DEVAJYOTI N. BHATTACHARYA, MUMBAI V. ACIT- 17 (1), MUMBAI

ITA 5051/MUM/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 3163 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-03-2020
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: D
• Assessment Year: 2013-2014
• Appeal Filed On: 31-08-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: JYOTI LAKSHMI NAYAKLD
• Assessee Lawyers: SAMEER G DALALLD
• Keywords: Charitable institution
• Section: 132

Judgement Text

ITA NO.5051/MUM/2018 ASSESSMENT YEAR :2013-14 DEVAJYOTI N. BHATTACHARYA 1 IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI , , BEFORE HONBLE SHRI MAHAVIR SINGH, VP AND HONBLE SHRI MANOJ KUMAR AGGARWAL, AM ./ I.T.A. NO.5051/MUM/2018 ( / ASSESSMENT YEAR : 2013-14 ) DEVAJYOTI N. BHATTACHARYA C/O. ADITYA BIRLA MANAGEMENT CORPORATION PVT.LTD. BIRLA AURORA, LEVEL 17 DR. ANNIE BESANT ROAD WORLI, MUMBAI- 400 030. / VS. A CI T - 17(1) MUMBAI. %& ./ ./PAN/GIR NO. AADPB-0965-A ( &( /APPELLANT ) : ( )*&( / RESPONDENT ) ASSESSEE BY : SHRI SAMEER G. DALAL-LD.AR REVENUE BY : MS. JYOTI LAKSHMI NAYAK-LD. DR / DATE OF HEARING : 05/02/2020 / DATE OF PRONOUNCEMENT : 12/03/2020 / O R D E R MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. AFORESAID APPEAL BY ASSESSEE FOR ASSESSMENT YEAR [IN SHORT REFERRED TO AS AY] 2013-14 CONTEST THE ORDER OF L D. COMMISSIONER OF INCOME-TAX (APPEALS)-55, MUMBAI, [IN SHORT REFERRED TO AS CIT(A)], APPEAL NO. CIT(A)-55/ACIT -17(1)/IT-406/2017-18 DAT ED 19/06/2018. THE ONLY GROUND PRESSED BEFORE US IS GROUND NO. 2 W HICH READ AS UNDER:- ITA NO.5051/MUM/2018 ASSESSMENT YEAR :2013-14 DEVAJYOTI N. BHATTACHARYA 2 2. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) - 55, MUMBAI ['LD. CIT (A) 11 ] ERRED IN CONFIRMING THE ASSESSING OFFICER'S ACTION TO DISALLOW DEDUCTION CLAIMED U/S.35AC OF RS.15,00,000/- ON ACCOUNT OF DONATION G IVEN BY THE APPELLANT. IT IS RESPECTFULLY SUBMITTED THAT APPELLANT HAS GIV EN DONATION TO THE REGISTERED CHARITABLE TRUST BY ACCOUNT PAYEE CHEQUES RELYING O N THE DOCUMENTS PRODUCED BEFORE HIM BY THE TRUSTEE OF THE TRUST. ALSO APPELL ANT HAS SUBMITTED THE RECEIPTS ISSUED BY THE TRUST TO THE A.O. AT THE TIME OF SCRU TINY PROCEEDINGS. MERELY ON THE BASIS OF SURVEY CONDUCTED BY INVESTIGATION WING, TH E DONATION SHOULD NOT BE DISALLOWED. AS EVIDENT, THE SOLE ISSUE THAT ARISES FOR OUR CONS IDERATION IS ASSESSEES CLAIM U/S 35AC FOR RS.15 LACS. 2. THE LD. AUTHORIZED REPRESENTATIVE FOR ASSESSEE ( AR), AT THE OUTSET, SUBMITTED THAT SIMILAR ISSUE AROSE IN ASSES SEES OWN CASE FOR AYS 2009-10, 2012-13 & 2014-15 BEFORE THIS TRIBUNAL VIDE ITA NOS.5874-76/MUM/2018 COMMON ORDER DATED 30/09/2019 WHEREIN SIMILAR DEDUCTION CLAIMED BY THE ASSESSEE HAS BEEN ALLOWED, FINDING MERITS IN THE FACTUAL MATRIX. THE COPY OF THE ORDER HAS BEEN PLACED ON RECORD. THE LD. DR SUBMITTED THAT THE DONATIONS WER E NOT GENUINE AND THEREFORE, THE DEDUCTION HAS RIGHTLY BEEN DISALLOWE D TO THE ASSESSEE. 3. BRIEFLY STATED, THE ASSESSEE WAS ASSESSED U/S 14 3(3) ON 19/02/2016 WHEREIN DEDUCTION OF RS.15 LACS AS CLAIM ED BY THE ASSESSEE U/S 35AC WAS DENIED IN VIEW OF THE FACT TH AT THE ASSESSEE HAD MADE CONTRIBUTION OF RS.15 LACS TO ONE NAVJIVAN CHARITABLE TRUST . HOWEVER, THE SAID TRUST WAS SUBJECTED TO SEARCH ACT ION U/S 132 ON 27/10/2014 WHEREIN IT TRANSPIRED THAT ALL THE EXPEN SES OF THE SAID TRUST WERE BOGUS AND DONATIONS RECEIVED IN CHEQUES WERE R ETURNED IN CASH TO ALL THE DONORS AFTER DEDUCTION OF NOMINAL COMMISSIO N. THE ASSESSEE DEFENDED THE SAME BY SUBMITTING THAT THE DONATIONS WERE GIVEN THROUGH ITA NO.5051/MUM/2018 ASSESSMENT YEAR :2013-14 DEVAJYOTI N. BHATTACHARYA 3 BANKING CHANNELS ON THE BASIS OF DOCUMENTS PRODUCED BY THE TRUSTEE BEFORE THE ASSESSEE. AS PER THESE DOCUMENTS, THE TR UST WAS DULY REGISTERED U/S 12A, HOLDING A VALID PAN AND ALSO RE GISTERED UNDER FCRA, 1976. BELIEVING THE SAME, THE DONATIONS WERE GIVEN IN GOOD FAITH WHICH WERE DULY SUPPORTED BY THE RECEIPTS ISSUED BY THE T RUST TO THE ASSESSEE. THEREFORE, THE CLAIM OF DEDUCTION U/S 35AC WAS VALI D CLAIM. HOWEVER, NOT CONVINCED, THE SAID DEDUCTION WAS DENIED TO THE ASSESSEE. THE SAME UPON CONFIRMATION BY LEARNED FIRST APPELLATE A UTHORITY, IS UNDER CHALLENGE BEFORE US. 4. UPON DUE CONSIDERATION, WE FIND THAT THE ASSESSE E WAS DENIED AFORESAID DEDUCTION, IN MORE OR LESS SIMILAR FACTUA L MATRIX, IN AYS 2009- 10, 2012-13 & 2014-15 WHICH WAS AGITATED BEFORE THI S TRIBUNAL VIDE COMMON ORDER DATED 30/09/2019. THE COORDINATE BENCH , VIDE PARA-7, HELD THAT THAT THE ASSESSEE HAD ADDUCED EVIDENCE TO ESTABLISH THAT PAYMENT OF DONATION TO NAVJIVAN CHARITABLE TRUST AND THE ONUS HAD SHIFTED TO LD.AO. HOWEVER, LD. AO FAILED TO CONDUCT ANY INQUIRY BEFORE MAKING DISALLOWANCE AND DID NOT BROUGHT ON RECORD A NY FACT TO ESTABLISH THAT DONATION GIVEN BY THE ASSESSEE WAS SUBSEQUENTL Y RETURNED BACK IN CASH EXCEPT MERE ALLEGATIONS. RELIANCE WAS PLACED O N THE DECISION OF HONBLE DELHI HIGH COURT IN CIT V/S A AND A BAKERY P. LTD. (2008 302 ITR 51) TO SUPPORT THE CONCLUSIONS. FINALLY, THE DISALLOWAN CE WAS DELETED. WE FIND THAT FACT TO BE PARI-MATERIA THE S AME IN THIS YEAR. THE ASSESSEE HAS DULY DISCHARGED THE ONUS CASTED UPON H IM AND IT WAS INCUMBENT UPON LD. AO TO REFUTE THE SAME. HOWEVER, NO SUCH INQUIRY HAS BEEN CONDUCTED AND THE DISALLOWANCE HAS BEEN MA DE ON MERE ITA NO.5051/MUM/2018 ASSESSMENT YEAR :2013-14 DEVAJYOTI N. BHATTACHARYA 4 ALLEGATIONS. THEREFORE, RESPECTFULLY FOLLOWING THE EARLIER ORDER, WE DELETE THE DISALLOWANCE AS MADE BY LD. AO. 5. THE APPEAL STANDS PARTLY ALLOWED IN TERMS OF OUR ABOVE ORDER. ORDER PRONOUNCED IN THE OPEN COURT ON 12 TH MARCH, 2020. SD/- SD/- (MAHAVIR SINGH) (MANOJ KUMAR AGGARWAL) / VICE PRESIDENT / ACCOUNTANT MEMBER MUMBAI; DATED : 12/03/2020 SR.PS, JAISY VARGHESE !'! / COPY OF THE ORDER FORWARDED TO : 1. &( / THE APPELLANT 2. )*&( / THE RESPONDENT 3. 1 ( ) / THE CIT(A) 4. 1 / CIT CONCERNED 5. 23),4 , 4 , / DR, ITAT, MUMBAI 6. 3567 / GUARD FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI.