TO DONATIONS MADE IN A SUM O F MONEY. 8. THAT THE HUMBLE APPELLANT ALSO CRAVES LEAVE TO A RECENT JUDGMENT DATED 15.11.2017 OF ITAT, JAIPUR IN I.T.A.N0.1069/JP/2016 FOR ASSESSMENT YEAR 2012-13 IN ASSESSEE'S OWN CASE WHEREIN THE HON'BLE TRIBUNAL HELD AS UNDER: 'WE ALSO NOTE THAT THIS ISSUE IS FULLY COVERED BY T HE ASSESSEE'S OWN CASE DECIDED BY THE JAIPUR ITAT BENCH, IN ITA NO.29 8/JP/2014 A.Y. 2009-10 WHEREIN IT WAS HELD THAT TRANSACTION IN SUB STANCE IS MONEY TRANSACTION AND THE DONATION IS VIRTUALLY THE DONAT ION IN CASH. ITA NO. 346/JP/2018 NASH FASHION (INDIA) LTD. VS. DCIT 10 THEREFORE, RESPECTFULLY FOLLOWING THE JUDGMENT OF T HE CO-ORDINATE BENCH ON THE SAME IDENTICAL FACTS, WE ALLOW THE APP EAL OF THE ASSESSEE.' 9. THE ASSESSEE VERY RESPECTFULLY SUBMITS THAT THE SUBSTANCE SHOULD BE SEEN AND NOT FORM OF DONATION. THAT IN RELATION TO THE ISSUE AS TO WHETHER A DONATION IN SUBSTANCE IS A MONEY TRANSACT ION OR NOT, THE APPELLANT ASSESSEE CRAVES LEAVE TO REFER TO AND REL Y UPON THE DECISION OF BOMBAY HIGH COURT IN CIT VS. ASSOCIATED CEMENT CO. LTD. 68 ITR 478 . IN THIS CASE, UNIVERSITY OF BOMBAY WROTE TO THE CHAIRMAN OF THE ASSESSEE CO. A LETTER SAYING TH AT IT IS CARRYING OUT IMPORTANT LABORATORY EXPERIMENTS FOR WHICH IT R EQUIRE 'ROTTERY EXPERIMENTAL KILN'. SINCE THE COMPANY WAS FABRICATI NG THE KILN, ITS BOARD OF DIRECTOR PASSED A RESOLUTION SANCTIONING R S.6,600/- WHICH WAS PAID BY THE ASSESSEE COMPANY AS DONATION TO THE UNIVERSITY, ENTITLED FOR DEDUCTION U/S.15B OF THE INCOME TAX AC T, 1922. SIMILARLY, IN CIT VS. BANGALORE WOOLLEN, COTTON & SILK MILLS CO. 91 ITR 166 WHERE CLOTHS MANUFACTURED BY IT WERE DONATED TO DIFFERENT INSTITUTION OF THE VALUE OF RS.6,834/- TH E MYSORE HIGH COURT HELD THAT THE SUBSTANCE OF THE TRANSACTION REVEALS 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 RAJIAH 102 ITR 403 (AP) WHERE THE ASSESSEE AGREED TO DONATE NECESSARY FUNDS FOR CONSTRUCTION OF SCHOOL BUILDING FOR ZILA PARISHAD AND ADVANCED VARIOUS AMOUNTS FROM TIME TO TIME TO T HE CONTRACTOR FOR THE PURPOSE OF CONSTRUCTION OF SCHOOL BUILDING ON A SITE BELONGING TO ZILA PARISHAD IT WAS HELD THAT ARRANGEMENT ITSEL F INDICATES THAT THE INTENTION WAS TO DONATE THE MONEY EARMARKED FOR THE PURPOSE OF ITA NO. 346/JP/2018 NASH FASHION (INDIA) LTD. VS. DCIT 11 CONSTRUCTING A SCHOOL BUILDING AND THEREFORE THE TR IBUNAL IS RIGHT IN REACHING THE CONCLUSION THAT IT WAS A DONATION OF M ONEY 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 T AX ACT (NOW SECTION 80G). IN CASE OF SAURASHTRA CEMENT AND CHEMICAL INDUSTRIES LTD. VS. CIT 123 ITR 669 , THE ASSESSEE DONATED CEMENT BAGS MANUFACTURED BY IT AND IT WAS HELD THAT TRANSACTION IN SUBSTANCE WAS A MONEY TRANSACTION AND THE DONATION WAS VIRTUALLY A DONATION IN CASH. 10. ONE SUCH ISSUE CAME BEFORE THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. SMT. DHIRJA BEN R. AMIN 141 ITR 875 WHERE THE DONATION WAS OF SHARES, THE HON'BLE COURT HELD THAT SINCE DONATION IS IN KIND DEDUCTION UNDER SECTION 80G IS NOT AVAILABLE. HOWEVER, IN THIS DECISION, HON'BLE GUJARAT HIGH COU RT AFTER REFERRING TO THE DECISION OF BOMBAY HIGH COURT IN CASE CIT VS . ASSOCIATED CEMENT CO. LTD. 68 ITR 478, MYSORE HIGH COURT IN CA SE OF CIT VS. BANGALORE WOOLLEN, COTTON & SILK MILLS CO. 91 ITR 1 66, ANDHRA PRADESH HIGH COURT IN CASE OF CIT VS. AMONBOLU RAJI AH 102 ITR 403, BOMBAY HIGH COURT IN CASE OF CIT VS. KHANDELWAL LAB ORATORY 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: THE CONSENSUS OF JUDICIAL OPINION IS THAT THE SUBS TANCE OF THE DONATION SHOULD BE LOOKED INTO AND IF IT IS FOUND THAT IN SU BSTANCE IT IS A DONATION IN CASH, THE BENEFIT OF SECTION 80G SHOULD BE EXTEN DED TO THE ASSESSEE'. ITA NO. 346/JP/2018 NASH FASHION (INDIA) LTD. VS. DCIT 12 FROM READING OF THE ENTIRE JUDGMENT 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 BE FORE THE HIGH COURT, THE DONATION WAS OF SHARES AND THERE WAS NO FINDING OF FACT THAT THE TRANSACTION OF DONATION WAS IN SUBSTANCE I N CASH, DEDUCTION WAS NOT ALLOWED TO THE ASSESSEE. IN CASE OF THE DECISION OF SUPREME COURT IN 187 ITR 308 AND GUJARAT HIGH COURT IN 115 CTR 120 RELIED BY CIT, TH E DONATION WAS OF SHARES AND THEREFORE IT WAS HELD THAT DEDUCTION U/S.80G IS NOT AVAILABLE. HOWEVER, THE SUPREME COURT IN ITS DECISI ON APPROVED THE DECISION OF GUJARAT HIGH COURT IN CIT VS. SRNT. DHI RAJ BEN R. AMIN 141 ITR 875 (SUPRA). THUS THE LAW IS THAT IF IN SUBSTAN CE THE TRANSACTION IS A MONEY TRANSACTION, DEDUCTION U/S.80G IS ALLOWABLE . 11. THAT IT IS RESPECTFULLY SUBMITTED THAT EXPLANAT ION-5 OF SECTION 80G DO NOT MANDATE THAT THE PAYMENT SHOULD BE MADE DIRECTLY TO THE DONEE. THE FACTUAL POSITION AS GIVEN ABOVE IS T HAT THE ASSESSEE HAD MADE THE PAYMENTS BY CHEQUES TO THE SUPPLIERS O F EQUIPMENTS ON BEHALF OF DONEE WHICH TANTAMOUNT TO DONATION MAD E IN A SUM OF MONEY. THAT THE LEARNED COMMISSIONER (APPEALS) SHOU LD HAVE TAKEN INTO CONSIDERATION THE SUBSTANCE OF THE ENTIRE TRAN SACTION AND OTHER FACTS AND CIRCUMSTANCES OF THE CASE. 12. FURTHER THE GENUINENESS OF THIS DONATION HAS NO T BEEN DOUBTED BY THE REVENUE. THE PAYMENTS WAS MADE BY THE APPELL ANT ON BEHALF OF THE DONEE TO MAKE AVAILABLE EQUIPMENT WITHOUT GO ING TO THE TECHNICAL FORMALITIES OF THE STATE GOVERNMENT FOR P URCHASING THE ITA NO. 346/JP/2018 NASH FASHION (INDIA) LTD. VS. DCIT 13 EQUIPMENTS, HAD MADE AVAILABLE THESE EQUIPMENTS DIR ECTLY. IT HAS BEEN CERTIFIED BY THE MEDICAL SUPERINTENDENT OF M/S . RAJASTHAN MEDICAL RELIEF SOCIETY, S.M.S. HOSPITAL, JAIPUR, TH AT THE APPELLANT HAD MADE PAYMENT ON BEHALF OF THE SOCIETY. THE LEAR NED 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 ASSESSE E. 13. THAT THE ABOVE MENTIONED ISSUE OF DEDUCTION U/S .80G OF THE I.T. ACT ALSO AROSE IN ASSESSEE'S CASE FOR ASSESSMENT YE AR 2009-10 I.E. FOR THE PREVIOUS YEAR ENDED ON 31.3.2009. IN ASSESS MENT YEAR 2009- 10 THE APPELLANT COMPANY FILED ITS RETURN OF INCOME FOR AY 2009-10 ON 30.9.2009 DECLARING TOTAL INCOME OF RS.68,77,320 /-. THE ASSESSING OFFICER AFTER SCRUTINIZING THE CASE U/S.1 43(3) OF THE INCOME TAX ACT, 1961 AND AFTER EXAMINING THE BOOKS OF ACCO UNTS OF THE ASSESSEE ALLOWED THE ASSESSEE'S CLAIM OF DEDUCTION U/S.80G OF THE INCOME TAX ACT AS CLAIMED BY THE APPELLANT COMPANY. SUBSEQUENTLY, COMMISSIONER OF INCOME TAX BY TAKING ACTION U/S.263 OF THE INCOME TAX ACT TOOK A CONTRARY VIEW AND DISALLOWED THE ASS ESSEE'S CLAIM OF DEDUCTION U/S.80G. AGAINST THIS DISALLOWANCE OF DED UCTION U/S.80G BY THE LEARNED CIT ASSESSEE PREFERRED AN APPEAL BEF ORE THE INCOME TAX APPELLATE TRIBUNAL WHICH BY ORDER DATED 5 TH NOV., 2014 ALLOWED THE CLAIM OF THE ASSESSEE U/S.80G OF I.T. ACT BY HO LDING THAT THE ORDER PASSED BY COMMISSIONER OF INCOME TAX U/S.263 IS NOT VALID IN LAW. AGAINST THIS JUDGMENT OF HON'BLE ITAT, INCOME TAX DEPARTMENT FILED APPEAL BEFORE THE HON'BLE RAJASTHAN HIGH COUR T. THE APPEAL NUMBER WAS DB INCOME TAX APPEAL NO.54/2015. THE APP EAL OF THE DEPARTMENT WAS DISMISSED BY THE HON'BLE HIGH COURT AND THE ORDER ITA NO. 346/JP/2018 NASH FASHION (INDIA) LTD. VS. DCIT 14 ALLOWING THE DEDUCTION U/S.80G BY THE LEARNED ITAT WAS SUSTAINED BY THE HON'BLE HIGH COURT VIDE ITS JUDGMENT DATED 1 1.8.2015. 14. RECENTLY THE ASSESSEES CASE FOR ASSESSMENT YEA R 2013-14 I.E. YEAR UNDER APPEAL WAS SELECTED FOR SCRUTINY UNDER C ASS AND ASSESSMENT PROCEEDINGS WERE STARTED. IN THE COURSE OF ASSESSMENT PROCEEDINGS THE AO RAISED THE ISSUE OF DEDUCTION U/ S.80G OF THE I.T. ACT IN REGARD TO DONATION MADE BY APPELLANT COMPANY OTHERWISE BY WAY OF MONEY. THE ASSESSEE COMPANY SUPPORTED ITS CL AIM U/S.80G OF THE I.T. ACT BY WAY OF FILING WITH THE AO COPY O F ORDER DATED 11.8.2015 OF HON'BLE RAJASTHAN HIGH COURT IN DB INC OME TAX APPEAL NO.54/2015 FOR ASSESSMENT YEAR 2009-10 IN ASSESSEE' S OWN CASE WHEREBY THE HON'BLE HIGH COURT HAD DISMISSED THE DE PARTMENTAL APPEAL AND THE ORDER ALLOWING DEDUCTION U/S.80G PAS SED BY THE LEARNED INCOME TAX TRIBUNAL WAS SUSTAINED. HOWEVER THE LEARNED AO BY OBSERVING IN 1 ST PARA OF PAGE 4 OF THE ASSESSMENT ORDER FOR 2013- 14 THAT THE DEPARTMENT HAS NOT ACCEPTED THE FINDING OF THE HON'BLE RAJASTHAN HIGH COURT IN ASSESSMENT YEAR 2009-10 AND HAS FILED S.L.P. BEFORE THE HON'BLE SUPREME COURT OF INDIA AN D ACCORDINGLY THE MATTER HAS NOT RECEIVED FINALITY DISALLOWED DED UCTION U/S.80G OF THE I.T. ACT CLAIMED BY THE ASSESSEE AT RS.1,27,67, 676/- ON THE GROUND THAT THE DONATION MADE IS IN KIND AND NOT IN CASH. IT IS VERY RESPECTFULLY SUBMITTED THAT THE MERE FILING OF A SP ECIAL LEAVE PETITION OR GRANT OF LEAVE TO APPEAL OR PENDENCY OF APPEAL A GAINST THE HIGH COURT'S JUDGMENT DOES NOT DENUDE THAT JUDGMENT OF I TS BINDING EFFECTS. ITA NO. 346/JP/2018 NASH FASHION (INDIA) LTD. VS. DCIT 15 15. IN REGARD TO BINDING FORCE OF A HIGH COURT JUDG MENT THE HUMBLE APPELLANT CRAVES LEAVE TO SUBMIT THAT A DECISION OF A HIGH COURT WOULD HAVE BINDING COURSE IN THE STATE IN WHICH THE COURT HAS JURISDICTION, BUT NOT OUTSIDE THAT STATE. DECISIONS OF THE HIGH COURT ARE BINDING ON THE SUBORDINATE COURTS, AUTHORITIES AND TRIBUNAL SITUATED WITHIN ITS JURISDICTIONAL TERRITORY. 16. THAT THE DISALLOWANCE OF DEDUCTION U/S.80G OF T HE I.T. ACT AT RS.1,27,67,676/- MADE BY THE AO IS HIGHLY UNJUSTIFI ED AND ASSESSEE CRAVES LEAVE TO MAKE FOLLOWING RESPECTFUL SUBMISSIO NS BEFORE YOUR HONOUR IN ABOVE REGARD: (A) THAT THE LEARNED AO FAILED TO APPRECIATE THAT T HE JUDGMENT PASSED BY THE HON'BLE RAJASTHAN HIGH COURT WHICH IS A JURISDICTIONAL HIGH COURT WITH REGARD TO THE ASSESSMENT YEAR 2009- 10 UNDER SIMILAR FACTS AND CIRCUMSTANCES IN ASSESSEE'S OWN C ASE WOULD BE SQUARELY APPLICABLE AS JUDICIAL PRECEDENT ON THE ASSESSMENT FOR ASSESSMENT YEAR 2013-14 IN ASSESSEE'S OWN CASE. (B) THAT THE ASSESSEE CRAVES LEAVE TO REFER TO 1 ST TWO LINES OF PARA 1 AT PAGE 4 OF THE IMPUGNED ASSESSMENT ORDER WHEREI N THE LEARNED AO HAS CLEARLY OBSERVED THAT THE ISSUE WHICH WAS DE CIDED BY THE HON'BLE RAJASTHAN HIGH COURT IN ASSESSEE'S OWN CASE FOR THE ASSESSMENT YEAR 2009-10 WAS SIMILAR TO THE ISSUE IN VOLVED IN ASSESSMENT FOR ASSESSMENT YEAR 2013-14. IN THIS REG ARD IT IS RESPECTFULLY SUBMITTED THAT WHEN THE AO HIMSELF HAS CONFIRMED THAT THE ISSUE OF DEDUCTION U/S.80G OF THE I.T. ACT INVOLVED IN AY 2013- 14 IS SIMILAR TO THE ISSUE OF DEDUCTION U/S.80G OF THE I.T. ACT INVOLVED IN ASSESSMENT YEAR 2009-10 IN ASSESSEE'S O WN CASE, THE ITA NO. 346/JP/2018 NASH FASHION (INDIA) LTD. VS. DCIT 16 ASSESSING OFFICER I.E. THE DY. COMMISSIONER OF INCO ME TAX, CIRCLE II, JAIPUR AS WELL AS LEARNED COMMISSIONER (APPEALS) WE RE, IN VIEW OF JUDICIAL DISCIPLINE AND DOCTRINE OF PRECEDENT, DUTY BOUND TO FOLLOW IN TOTO THE JUDGMENT DATED 11 TH AUGUST 2015 PASSED BY THE HON'BLE RAJASTHAN HIGH COURT. (C) THAT IT IS RESPECTFULLY SUBMITTED THAT IT IS A SETTLED PRINCIPLE OF LAW THAT MERE FILING OF APPEAL AGAINST THE JUDGMENT PAS SED BY THE HIGH COURT AND IN THIS CASE THE JURISDICTIONAL HIGH COUR T CANNOT REDUCE THE PRECEDENTIAL VALUE OF THE JUDGMENT OF THE HON'BLE H IGH COURT. (D) THAT THE ASSESSEE UNDERSTANDS THAT NO STAY ORDE R HAS BEEN PASSED BY THE HON'BLE SUPREME COURT IN REGARD TO AB OVE SAID S.L.P. AND IT IS SUBMITTED THAT IN THE ABSENCE OF ANY STAY ORDER PASSED BY HON'BLE SUPREME COURT, THE JUDGMENT DATED 11 TH AUGUST 2015 PASSED BY THE HON'BLE HIGH COURT OF JUDICATURE FOR RAJASTHAN IS A BINDING PRECEDENT. (E) THAT IT IS FURTHER SUBMITTED THAT WHEN THE SIMI LAR ISSUE HAS BEEN DECIDED BY THE JURISDICTIONAL HIGH COURT, SIMPLY ON THE GROUND OF FILING OF S.L.P. BY THE DEPARTMENT, THE LEARNED COM MISSIONER (APPEALS) CANNOT TAKE CONTRARY VIEW WHILE PASSING T HE IMPUGNED ORDER. 5. THE LD. DR IS HEARD WHO HAS VEHEMENTLY ARGUED TH E MATTER AND HAS RELIED ON THE FINDINGS OF THE LOWER AUTHORI TIES. HE SUBMITTED THAT THE MATTER IS SQUARELY COVERED BY THE DECISION OF THE HONBLE SUPREME COURT IN CASE OF H.H. SRI RAMA VERMA (SUPRA ) AND IT IS CLEARLY A CASE OF DONATION IN KIND WHICH IS NOT ELI GIBLE FOR DEDUCTION UNDER SECTION 80G OF THE ACT. ITA NO. 346/JP/2018 NASH FASHION (INDIA) LTD. VS. DCIT 17 6. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE ISSUE IS NO M ORE RES INTEGRA AND HAS BEEN DECIDED BY THE HONBLE SUPREME COURT I N CASE OF H.H. SRI RAMA VERMA (SUPRA) WHEREIN THE HONBLE SUPREME COURT AFTER CONSIDERING THE CONFLICTING DECISIONS OF THE VARIOUS HIGH COURTS, ALSO REFERRED BY THE LD AR IN HIS CONTENTIO NS AND SUBMISSIONS MADE BEFORE US, AS WELL AS THE INSERTION BY WAY OF EXPLANATION TO SECTION 80G WHICH HAS BEEN RELIED UPON BY THE REVEN UE, HAS HELD AS UNDER: 4. THE LANGUAGE USED IN SECTION 80G(2)(A) IS CLEAR AN D UNAMBIGUOUS. ON A PLAIN READING OF THE SECTION, IT IS APPARENT THAT AN ASSESSEE IS ENTITLED TO CLAIM DEDUCTION FROM HIS INCOME ON THE AMOUNT OF MONEY PAID BY HIM AS DONATION TO THE AUTHORITIES AND FOR THE CAUSES SPECIFIED THEREIN. THE USE OF THE EXPRESSION 'ANY SUMS PAID' CONTEMPLATES PAYMENT OF AN AMOUNT OF MONEY. ONE OF THE DICTIONARY MEANINGS OF THE EXP RESSION 'SUM' MEANS ANY INDEFINITE AMOUNT OF MONEY. THE CONTEXT I N WHICH THE EXPRESSION 'SUMS PAID BY THE ASSESSEE' HAS BEEN USE D MAKES THE LEGISLATIVE INTENT CLEAR THAT IT REFERS TO THE AMOU NT OF MONEY PAID BY THE ASSESSEE AS DONATION. THE ACT PROVIDES FOR ASSE SSMENT OF TAX ON THE INCOME DERIVED BY AN ASSESSEE DURING THE ASSESS MENT YEAR; THE INCOME RELATES TO THE AMOUNT OF MONEY EARNED OR REC EIVED BY AN ASSESSEE. THEREFORE, FOR PURPOSES OF CLAIMING DEDUCTION FROM INCOME-TAX UNDER SECTION 80G(2)(A), THE DONATION MU ST BE A SUM OF MONEY PAID BY THE ASSESSEE. THE PLAIN MEANING OF THE WORDS USED IN THE SECTION DOES NOT CONTEMPLATE DONATIONS IN KIND. DONATIONS MAY BE MADE BY SUPPLYI NG ITA NO. 346/JP/2018 NASH FASHION (INDIA) LTD. VS. DCIT 18 GOODS OF VARIOUS KINDS INCLUDING BUILDING, VEHICLE OR ANY OTHER TANGIBLE PROPERTY BUT SUCH DONATIONS, THOUGH CONVERTIBLE IN TERMS OF MONEY, DO NOT FALL WITHIN T HE SCOPE OF SECTION 80G(2)(A) ENTITLING AN ASSESSEE TO DEDUC TION. DONATION OF SHARES OF A COMPANY DOES NOT AMOUNT TO PAYMENT OF ANY SUM OR AMOUNT THOUGH THE SHARES, ON THEIR SALE, MAY BE CONVERTED INTO MONEY. BUT THE DONATION SO MADE DOES NOT FALL WITHIN THE AMBIT OF THE AFORESAID SECTION. SINCE THE EXPRE SSION AND LANGUAGE USED IN SECTION 80G(2)(A) IS PLAIN AND CLE AR, IT IS NOT OPEN TO THE COURTS TO ENLARGE THE SCOPE BY ITS INTE RPRETATIVE PROCESS FOUNDED ON THE BASIS OF THE OBJECT AND PURP OSE UNDERLYING THE PROVISIONS FOR GRANTING RELIEF TO AN ASSESSEE. 5. THERE HAS BEEN A CONFLICT OF OPINION BETWEEN THE V ARIOUS HIGH COURTS ON THE INTERPRETATION OF SECTION 80G(2)(A). IN CIT V. ASSOCIATED CEMENT CO. LTD. [1968] 68 ITR 478 (BOM.); ADDL. CIT V. ABHAI MALIGAI [1978] 113 ITR 737 (MAD.) AND CIR V. BANGALORE WOOLLEN, COTTON & SILK MILLS CO. LTD. [1973] 91 ITR 166 (MYS.), COURTS HAVE TAKEN THE VIEW THAT WHILE, INTERPRETING SECTION 80G(2)(A), THE SUBSTANCE OF THE NATURE OF THE TRANS ACTION SHOULD BE TAKEN INTO ACCOUNT AND IT IS NOT NECESSARY THAT THE DONATION MUST BE IN CASH. AS AGAINST THIS VIEW, OTHER HIGH COURTS IN CIT V. AMONBOLU RAJIAH [1976] 102 ITR 403 (AP); CIT V. GOPAL KRISHNA SINGHANIA [1980] 121 ITR 260 (ALL.) AND CIT V. SMT. DHIRAJBEN R. AMIN [1983] 141 ITR 875 (GUJ.), HAVE HELD THAT SECTION 80G(2)(A) DOES NOT CONTEMPLATE ANY DONATION IN KIND; INSTEAD, THE EXPR ESSION 'SUMS' RELATES TO THE CASH AMOUNT OF MONEY WHICH MAY HAVE BEEN DONATED BY THE ASSESSEE. ON A CAREFUL SCRUTINY OF THE TWO O PINIONS IN THE ITA NO. 346/JP/2018 NASH FASHION (INDIA) LTD. VS. DCIT 19 AFORESAID JUDGMENTS, WE ARE IN AGREEMENT WITH THE VIEW TAKEN BY THE ANDHRA PRADESH, ALLAHABAD AND GUJARAT HIGH C OURTS IN HOLDING THAT SECTION 80G(2)(A) CONTEMPLATES ONLY CASH AMOUNT OF MONEY AS DONATION, FOR CLAIMING RELIEF OF DEDUCTION AND IT DOES NOT REFER TO ANY DONATION MAD E IN KIND. 6. IT APPEARS THAT, IN VIEW OF THE CONFLICTING OPINIO NS EXPRESSED BY THE VARIOUS HIGH COURTS, PARLIAMENT INTERVENED AND ADDED EXPLANATION 5 TO SECTION 80G, 1976. EXPLANATION 5 R EADS AS UNDER: 'FOR THE REMOVAL OF DOUBTS, IT IS HEREBY DECLARED T HAT NO DEDUCTION SHALL BE ALLOWED UNDER THIS SECTION IN RESPECT OF A NY DONATION UNLESS SUCH DONATION IS OF A SUM OF MONEY.' 7. AFTER THE INSERTION OF THE AFORESAID EXPLANATION, T HERE CANNOT BE ANY DOUBT THAT, FOR PURPOSES OF CLAIMING DEDUCTION, ONLY CASH AMOUNTS WHICH MAY HAVE BEEN DO NATED WOULD BE TAKEN INTO ACCOUNT. NO DOUBT THIS PROVISION IS NOT RETROSPECTIVE IN NATURE; NONETHELESS IT INDICATES T HE LEGISLATIVE INTENT BEHIND SECTION 80G(2)(A) EVEN PRIOR TO ITS AMENDMEN T. 8. WE, THEREFORE, AGREE WITH THE VIEW TAKEN BY THE KE RALA HIGH COURT. THE APPEAL FAILS AND IS, ACCORDINGLY, DISMIS SED. THERE WOULD BE NO ORDER AS TO COSTS. 7. THE RATIO DECIDENDI OF THE ABOVE JUDGEMENT RENDERED BY THE HONBLE SUPREME COURT WILL CLEARLY APPLIES TO THE C ASE IN HAND. IN THE INSTANT CASE, WHAT IS THEREFORE RELEVANT TO DET ERMINE IS WHETHER ITA NO. 346/JP/2018 NASH FASHION (INDIA) LTD. VS. DCIT 20 THE ASSESSEE HAS DONATED MONEY TO RAJASTHAN MEDICAR E RELIEF SOCIETY, SMS HOSPITAL, JAIPUR AMOUNTING TO RS 31,23 ,590 AND ANOTHER DONATION OF RS 96,44,086 TO RAJASTHAN MEDICARE RELI EF SOCIETY, SIR PADAMPATH MOTHER AND CHILD HEALTH INSTITUTE (S.P.M. C.H.I), JAIPUR, OR THE SAID DONATION HAS BEEN MADE IN KIND IN FORM OF MEDICAL EQUIPMENTS. 8. THE QUESTION FOR CONSIDERATION IS THEREFORE THE DETERMINATION OF THE FINER DISTINCTION BETWEEN THE CASH DONATION AND DONATION IN KIND. IN BOTH THE CASES, THERE IS OUTFLOW OF MONEY FROM THE ASSESSEES HAND. HOWEVER, THERE COULD BE VARIOUS SC ENARIOS IN PARTICULAR FACTS AND CIRCUMSTANCES OF EACH CASE. IN ONE SCEANRIO, THE MONEY IS GOING DIRECTLY FROM THE ASSESSEE TO THE DO NEE WHICH DOESNT CREATE ANY CONFUSION AND IT WILL BE CLEARLY ELIGIBLE FOR DEDUCTION. IN ANOTHER SCENARIO, WHERE THE ASSESSEE HAS AN EXISTING ASSET/PROPERTY/STOCK-IN-TRADE IN ITS POSSESSION/CON TROL AND THE SAME IS THEREAFTER TRANSFERRED BY WAY OF DONATION, IT WI LL BE A CLEAR CASE OF DONATION IN KIND AND THE SAME WILL NOT BE ELIGIBLE FOR DEDUCTION. THERE COULD BE A THIRD SCENARIO WHERE THE ASSESSEE PURCHASES ANY ASSET/PROPERTY/EQUIPMENTS ETC FROM A THIRD PARTY AN D THEREAFTER, THE SAME IS DONATED. IN THIS CASE, EVEN THOUGH THE MON EY HAS BEEN SPENT BY THE ASSESSEE IN PURCHASING THE ASSET/PROPE RTY/EQUIPMENT, WHAT HAS BEEN ACTUALLY DONATED IS THE ASSET/PROPERT Y/EQUIPMENT. THE ACT OF DONATION IS SUBSEQUENT TO PURCHASE/ACQUI SITION BY THE ASSESSEE IN ITS OWN RIGHT. ONCE THE ASSESSEE HAS PURCHASED/ACQUIRED THE ASSET/PROPERTY/EQUIPMENT, TH E TITLE/OWNERSHIP IN SUCH ASSET/PROPERTY/EQUIPMENT HA S BEEN ITA NO. 346/JP/2018 NASH FASHION (INDIA) LTD. VS. DCIT 21 TRANSFERRED BY WAY OF GIFT. THE GIFT IN SUCH CASES IS THUS GIFT IN KIND AND THE SAME WONT BE ELIGIBLE FOR DEDUCTION. ANOT HER SCENARIO IS WHERE THERE IS A NECESSITY/REQUIREMENT OF CERTAIN ASSET/PROPERTY/EQUIPMENT BY THE DONEE INSTITUTION A ND IT REACHES OUT TO THE DONOR TO FUND SUCH ACQUISITION/PURCHASE OF ASSET/PROPERTY/EQUIPMENT. IN THIS CASE, THE DONEE INSTITUTION PLACES THE ORDER DIRECTLY ON THE SUPPLIER OF THE ASSET/PRO PERTY/EQUIPMENT, THEREAFTER, THE SUPPLIER SUPPLIES THE EQUIPMENT DIR ECTLY TO THE DONEE AND THE INSTALL THE SAME AT THE PREMISES OF THE DON EE INSTITUTION. THE LIMITED ROLE OF THE DONOR IN SUCH A SCENARIO IS TO FUND SUCH ACQUISITION/PURCHASE AND MAKE THE PAYMENT TO THE SU PPLIER ON BEHALF OF THE DONEE INSTITUTION. 9. IF WE LOOK AT THE LAST TWO SCENARIOS AS DISCUSSE D ABOVE, THE FINER DISTINCTION BETWEEN THESE TWO SCENARIOS IS TH AT IN THE FIRST SCENARIO, THE ASSESSEE DONOR HAS PURCHASED/ACQUIRED THE ASSET/PROPERTY/EQUIPMENT IN ITS OWN RIGHT AND THERE AFTER, THE TITLE/OWNERSHIP IN SUCH ASSET/PROPERTY/EQUIPMENT HA S BEEN TRANSFERRED BY WAY OF GIFT TO THE DONEE INSTITUTION . IN THE SECOND SCENARIO, THE DONEE INSTITUTION ITSELF HAS PURCHASE D/ACQUIRED THE ASSET/PROPERTY/EQUIPMENT IN ITS OWN RIGHT AND THERE FORE, THERE IS NO QUESTION OF TRANSFER OF THE TITLE/OWNERSHIP IN SUCH ASSET/PROPERTY/EQUIPMENT BY THE DONOR TO THE DONEE INSTITUTION AND WHICH HAS BEEN SPENT/TRANSFERRED BY THE DONOR IS TH E SUM OF MONEY EQUIVALENT TO THE PURCHASE PRICE OF THE EQUIPMENTS PURCHASED DIRECTLY BY THE DONE INSITUTION. THE FIRST SCENARI O WILL NOT QUALIFY FOR DEDUCTION AS WHAT HAS BEEN DONATED IS PROPERTY IN K IND, HOWEVER ITA NO. 346/JP/2018 NASH FASHION (INDIA) LTD. VS. DCIT 22 THE SECOND SCENARIO WILL QUALIFY FOR DEDUCTION AS W HAT HAS BEEN SPENT AND TRANSFERRED IS SUM OF MONEY AND NOT PROPE RTY IN KIND. IN OUR VIEW, THE FACTS OF THE PRESENT SCENARIO THUS NE EDS TO BE ANALYSED IN DETAIL TO DETERMINE WHICH OF THE ABOVE SCENARIOS IT FITS IN AND BASES THE SAME, WHETHER THE ASSESSEE IS ELIG IBLE FOR DEDUCTION UNDER SECTION 80G OF THE ACT. 10. IN THE PRESENT CASE, THE LD AR HAS CONTENDED TH AT ON THE ADVISE OF THE HOSPITAL AUTHORITIES, THE ASSESSEE IS SUED A CHEQUE IN FAVOUR OF THE MANUFACTURERS TO DIRECTLY SUPPLY THE DESIRED MACHINERY AND EQUIPMENTS TO HOSPITALS. AFTER GETTING THE CHEQ UE FROM THE ASSESSEE, THE MANUFACTURERS DIRECTLY SENT THE MACHI NERY AND EQUIPMENTS TO THE HOSPITALS. THE MACHINERY AND EQUI PMENTS SENT BY MANUFACTURERS WERE DIRECTLY DELIVERED TO THE HOSPIT AL AUTHORITIES AND ALSO GOT INSTALLED IN THE HOSPITAL PREMISES. IT WAS SUBMITTED THAT AT NO STAGE, EQUIPMENTS ARE DELIVERED TO THE ASSESSEE COMPANY. MOREOVER AFTER HAVING MADE THE PAYMENTS BY WAY OF C HEQUES TO THE SUPPLIERS, THE ASSESSEE HAS NO CONNECTION WITH THE SUPPLIERS. IT WAS SUBMITTED THAT ALL WORKS INCLUDING PLACING OF ORDER OF MEDICAL EQUIPMENTS REQUIRED BY HOSPITAL AUTHORITIES, TAKING OF DELIVERY OF GOODS, CHECKING OF QUALITY AND QUANTITY OF THE MEDI CAL EQUIPMENTS AND GETTING INSTALLED THESE MEDICAL EQUIPMENTS IN T HE HOSPITALS ARE UNDER DIRECT SUPERVISION OF THE MEDICAL SUPERINTEND ENT AND AT NO STAGE ASSESSEE COMES INTO PICTURE NOR IT HAS ANY SA Y IN THE SUPPLY OF THE EQUIPMENTS AND INSTALLATION THEREOF. IT WAS SUB MITTED THAT SO FAR AS ASSESSEE IS CONCERNED, IT HAS PAID THE DONATION IN MONEY I.E. BY WAY OF ISSUING CHEQUE FROM HIS BANK ACCOUNT IN FAVO UR OF SUPPLIERS ITA NO. 346/JP/2018 NASH FASHION (INDIA) LTD. VS. DCIT 23 OF MEDICAL EQUIPMENTS AND IN SUCH A SITUATION BY NO CANON OF LAW, CAN IT BE SAID THAT DONATION IS IN KIND OR NOR IN C ASH. THE ABOVE CONTENTIONS OF THE LD AR NEED TO BE TESTED IN TERMS OF ACTUAL VERIFIABLE DOCUMENTATION RIGHT FROM PLACING THE ORD ER BY THE HOSPITAL AUTHORITIES, RAISING OF INVOICES BY THE SUPPLIER ON THE HOSPITAL AUTHORITIES, DELIVERY/SUPPLY/INSTALLATION AT THE HO SPITAL PREMISES AND PAYMENT BY CHEQUE BY THE ASSESSEE EQUIVALENT TO THE INVOICE VALUE DIRECTLY TO THE SUPPLIERS. HOWEVER, WE FIND THAT TH ERE IS NOTHING ON RECORD IN TERMS OF VERIFIABLE EVIDENCE/DOCUMENTATIO N IN SUPPORT OF AFORESAID CONTENTIONS SO RAISED BY THE LD AR. FURT HER, WE FIND THAT THERE IS NO FINDING RECORDED BY THE AO OR THE LD CI T(A) EXAMINING THE AFORESAID CONTENTIONS SO RAISED BY THE LD AR. IN ABSENCE OF THE SAME, WE ARE UNABLE TO TAKE A VIEW IN THE MATTER AN D THE MATTER DESERVES TO BE SET-ASIDE. 11. REGARDING RELIANCE PLACED BY THE LD AR ON THE F INDINGS OF THE COORDINATE BENCHES IN EARLIER YEARS WHICH HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE, WE FIND THAT THE DECISION O F THE COORDINATE BENCH IN AY 2009-10 WAS RENDERED IN THE CONTEXT OF EXERCISE OF POWERS BY THE LD CIT U/S 263 WHERE THE AO HAS ALREA DY EXAMINED THE MATTER IN THE COURSE OF ASSESSMENT PROCEEDINGS U/S 143(3) AND WHICH HAS BEEN FOLLOWED SUBSEQUENTLY BY THE COORDIN ATE BENCH IN AY 2012-13. IN OUR VIEW, THE ACT OF DONATION WHETH ER CASH OR IN KIND BEING A FACTUAL MATTER NEEDS TO BE EXAMINED FO R THE EACH OF THE YEARS UNDER CONSIDERATION. EVEN IF WE WERE TO FOLLOW THE ORDERS PASSED BY THE COORDINATE BENCHES IN EARLIER YEARS, THE MATTER NEEDS TO BE EXAMINED ON FACTS PREVAILING IN THE IMPUNGED ASSESSMENT YEAR ITA NO. 346/JP/2018 NASH FASHION (INDIA) LTD. VS. DCIT 24 TO DETERMINE WHETHER THE FINDINGS OF THE EARLIER YE ARS CAN BE APPLIED TO THE FACTS OF THE IMPUNGED ASSESSMENT YEA R. AS WE HAVE NOTED ABOVE, THERE HAS BEEN NO FINDINGS RECORDED BY THE LOWER AUTHORITIES REGARDING ACTUAL TRANSACTION DETAILS AN D DOCUMENTATION OF THE DONATION MADE BY THE ASSESSEE, WE ARE UNABLE TO ACCEDE TO THE CONTENTION OF THE LD AR TO BLINDLY FOLLOW THE F INDINGS OF THE COORDINATE BENCHES IN THE EARLIER YEARS. SIMILARLY , RELIANCE PLACED BY THE LD AR ON THE DECISION OF THE HONBLE RAJASTH AN HIGH COURT DOESNT SUPPORT THE CASE OF THE ASSESSEE AS THE SAI D DECISION HAS BEEN RENDERED IN THE PECULIAR FACTS AND CIRCUMSTANC ES OF THE CASE IN THE CONTEXT OF EXERCISE OF POWERS BY THE LD CIT U/S 263 OF THE ACT AND APPARENTLY, THE DECISION OF THE HONBLE SUPREME COURT IN CASE OF H.H. SRI RAMA VERMA (SUPRA) WAS NOT BROUGHT TO T HE NOTICE OF HONBLE HIGH COURT. 12. IN THE ENTIRETY OF FACTS AND CIRCUMSTANCES OF T HE CASE AND IN LIGHT OF ABOVE DISCUSSIONS AND IN PARTICULAR, THE D ECISION OF THE HONBLE SUPREME COURT IN CASE OF H.H. SRI RAMA VERM A (SUPRA) REFERRED SUPRA, WE SET-ASIDE THE MATTER TO THE FILE OF THE AO TO EXAMINE THE SAME AFRESH TAKING INTO CONSIDERATION T HE ABOVE DISCUSSIONS, AFTER PROVIDING REASONABLE OPPORTUNITY TO THE ASSESSEE. 13. IN THE RESULT, THE GROUND IS ALLOWED FOR STATI STICAL PURPOSES. 14. IN GROUND NO. 4 THE ASSESSEE HAS SUBMITTED THAT THIS GROUND OF APPEAL IS IN REGARD TO SUSTENANCE BY LEARNED COM MISSIONER (APPEALS) OF DISALLOWANCE AND CONSEQUENTIAL ADDITIO N U/S.40(A)(IA) OF THE I.T. ACT MADE BY THE AO ON THE GROUND THAT THE CERTIFICATE OF ITA NO. 346/JP/2018 NASH FASHION (INDIA) LTD. VS. DCIT 25 ACCOUNTANTS FURNISHED BY THE ASSESSEE HAVE NOT BEEN FURNISHED IN ACCORDANCE WITH RULE 31ACB AS AMENDED W.E.F. 19.02. 2013 IN RELATION TO INTEREST PAYMENT OF RS.36,00,008/- MADE BY IT TO A NON-BANKING FINANCE COMPANY NAMELY S.E. INVESTMENT LTD AT RS. 3 6,00,008/- WITHOUT DEDUCTION OF TAX AT SOURCE. 15. IT WAS SUBMITTED THAT THE FACTS LEADING TO ABOV E DISALLOWANCES AND CONSEQUENTIAL ADDITION ARE THAT T HE ASSESSEE COMPANY IS ENGAGED IN THE BUSINESS OF MANUFACTURING AND EXPORT OF READYMADE GARMENTS. IT TOOK UNSECURED LOAN FROM S.E. INVESTMENT LTD., AN NBFC. HOWEVER TDS WAS NOT DEDUC TED ON INTEREST PAYMENT OF RS.36,00,008/- MADE BY ASSESSEE TO THIS NBFC AND ON ACCOUNT OF THIS, THE AO ADDED THIS AMOUNT OF RS. 36,00,008/- U/S.40(A)(IA) OF THE I.T. ACT. 16. IT WAS SUBMITTED THAT BEFORE THE LEARNED COMMIS SIONER (APPEALS), THE ASSESSEE'S ARGUMENT WAS THAT BEFORE MAKING DISALLOWANCE U/S. 40(A)(IA) THE AO DID NOT PROVIDE REASONABLE AND SUFFICIENT OPPORTUNITY OF BEING HEARD. IN AS MUCH A S THE AO DID NOT ISSUE AND SERVE UPON THE ASSESSEE ANY SPECIFIC SHOW CAUSE NOTICE OF HIS INTENTION TO MAKE DISALLOWANCES U/S.40(A)(IA ) OF THE I.T. ACT. IT WAS FURTHER ARGUED BEFORE THE LEARNED COMMISSION ER THAT THIS OMISSION OF THE AO IN NOT ISSUING SPECIFIC SHOW CAU SE NOTICE TO THE ASSESSEE BEFORE MAKING DISALLOWANCES AND ADDITIONS DEPRIVED THE ASSESSEE FROM HIS RIGHT OF BEING HEARD AND TO PUT H IS DEFENCE BEFORE THE AO AGAINST PROPOSED DISALLOWANCES AND AD DITIONS IS AGAINST THE PRINCIPLES OF NATURAL JUSTICE AND ACCOR DINGLY THE ITA NO. 346/JP/2018 NASH FASHION (INDIA) LTD. VS. DCIT 26 IMPUGNED ASSESSMENT ORDER IS NOT MAINTAINABLE IN LA W AND LIABLE TO BE VACATED 17. THAT WITHOUT PREJUDICE TO SUBMISSIONS MADE AB OVE, THE ASSESSEE CRAVES LEAVE TO MENTION THE PRESENT LEGAL POSITION OF THE PROVISIONS OF SECTION 40(A)(IA) R.W.S.201(1) OF THE I.T. ACT WHICH IS AS UNDER: WHERE AN ASSESSEE FAILS TO DEDUCT THE WHOLE OR ANY PART OF THE TAX IN ACCORDANCE WITH THE PROVISIONS OF CHAPTER XVII ON A NY SUCH SUM BUT IS NOT DEEMED TO BE AN ASSESSEE IN DEFAULT UNDER THE F IRST PROVISO TO SECTION 201(1), THEN, FOR THE PURPOSE OF SECTION 40 (A)(IA), IT SHALL BE DEEMED THAT THE ASSESSEE HAS (A) DEDUCTED AND (B) PAID THE TAX ON SUCH SUM ON THE DATE OF FURNISHING OF RETURN OF INCOME BY TH E RESIDENT PAYEE REFERRED TO IN THE SAID PROVISO. WITH EFFECT FROM 1 ST DAY OF JULY 2012 FOLLOWING PROVISO HAS BEEN BROUGHT ON STATUTE BOOK IN SEC. 201 OF THE I.T. ACT WHICH READS AS UNDER: PROVIDED THAT ANY PERSON, INCLUDING THE PRINCIPAL OFFICER OF A COMPANY, WHO FAILS TO DEDUCT THE WHOLE OR ANY PART OF THE TA X IN ACCORDANCE WITH THE PROVISIONS OF THIS CHAPTER ON THE SUM PAID TO A RESIDENT SHALL NOT DEEMED TO BE AN ASSESSEE IN DEFAULT IN RESPECT OF S UCH TAX IF SUCH RESIDENT: ITA NO. 346/JP/2018 NASH FASHION (INDIA) LTD. VS. DCIT 27 ( I ) HAS FURNISHED HIS RETURN OF INCOME UNDER SECTION 139 ; ( II ) HAS TAKEN INTO ACCOUNT SUCH SUM FOR COMPUTING INCOM E IN SUCH RETURN OF INCOME; AND ( III ) HAS PAID THE TAX DUE ON THE INCOME DECLARED BY HIM IN SUCH RETURN OF INCOME AND THE PERSON FURNISHES A CERTIFICATE TO THIS EFFECT FROM AN ACCOUNTANT IN SUCH FORM AS MAY BE PRESCRIBED THEREFORE, IF THE RESIDENT PAYEE SATISFIES ALL THE ABOVE 3 CONDITIONS AND THE DEDUCTOR FURNISHES A CERTIFICATE TO THIS EF FECT FROM A CHARTERED ACCOUNTANT IN SUCH FORM AS MAY BE PRESCRI BED, THEN THE DEDUCTOR WILL BE ALLOWED THE DEDUCTION OF THE EXPEN SES MENTIONED IN 40(A)(IA) BY ASSUMING THAT THE DEDUCTOR HAS DEDUCTE D AND PAID THE TAX ON SUCH SUM ON THE DATE OF FURNISHING OF RETURN OF INCOME BY THE RESIDENT PAYEE AFORESAID. 18. IT WAS SUBMITTED THAT THE LEARNED AO OUGHT TO HAVE APPRECIATED THAT AFTER THE AMENDMENT IN SECTION 201 OF THE I.T. ACT BY WAY OF INSERTION OF PROVISO TO SECTION 201(1) OF THE I.T. ACT, 1961 BY FINANCE ACT 2012 (W.E.F. 01.07.2012) PAYMENT OF INTEREST MADE TO NBFCS WITHOUT DEDUCTION OF TAX AT SOURCE IS AN A LLOWABLE EXPENDITURE [OF COURSE IT IS SUBJECT TO SOME STATUT ORY COMPLIANCES WHICH INCLUDED FILING OF CERTIFICATE FROM CHARTERED ACCOUNTANT] AND NOT HIT BY THE MISCHIEF OF THE PROVISIONS OF SECTIO N 40(A)(IA) OF THE I.T. ACT. 19. IT WAS SUBMITTED THAT THE ASSESSEE UNDERSTANDS THAT THE NBFC, NAMELY, S.E. INVESTMENT LTD HAS FURNISHED ITS RETUR N OF INCOME U/S.139 ITA NO. 346/JP/2018 NASH FASHION (INDIA) LTD. VS. DCIT 28 OF THE I.T. ACT AND HAS TAKEN INTO CONSIDERATION TH E INTEREST RECEIVED BY IT FROM THE APPELLANT ASSESSEE IN THEIR RETURN OF I NCOME AND HAVE PAID THE TAX DUE ON THE INCOME DECLARED BY IT IN SUCH RE TURN OF INCOME. IT WAS SUBMITTED THAT DUE TO SOME MISUNDERSTANDING WHI CH CREPT IN THE MIND OF ABOVE NAMED NBFC, NAMELY, S.E. INVESTME NT LTD. IN REGARD TO ASSESSEE IT IS NOT PROVIDING TO ASSESSEE THE CERTIFICATE IN THE FORM OF ANNEXURE FROM A CHARTERED ACCOUNTANT. T HE ASSESSEE IS MAKING STRENUOUS EFFORT TO RECEIVE CERTIFICATE FROM S.E. INVESTMENT LTD. IT IS REQUESTED THAT THE AO MAY VERY KINDLY BE ASKED TO PROVIDE AN OPPORTUNITY TO ASSESSEE TO SUBMIT THE CERTIFICAT E FROM CHARTERED ACCOUNTANT IN THE CASE OF S.E. INVESTMENT LTD. 20. THE LD. DR IS HEARD WHO HAS RELIED ON THE FINDI NGS OF THE LOWER AUTHORITIES. 21. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE ASSESSEE HAS CONTENDED THA T THE ADDITION HAS BEEN MADE WITHOUT PROVIDING REASONABLE OPPORTUN ITY AND FURTHER, IT IS UNLIKELY THAT THE NBFC HAS NOT REPOR TED THE PAYMENT IN ITS RETURN OF INCOME AND PAID TAXES THEREON AND IT SHALL BE ABLE TO PRODUCE THE NECESSARY CERTIFICATE IN SUPPORT THEREO F. AS WE HAVE ALREADY SET-ASIDE THE MATTER RELATION TO DEDUCTION U/S 80G, IN THE INTEREST OF JUSTICE, THIS MATTER IS ALSO SET-ASIDE TO THE FILE OF THE AO TO EXAMINE THE SAME AFRESH AFTER PROVIDING REASONAB LE OPPORTUNITY TO THE ASSESSEE. IN THE RESULT, THE GROUND IS ALLO WED FOR STATISTICAL PURPOSES. ITA NO. 346/JP/2018 NASH FASHION (INDIA) LTD. VS. DCIT 29 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 01/10/2018. SD/- SD/- FOT; IKY JKO FOE FLAG ;KNO (VIJAY PAL RAO) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 01/10/2018. *SANTOSH VKNS'K DH IZFRFYFI VXZSFKR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- NASH FASHION (INDIA) LTD., JAIPUR. 2. IZR;FKHZ@ THE RESPONDENT- DCIT, CIRCLE-II, JAIPUR. 3. VK;DJ VK;QDR@ CIT 4. VK;DJ VK;QDR@ CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR. 6. XKMZ QKBZY@ GUARD FILE { ITA NO. 346/JP/2018} VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASST. REGISTRAR