1. The assessee has come up in appeal against the order of the Commissioner (Appeals) wherein he has upheld the action of the ITO in (a) not granting deduction under Section 80G of the Income-tax Act, 1961 ('the Act') and (b) in charging interest under Section 139(8) of the Act.
2. The assessee is an individual. The assessment year is 1977-78 and the relevant previous year is the financial year ended on 31-3-1977.
3. During the relevant previous year, the assessee donated Rs. 7 lakhs to Shreyas Foundation in the form of fixed deposit receipt and claimed deduction as contemplated under Section 80G. The ITO, however, disallowed the assessee's claim in the following manner : The assessee has claimed deduction under Section 80G in respect of the fixed deposit of Rs. 7 lakhs stated to have been donated to Shreyas Foundation. The assessee's claim in this regard is not admissible. Under Explanation 5 to Section 80G, it is laid down that no deduction is allowable under Section 80G in respect of any donation unless such donation is of a sum of money. The donation of fixed deposit receipt cannot be said to be of a sum of money.
Moreover, the assessee has not produced any evidence to show that the Shreyas Foundation was recognised for the purpose of deduction under Section 80G for the assessment year 1977-78. In the circumstances, the assessee's claim for deduction under Section 80G is rejected.
4. In appeal before the Commissioner (Appeals) the assessee once again pressed for obtaining deduction as contemplated under Section 80G in respect of the donation of Rs. 7 lakhs made to Shreyas Foundation.
Referring to Explanation 5 inserted in Section 80G with effect from 1-4-1976, the Commissioner (Appeals) confirmed the action of the ITO in the following manner : The Explanation is specific and has been inserted with effect from 1-4-1976 with a view to prohibiting claims of deductions under Section 80G on donations made otherwise than in cash. The requirement now is that the donation should be in a 'sum of money' before it can qualify for deduction under Section 80G. The fixed deposit receipt is only a title to receive an amount with or without interest as the case may be, on the maturity of the term of deposit and whether the amount will in fact be received on such date may further depend on the financial soundness, Capacity and liquidity position of the company in which the deposit is made, specially so when the deposit is with a private limited company. It may also involve a trust in ultimate litigation, theoretically speaking.
Therefore, donation of a fixed deposit receipt cannot be called donation of 'a sum of money'. On the facts of the appellant's case, therefore, the ITO is justified in refusing to allow deduction under Section 80G to the appellant in respect of donation to Shreyas Foundation of fixed deposit of Rs. 7 lakhs. I, therefore, uphold the ITO's order on this point.
5. The learned counsel for the assessee vehemently argued that the income-tax authorities were not justified in denying deduction as contemplated under Section 80G by looking to the form of the matter instead of substance. In this connection, he stated that the fixed deposit handed over to Shreyas Foundation was for one year only and at the end of the year Shreyas Foundation encashed the sum and redeposited in another fixed deposit in its own name. He further stated that the interest earned on the fixed deposit was also handed over to Shreyas Foundation. If all these facts are considered in proper perspective, what the assessee had donated to Shreyas Foundation was nothing but money. In support of his submission, the learned counsel for the assessee relied on the decision of the Hon'ble Gujarat High Court in the case of CIT v. Smt. Dhirajben R. Amin [1983] 141 ITR 875, more particularly the following observation : From the resume of the case law discussed above it becomes crystal clear that the provisions of Section 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 form in which it is made. If on the facts, having regard to the substance of the transaction, the Court is satisfied that it is essentially a donation in cash, the rebate under Section 80G would be admissible to the assessee. If it is a donation in kind, pure and simple, it would clearly fall outside the purview of Section 80G of the Act....(p. 884) Further, the learned counsel for the assessee stated that in the said decision the Hon'ble High Court has also considered Explanation 5 inserted in Section 80G with effect from 1-4-1976 in the following manner : ... 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 pronouncements went to the length of saying that even donations in kind would fall within the purview of Section 80G of the Act. According to the observations 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 Section 80G of the Act. All that the decisions have stated is that the Courts must examine the substance of the donation and if on an examination 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 Explanation 5 by the Finance Act, 1976, with effect from 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. Assuming for the sake of argument that Explanation 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 Explanation the view was that only donations in cash would qualify for rebate under Section 80G of the Act. We, therefore, do not consider it necessary to examine in detail the contention of the learned counsel for the revenue that Explanation 5 inserted by the Finance Act, 1976, has retrospective application. Even without the insertion of Explanation 5 as pointed out earlier, Courts have taken the view that Section 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 cash 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. (p. 884) Before we part, we must mention that the learned counsel for the assessee desired that the assessee should be given an opportunity to prove that in substance the donation was in cash and not in kind. We are afraid we cannot permit the assessee to make out a totally new case at this belated stage which would run counter to the stand taken before the authorities below. The statement of case clearly shows that the assessee donated shares and not cash. We, therefore, cannot accede to the assessee's request to permit her to a second round of litigation by remanding the case with a view to giving her an opportunity to make out a case, hitherto not pleaded, that the donation, though ex facie of shares, was in substance of cash. (p.
886) and stated that the decision in that case had gone against the assessee as the assessee was not allowed to prove that in substance the donation was in cash and not in kind. However, since in the instant case, there is sufficient material brought on record that the donation was in fact made in cash and not in kind, the income-tax authorities ought to have accepted the assessee's claim for deduction made under Section 80G.6. The learned representative for the department on the other hand strongly supported the orders of the income-tax authorities. In this connection, he further submitted that after the insertion of Explanation 5 in Section 80G, with effect from 1-4-1976, only donations made in cash would qualify for deduction under Section 80G. Inviting our attention to the Law Laxicon by Venkataraman, Vol. II, pp. 929 and 930, he further submitted that fixed deposit receipts cannot by any stretch of imagination be termed as money. He further submitted that fixed deposit receipts are not generally transferable and are not treated as legal tender. They are simply actionable claim which cannot be reduced to money equivalent to their face value. In the instant case, the fixed deposit receipts are in fact 'members loan receipt' of a private limited company, viz., Shahibag Entrepreneurs (P.) Ltd. and, therefore, till the day of maturity of such receipt its value in money may go down if the said company is in a bad financial shape. In other words, the learned departmental representative wanted to impress upon us that since the assessee had donated Rs. 7 lakhs in kind, she was not entitled to deduction as contemplated under Section 80G. In support of his submission, the learned departmental representative relied on the decision of the Hon'ble Gujarat High Court in the case of Bhagwandas Narayandas v. CIT [1975] 98 ITR 194, wherein while interpreting the expression 'where any money, bullion, jewellery or other valuable article or thing' (assets) occurring in Section 132(5) of the Act, the Hon'ble High Court held that "therefore, by using the words 'valuable article or thing' what the Legislature has intended to imply is that the assets covered by these words should be such as could be converted into cash." In that case, the Hon'ble High Court had rejected the submissions made on behalf of the assessee that fixed deposit receipts should be considered as 'valuable article or thing' within the meaning of Section 132(5). He also referred to the following paragraph of the memorandum explaining the provisions of the Finance Bill, 1976 : 61. Donations in kind not to qualify for tax concession.-Donations made to certain funds, charitable institutions, etc., qualify for tax concession under Section 80G of the Income-tax Act. The deduction under this section is available in respect of 'sums' paid by the taxpayer to funds, charitable institutions, etc., referred to in that section and not to donations in kind. The existing provisions in Section 80G of the Income-tax Act have, however, been interpreted in certain judicial pronouncements to include even donations in kind. As donations in kind were not intended to qualify for this concession, it is proposed to make a provision for the removal of doubts clarifying that no deduction will be allowed under Section 80G unless the donation is a sum of money, that is to say, it is made in cash (or by cheque, bank draft, etc.) and not in kind.- [1976] 102 ITR (St.) 193.
and submitted that after the insertion of Explanation 5 in Section 80G the donations made in cash or by cheque, bank draft, etc., would qualify for deduction under Section 80G and no other donations in kind.
He also relied on the decision of the Hon'ble Gujarat High Court in the case of CWT v. Sadiqali Samsuddin [1985] 152 ITR 190 wherein while dealing with a reference under the Wealth-tax Act, 1957, the Hon'ble Gujarat High Court had held that the amount lying in fixed deposit could not be treated as 'cash' under Section 7(1) of the said Act. He, therefore, urged that we should uphold the order of the Commissioner (Appeals) on this point.
7. We have carefully considered the rival submissions of the parties and we find considerable force in the stand taken on behalf of the revenue. Reading closely the decision in the case of Smt. Dhirajben R.Amin (supra), we are of the view that the Hon'ble High Court has not given its decision on the implication of the insertion of Explanation 5 in Section 80G. In the extract quoted above the Hon'ble High Court has observed thus that 'we, therefore, do not consider it necessary to examine in detail the contention of the learned counsel for the revenue that Explanation 5 inserted by the Finance Act, 1976, has retrospective application. Further, in that very paragraph the Hon'ble High Court has clearly observed that Section 80G is attracted only if the donation is in cash and not in kind. Since the provisions of Explanation 5 were not examined in detail, the Hon'ble High Court had observed that one has to see the substance of the matter and not the form. It is pertinent to note that in the said decision the Hon'ble High Court was concerned with the assessment year prior to the assessment year 1976-77 when Explanation 5 to Section 8CG was not brought on the statute. However, in the instant case, we are concerned with the assessment year 1977-78 and, therefore, we have to consider the provisions of Explanation 5 to Section 80G with a view to finding out whether the assessee would be entitled to claim deduction as contemplated under Section 80G in respect of the donation of Rs. 7 lakhs made by her in the form of fixed deposit receipts/members loan receipt. When the language of the relevant provisions of the Act is so clear and eloquent, it is not possible for us to accept the submissions made on behalf of the assessee that in order to decide the point at issue, we should see the substance of the matter instead of the form. In this view of the matter, we are of the considered opinion that the decision in the case of Smt. Dhirajben R. Amin (supra) relied on behalf of the assessee would not be of any help to her. The Hon'ble Gujarat High Court itself had an occasion to consider the true meaning of the expression 'cash' in other two decisions relied on behalf of the revenue. On going through those decisions, we find considerable force in the submissions made on behalf of the revenue that since in the instant case the assessee had made donation in kind, she was not entitled to claim deduction as contemplated under Section 80G. In this view of the matter, we have no hesitation in upholding the order of the Commissioner (Appeals) on this point.
8. While framing the assessment, the ITO had charged interest under Section 139(8) in the following manner : The assessee has filed an estimate on 15-3-1977 and the advance tax payment has been credited on 17-3-1977 which is not on or before the stipulated date. As per Section 139(8) interest is to be calculated on the amount of tax payable as reduced by the advance tax, if any, paid. The advance tax is payable in the case of the assessee on 15th day of March. However, the advance tax has been credited on 17-3-1977. Hence it cannot be said that the payment made by the assessee is an advance tax payment as per Section 211 of the Income-tax Act. Hence interest under Section 139(8) is to be calculated without giving credit for the tax of Rs. 1,71,225 which should not be considered as advance tax payment.
9. In appeal, relying on the decision of the Hon'ble Gujarat High Court in the case of Chandrakant Damodardas v. ITO [1980] 123 ITR 748, the assessee contended that the the ITO was not justified in charging interest under Section 139(8) ignoring the payment of Rs. 1,71,225 made by her by cheque on 15-3-1977. Here also, the Commissioner (Appeals) upheld the action of the ITO as under : In my view this contention of the appellant's representative cannot be accepted, when the letters of the law are clear and unambiguous, the interpretation as put according to the letters of the law prevails and nothing can be read in or inserted into such letters to give them any wider or different meaning. The amendment has been done to remove hardship and is not clarificatory but extends the date for filing the estimate to a date which is same as the date of the last instalment due. Since the estimate filed on 15-3-1977 was on the date the last instalment was due and was not filed before the date when the last instalment was due, it cannot be called as an estimate in accordance with Section 212 and the payment in question cannot thus be classified as 'advance tax'. It is a payment made otherwise than by way of advance tax. Under Section 139(8), this amount would have been deductible if it had been paid as advance tax but was not deductible when it was paid otherwise than by way of advance tax or TDS. In this view of the legal position, therefore, I uphold the ITO's action in refusing to allow deduction of the amount of Rs. 1,71,225 from assessee's tax while calculating the penal interest under Section 139(8).
10. The learned counsel for the assessee once again urged that in view of the aforesaid decision of the Hon'ble Gujarat High Court in the case of Chandrakant Damodardas (supra), the income-tax authorities were not justified in charging interest under Section 139(8) without considering the payment of Rs. 1,71,225 made by the assessee on 15-3-1977.
11. The learned departmental representative on the other hand, once again, relied on the order of the Commissioner (Appeals).
12. On due consideration of the rival submissions of the parties, we are of the opinion that in view of the decision of the Hon'ble Gujarat High Court in the case of Chandrakant Damodar das (supra), the stand taken on behalf of the assessee is unassailable. We would, therefore, direct the ITO not to charge interest under Section 139(8) and modify the demand accordingly.
1. I have gone through the order of my learned Brother. I am not in a position to persuade myself with the decision taken in respect of ground (a) as mentioned in the order. In respect of ground (b) I am in agreement. In my opinion, the benefit of deduction under Section 80G is required to be given to the assessee. The reasons are as follows : 1.1 The amendment made in the Act by insertion of Explanation 5 to Section 80G by the Finance Act, 1976 with effect from 1-4-1976 is only a clarificatory. Looking to the history of the judicial pronouncements of various High Courts and the facts involved it is clear that even before the amendment the Courts have proceeded accepting the position of law that only donations in cash were entitled to deduction and not the donation in kind. Memorandum explaining the provisions of the Finance Bill, 1975 states that certain judicial pronouncements gave benefit to donation in kind also. This was not the mtention. But then the first decision on this issue came from the Bombay High Court in the case of CIT v. Associated Cement Co. Ltd. [1968] 68 ITR 478, the decision was dated 5-10-1967 establishing a ratio that substance of the transaction was required to be considered. This ratio of decision held the field for several years and the department had not chosen to carry the matter in appeal to the Supreme Court. From this it becomes evident that even the department endorsed the view of the Bombay High Court regarding theory of substance vis-a-vis donation in cash actually.
However, the Andhra Pradesh High Court held that donation has to be on the basis of payment in cash. But then the controversy was more complicated on the reading of the ratio of the decision of the Bombay High Court and the Andhra Pradesh High Court as to what was required to be considered whether actual cash or cash in substance or what was required to be denied, for the purpose of benefit of deduction, was actually donation in kind. From the amendment carried out it appears that what is intended is, to achieve that donation, not made in cash (either actual or in substance), should be disqualified for the purpose of deduction. Because even before the amendment inserting 'sum of money', the 'sum' was always treated as meaning quantity of money. Therefore, literally, there does not appear to be any change in the language with regard to the term 'donation in cash'.
1.2 in [1976] 102 ITR (St.) 178-193 Clause 61 explains the relevant change. After dealing with the aspect of 'donations in kind' not intended to qualify for concession it states no deduction will be allowed under Section 80G unless the donation is a 'sum of money', that is to say, it is made in cash (or by cheque, bank draft, etc.) and not in kind. What is meant by the word 'etc' in the bracket remains unexplained because all the modes which can be termed or envisaged as cash payment are exhausted after mentioning the words cash, cheque, bank draft. The word 'etc' contemplates some other mode by which donation, not in kind, can be envisaged. And this is the mode supporting the theory of substance.
1.3 Looking to the scheme of taxation in respect of charitable institutions under the Direct Tax Laws it cannot be said that there is any retrograde step so as to ensure encouragement to charitable sentiments of Indian people. In fact, there are provisions which encourage such philanthropic sentiments, the amendments made are only to rationalise the scheme of taxation governing the charitable institutions and to ensure maximum benefit through the purpose for which the charitable institutions are established.
1.4 At p. 885 their Lordships of the Gujarat High Court in the case of Smt. Dhirajben R. Amin (supra) clearly states that the amendment made by the Finance Act, 1976 does not alter the position in law.
1.5 In the case of the assessee the donor is one of the trustees of the trust. The loan receipt issued by Shahibag Entrepreneurs (P.) Ltd. represents the money invested by the donor in family concern.
The letters issued by the donor trust, etc., only reflect the intention of the donor to transfer the moneys represented by loan receipt. The fixed deposit receipt has in fact matured and moneys collected on 14-8-1978 and again re-deposited with First National City Bank, Bombay on 22-8-1978. It cannot be the case of the revenue that the assessee could have very easily encashed the fixed deposit without any monetary loss or inconvenience to the company where moneys were lying so as to strictly comply with the literal meaning of donation in cash. In fact, it is not known whether as per the terms, premature surrender was possible or not. Nor the donor or the donee would require such premature surrender of receipt because it was after all earning interest at the rate of 12 per cent and again backed by guarantee. The fixed deposit receipt was duly endorsed in favour of the trustees of the doneetrust and the letter of guarantee issued by the guarantor was also assigned in favour of the trustees.
All these factual data only lead to the inference that the transaction of donation was, in substance the donation in cash and not in kind. The ratio of decision of the Gujarat High Court in the case of Smt. Dhirajben R. Amin (supra) clearly applies to the facts of the case in support of the assessee's stand, and, therefore, the matter is required to be decided in favour of the assessee.
Incidentally, a question was put to the learned departmental representative as to what can be the intention behind denying the benefit of Section 80G, to donation in kind No convincing reasons came to be advanced except that of difficulty in putting the value in money terms of the donation in kind. I have tried to find out convincing reasons for same but in vain. Even no light could be drawn from judicial pronouncements or notes on clauses of amending Act. This further fortifies the views that substance theory of donation in cash still holds good. To put simply, if the donation is convertible into money or is required to be converted into money at future date because of characteristic of donation as put in contradistinction to donation in kind simpliciter which cannot be converted into money unless something in nature of transfer involving sale or exchange takes place consequent to decision of the trustees of the charitable institution, the donation still retains the character of donation in cash for the purpose of benefit under Section 80G.2. Therefore, in my opinion, the order of the Commissioner (Appeals) is required to be set aside and the claim of the assessee is required to be up-held as now, even the donee trust is also held to be exempt under Section 11 of the Act as per the Tribunal's decision, the other condition also having been satisfied.
Because of the difference between the two Members who heard the appeal following question is raised for the opinion of the Third Member : Whether in law and on facts and circumstances of the case, the assessee is entitled to deduction under Section 80G of the Act as claimed 1. There has been a difference of opinion between the learned members who heard this appeal originally. The point of difference has been stated as under : Whether, in law and on facts and circumstances of the case, the assessee is entitled to deduction under Section 80G of the Act as claimed 2. Briefly stated, the relevant facts are that the assessee, an individual, claimed deduction under Section 80G, in respect of a fixed deposit receipt of Rs. 7 lakhs which was donated to Shreyas Foundation during the previous year relevant for the assessment year 1977-78. The ITO rejected the claim observing that Explanation 5 to Section 80G requires in terms that the donation, to qualify for deduction under Section 80G, should be 'a sum of money' and that fixed deposit receipt is not a sum of money. He also observed that there was no evidence produced by the assessee to show that Shreyas Foundation was recognised for the purpose of Section 80G for the assessment year 1977-78. For the reasons given in paragraph 6 of his order, the Commissioner (Appeals) has agreed with the ITO. As already stated, the learned Members have differed on the issue.
It is pertinent to mention that the Commissioner (Appeals) had not expressed himself on the question whether the doneetrust is an approved institution for the purpose of Section 80G for the assessment year 1977-78. The learned Judicial Member, who has rejected the assessee's claim and confirmed the order of the Commissioner (Appeals) has confined himself to only one aspect of the matter, namely, whether the fixed deposit receipt is or is not 'a sum of money'. However, while accepting the assessee's claim for deduction, the learned Accountant Member has not only held that in circumstances of the case the fixed deposit receipt could be treated as 'a sum of money' but has also observed that the income of doneetrust is exempt under Section 11 in view of the Tribunal's decision in that case.
3. Though the point of difference is stated in broad terms, the point in dispute is whether the fixed deposit receipt is 'a sum of money', there being no dispute about the proposition that after the insertion of Explanation 5 in Section 80G, the donation to qualify for deduction under Section 80G, has to be 'a sum of money'. In this context, it may be desirable to mention that the fixed deposit was in the name of the assessee with Shahibag Entrepreneurs (P.) Ltd. Shahibag Entrepreneurs (P.) Ltd. is a family concern. The fixed deposit was sufficiently secured and on maturity, on 14-8-1978, Shahibag Entrepreneurs (P.) Ltd. made the payment of Rs. 7 lakhs to Shreyas Foundation direct by a crossed cheque debiting the assessee's account. The short question is whether in the circumstances of the case, the donation of the fixed deposit receipt could be equated with 'a sum of money' within the meaning of Explanation 5 to Section 80G.4. It does not require an argument that fixed deposit receipt is not 'a sum of money'. In fact, both the learned members have no quarrel with this proposition.
5. Relying on the orders of the learned Accountant Member, it was urged before me on behalf of the assessee that the Bombay High Court has held in the case of Associated Cement Co. Ltd. (supra), that substance of the transaction is required to be considered in such matters and that the same view has been taken by the Gujarat High Court in the case of Smt. Dhirajben R. Amin (supra). Reliance was also placed on the instructions issued by the CBDT to explain the purpose of Explanation 5 to Section 80G finding place in [1976] 102 ITR (St.) 178 to 193 (Clause 61) where after dealing with the aspect of 'donations in kind' not intended to qualify for concession, it is stated that no deduction will be allowed under Section 80G unless the donation is 'a sum of money' that is to say, it is made in cash (or by cheque, bank draft, etc.) and not in kind. In particular, emphasis is laid on the expression 'etc' used by the CBDT. It was also pointed out on the strength of the Gujarat High Court's decision in Smt. Dhirajben R. Amin's case (supra) that the amendment made by the Finance Act, 1976, in the form of insertion of Explanation 5 in Section 80G does not alter the position in law. In other words, the submission is that Explanation 5 does not make any material change in the situation and that as held by the Bombay and Gujarat High Courts in the above decisions, the substance of the transaction is material rather than the form. For this purpose, it is again emphasised that the fixed deposit receipt, in the present case, could be equated with 'a sum of money'.
6. The departmental representative has, on the other hand, strongly relied on the order of the learned Judicial Member. It is reiterated on behalf of the department that fixed deposit receipts cannot, by any stretch of imagination, be equated with the expression 'a sum of money', particularly when the fixed deposit receipts are not transferable and not treated as legal tender. According to him, fixed deposit receipt is at best, an actionable claim which cannot be reduced to money equivalent of its face value. Reliance in this behalf is placed on the Gujarat High Court's decision in the case of Bhagwandas Narayandas (supra) and another decision of the same High Court in the case of Sadiqali Samsuddin (supra).
7. Having heard the parties and after going through the orders of the learned members carefully, I am of the view that, ordinarily, fixed deposit receipt cannot be equated with 'a sum of money'. In order to consider whether the decisions relied upon by the counsel for the assessee support his claim, I have carefully gone through those decisions. The section involved in the Bombay High Court's decision in the case of Associated Cement Co. Ltd. (supra) was Section 15B of the Indian Income-tax Act, 1922. No doubt, Section 15B had also used the expression 'in respect of any sums paid as donations'. The provision like Explanation 5 to Section 80G, which in terms provides that 'no deduction shall be allowed unless the donation is of a sum of money', was not there in Section 15B. Therefore, on the face of it, the Bombay High Court's decision is not applicable in this case. The assessment year involved in Gujarat High Court's decision in the case of Smt.
Dhirajben R. Amin (supra) was the assessment year 1972-73. However, the Gujarat High Court has clearly observed that the Explanation 5 is only for removal of doubts, if any and has not made any material change in the situation and that even before the insertion of Explanation 5 none of the judicial pronouncements had laid down in categorical terms that donations in kind fall within the purview of Section 80G. All that the earlier decisions had stated was that Courts must examine the substance of the donation and if on an examination of the relevant evidence it found that the donation was 'a sum of money', it should grant the deduction sought by the assessee. In fact, this very view has again been taken by the Gujarat High Court in its decision in the case of CIT v. Saurashtra Cement & Chemical Industries Ltd. In this case, in which the assessment years 1970-71 and 1971-72 were involved, the assessee, which manufactures cement, had donated cement of a particular value to the Collector of Surat and Arya Kanya Mahavidyalaya for construction of its building. There was no dispute that only sums of money donated qualified for deduction under Section 80G. The short question was whether, in the circumstances of the case, it could be said that the donation of cement was donation of 'a sum of money'. Since the Tribunal had not given a finding whether the substance of the transaction was to make the donation in cash, following its earlier decisions in the cases of Saurashtra Cement & Chemical Industries Ltd. v. CIT [1980] 123 ITR 669 and Smt. Dhirajben R. Amin (supra), the Gujarat High Court sent back the matter to the Tribunal for recording a finding in that regard.
From the discussions above, I am inclined to take the view that so far as the State of Gujarat is concerned, the law is that in order to qualify for deduction under Section 80G, the donation has to be 'a sum of money'. However, the expression 'a sum of money' does not always mean 'cash' and it is desirable to consider the substance of the transaction.
8. With this end in view, I have carefully considered the facts of this case vis-a-vis the facts in the other cases cited before me. I am of the view that the fixed deposit receipt which was likely to mature in the next year cannot be said to be 'a sum of money'. As regards the emphasis laid on the instructions issued by the Central Board of Revenue, where the word 'etc' had been used, I do not agree with the counsel for the assessee that the expression 'etc' will include within it fixed deposit receipt. On the face of it, it may include pay order and travellers cheque. In any event, the word 'etc' will take colour from the earlier expression used. Having regard to the above discussion, I am inclined to agree with the learned Judicial Member and hold that the donation of fixed deposit receipt by the assessee in this case to Shreyas Foundation does not qualify for deduction under Section 80G.This order will now go to the Division Bench for deciding the appeal according to the majority view.