Pioneer Medical Systems Pvt Ltd, Chennai V. DCIT, Corp Cir 3(2), Chennai

ITA 448/CHNY/2019

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 8789 (ITAT-CHENNAI)
• Duration Of Justice: 6 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-09-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2014-2015
• Appeal Filed On: 22-02-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: DIVAHARJCITD R
• Assessee Lawyers: D ANAND
• Keywords: Wrong claim

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: CHENNAI , , ' BEFORE SHRI GEORGE MATHAN , JUDICIAL MEMBER AND SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER ./ ITA NOS.447 & 448/CHNY/2019 /ASSESSMENT YEARS: 2013-14 & 2014-15 M/S.PIONEER MEDICAL SYSTEMS PVT LTD. FLAT NO.C-8,GEM COURT, 3 RD FLOOR, 14,KHADER NZWAZ KHAN ROAD, NUNGAMBAKKAM, CHENNAI 600 034. VS. DEPUTY COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE-3(2), CHENNAI. [ PAN: AAFCP 1590 A ] ( ) /APPELLANT) ( *+) /RESPONDENT) ) , / APPELLANT BY : MR.D.ANAND,ADVOCATE *+) , /RESPONDENT BY : MR.DIVAHAR,JCIT,D.R , /DATE OF HEARING : 16.09.2019 , /DATE OF PRONOUNCEMENT : 16.09.2019 / O R D E R PER GEORGE MATHAN, JUDICIAL MEMBER : THESE TWO APPEALS ARE FILED BY THE ASSESSEE AGAINS T THE SEPARATE ORDERS OF THE COMMISSIONER OF INCOME TAX (APPEALS)- 3 , CHENNAI, IN ITA NO.140/2016-17/A-3 DATED 12.12.2018 FOR ASSESSMENT YEAR 2013-14, AND IN ITA NO.141/2016-17/A-3 DATED 12.12.2018 FOR ASSESSMENT YEAR 2014-15. ITA NOS.447 & 448/CHNY/2019 :- 2 -: 2. MR. D.ANAND REPRESENTED ON BEHALF OF THE ASSESSE E, AND MR.D.DIVAHAR REPRESENTED ON BEHALF OF THE REVENUE. 3. IT WAS SUBMITTED BY LD.AR THAT THE ONLY ISSUE I N BOTH THE APPEALS OF THE ASSESSEE WAS AGAINST THE ACTION OF THE LD.CIT(A ) IN DISALLOWING THE ASSESSEES CLAIM OF DEDUCTION U/S.35(1)(II) OF THE ACT IN RESPECT OF DONATIONS MADE TO M/S.SCHOOL OF HUMAN GENETICS AND POPULATION HEALTH, KOLKATA (PAN:AABAS 4570 M) TREATING THE SAME AS BOG US. FURTHER, IT WAS FAIRLY AGREED BY BOTH THE SIDES THAT THE ISSUE RAIS ED IN THESE APPEALS WAS SQUARELY COVERED BY THE DECISION OF CO-ORDINATE BEN CH OF THIS TRIBUNAL IN THE CASE OF M/S.PRITHVI SOFTECH LTD., IN I.T.A.NOS. 2414 & 2415/CHNY/2017 FOR ASSESSMENT YEARS 2012-13 & 2013-14 VIDE ORDE R DATED 18-09-2018 WHEREIN FOLLOWING THE DECISION OF CO-ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF M/S.MEGATRENDS INC., CHENNAI VS. THE ACIT, CHENNAI IN ITA NOS.417 & 740/CHNY/2017 VIDE ORDER DATED 05.03.2018 , THE ISSUE HAD BEEN RESTORED TO THE FILE OF ASSESSING OFFICER FOR RE-ADJUDICATION. 4. WE HAVE HEARD THE SUBMISSIONS OF BOTH THE SIDES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. A PERUSAL OF THE ORDER OF CO-ORDINATE BENCH OF THIS TRIBUNAL IN M/S.MEGATRENDS INC., CHENNAI REFERRED TO SUPRA, SHOWS THAT THE CO-ORDINATE BENCH OF THIS TRIBUNAL, AFTER CONSIDERING THE ITA NOS.447 & 448/CHNY/2019 :- 3 -: IDENTICAL SITUATION IN RESPECT OF CLAIMING DEDUCTIO N U/S.35(1)(II) OF THE ACT, HAS HELD AS FOLLOWS:- 11. COMING TO THE ISSUE OF THE DONATIONS IN RESPEC T OF WHICH, THE ASSESSEE HAS CLAIMED WEIGHTED DEDUCTION U/S.35(1)(I I) OF THE ACT, IT IS NOTICED THAT THE AO HAS DISBELIEVED THE DONATIONS O N THE BASIS OF STATEMENT RECORDED FROM ONE MR.SWAPAN RANJAN DAS GU PTA, ONE OF THE MAJOR SHAREHOLDERS OF HHBHRF AND ON ACCOUNT OF A LE TTER FROM CROSS AND IN RESPECT OF M/S.SHGPH ON THE BASIS OF SURVEY REPORT. IT IS NOTICED THAT THE ONUS OF PROVING THE GENUINENESS OF THE DONATION RESTS ON THE ASSESSEE. HOWEVER, THE AO HAS TAKEN UP HIMS ELF THE ONUS TO DISPROVE THE GENUINENESS OF THE DONATION MUCH BEFOR E THE ASSESSEE HAS PROVED THE GENUINENESS OF THE DONATION. WHEN A N ASSESSEE STEPS FORWARD TO GIVE DONATIONS OF RS.1.25 CRS, RS.25.00 LAKHS, RS.1.45 CRS. RESPECTIVELY, THE ASSESSEE WOULD HAVE ADEQUATE REAS ONS TO GIVE SUCH DONATIONS. HERE, IT IS NOTICED THAT THE ASSESSEE H AS NOT BEEN GIVEN ANY OPPORTUNITY TO PROVE THE GENUINENESS BUT THE ASSESS MENT HAS BEEN MADE BASED ON THE EVIDENCES COLLECTED BY THE REVENU E IN THE COURSE OF THE SURVEY CONDUCTED ON THE RESPECTIVE ORGANIZATION S. THIS IS NOT PERMISSIBLE. THIS BEING SO, IN THE INTEREST OF NAT URAL JUSTICE, THE ISSUE OF THE GENUINENESS OF THE DONATIONS ARE RESTORED TO THE FILE OF THE AO FOR RE-ADJUDICATION. THE AO MUST KEEP IN MIND THAT THE ONUS OF PROVING THE DONATIONS ARE ACTUALLY DONATIONS AND NOT ACCOMM ODATION ENTRIES AND THAT THE SAID ORGANIZATIONS WERE ELIGIBLE FOR C LAIMING DEDUCTION U/S.35(1)(II) OF THE ACT RESTS ON THE ASSESSEE. IF THE AO DOES HAVE ANY EVIDENCE TO THE CONTRARY, IT IS TO BE PUT TO THE AS SESSEE FOR HIS REBUTTAL. THE ASSESSEE SHALL PRODUCE THE RECIPIENTS OF THE DO NATION FOR EXAMINATION ALONG WITH THE EVIDENCES TO PROVE THE R ECEIPT OF THE DONATION. THE INTERNAL COMMUNICATIONS OF THE REVEN UE ARE EVIDENCES FOR DRAWING AN OPINION ON POSSIBLE WRONG CLAIMS BUT THEY ARE NOT THE FINAL EVIDENCE. THIS BEING SO, THE ISSUE OF THE DO NATION IN THESE APPEALS ARE RESTORED TO THE FILE OF THE AO FOR RE-A DJUDICATION AFTER ITA NOS.447 & 448/CHNY/2019 :- 4 -: GRANTING THE ASSESSEE ADEQUATE OPPORTUNITY TO PROVE THE GENUINENESS OF THE DONATION. AS IT IS NOTICED THAT THE ISSUE RAISED IN ASSESSEE S APPEALS IS IDENTICAL TO THE FACTS DECIDED BY THE CO-ORDINATE BENCH OF THIS TRIB UNAL IN M/S.MEGATRENDS INC., CHENNAI REFERRED TO SUPRA, AND THE ISSUE HAS ALREADY BEEN ADJUDICATED, RESPECTFULLY FOLLOWING THE DECISION OF CO-ORDINATE BENCH OF CHENNAI TRIBUNAL REFERRED TO SUPRA, THE SOLE ISSUE RAISED IN BOTH TH ESE APPEALS OF THE ASSESSEE IS RESTORED TO THE FILE OF ASSESSING OFFICER FOR RE-AD JUDICATION. 5. IN THE RESULT, BOTH THE APPEALS OF ASSESSEE FOR ASSESSMENT YEARS 2013-14 & 2014-15 ARE PARTLY ALLOWED FOR STATISTICA L PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT AFTER CONCLUSIO N OF HEARING ON THE 16 TH SEPTEMBER, 2019 IN CHENNAI. SD/- SD/- ( ) ( INTURI RAMA RAO ) /ACCOUNTANT MEMBER ( ) (GEORGE MATHAN) /JUDICIAL MEMBER /CHENNAI, 3 /DATED: 16 TH SEPTEMBER, 2019. K S SUNDARAM , *45 65 /COPY TO: 1. ) /APPELLANT 4. 7 /CIT 2. *+) /RESPONDENT 5. 5 * /DR 3. 7 ( ) /CIT(A) 6. /GF