Shri Rikhab Chand Jain, Kolkata V. D.C.I.T.,Circle-36, Kolkata

CO 18/KOL/2020

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 9436 (ITAT-KOLKATA)
• Duration Of Justice: 2 month(s) 11 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 19-08-2020
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2012-2013
• Appeal Filed On: 08-06-2020
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SUPRIYO PAL
• Assessee Lawyers: S M SURANA
• Keywords: Set aside
• Section: 14A; 40(a)(ia); 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA C BENCH, KOLKATA (VIRTUAL COURT) (BEFORE SRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER & SRI S.S. GODARA, JUDICIAL MEMBER) I.T.A. NO. 267/KOL/2020 ASSESSMENT YEAR: 2012-13 DCIT, CIRCLE-36, KOLKATA....................................................................................................APPELLANT VS. SHRI RIKHAB CHAND JAIN..........................................................................RESPONDENT [PAN: AEYPJ 0493 A] C.O. NO. 18/KOL/2020 ASSESSMENT YEAR: 2012-13 SHRI RIKHAB CHAND JAIN..............................................................................APPELLANT [PAN: AEYPJ 0493 A] VS. DCIT, CIRCLE-36, KOLKATA................................................................................................RESPONDENT APPEARANCES BY: SH. SUPRIYO PAL, ADDL. CIT, SR. DR, APPEARED ON BEHALF OF THE REVENUE. SH. S.M. SURANA, ADV., APPEARED ON BEHALF OF THE ASSESSEE. DATE OF CONCLUDING THE HEARING : AUGUST 12 TH , 2020 DATE OF PRONOUNCING THE ORDER : AUGUST 19 TH , 2020 ORDER PER J. SUDHAKAR REDDY, AM : THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-10, KOLKATA, [HEREINAFTER THE CIT(A)], PASSED U/S. 250 OF THE INCOME TAX ACT, 1961 (THE ACT), DATED 30.12.2019 FOR THE ASSESSMENT YEAR 2015-16. 2. AFTER HEARING RIVAL CONTENTIONS, WE FIND THAT SIMILAR ISSUES HAVE COME UP BEFORE THIS TRIBUNAL IN THE ASSESSEES OWN CASE FOR THE EARLIER ASSESSMENT YEARS IN ITA NO. 614/KOL/2015 FOR AY 2010-11 AND CO NO. 26/KOL/2015 FOR AY 2010-11 ORDER DATED 06.09.2019 AND THE TRIBUNAL HAS UPHELD THE ORDER OF THE LD. CIT(A) ON CERTAIN ISSUES AND DISMISSED THE REVENUES APPEAL. THE GROUND OF THE CROSS OBJECTION WERE ALLOWED FOR STATISTICAL PURPOSES. 2 I.T.A. NO. 267/KOL/2020 C.O. NO. 18/KOL/2020 ASSESSMENT YEAR: 2012-13 SHRI RIKHAB CHAND JAIN. 3. CONSISTENT WITH THE VIEW TAKEN THEREIN WE HOLD AS FOLLOWS. 4. WE FIRST TAKE UP THE REVENUE APPEAL. GROUND NO. 1 IS ON THE DISALLOWANCE MADE U/S 40(A)(IA) OF THE ACT. THE FINDING OF THE LD. CIT(A) ON THIS ISSUE WAS UPHELD BY THE TRIBUNAL FOR THE AY 2009-10 AS WELL AS FOR THE AY 2010-11. CONSISTENT WITH THE VIEW TAKEN THEREIN WE UPHOLD THE ORDER OF THE LD. CIT(A) AND DISMISS THIS GROUND OF THE REVENUE. 5. GROUND NO. 2 IS ON THE ISSUE OF QUANTIFICATION OF DISALLOWANCE U/S 14A OF THE ACT. THE LD. CIT(A)S ORDER ON THIS ISSUE WAS UPHELD FOR BOTH THE AYS 2009-10 AND 2010-11. THE FINDINGS OF THE LD. CIT(A) IN THIS ORDER ARE SIMILAR TO THE FINDINGS OF THE LD. CIT(A) FOR THE EARLIER ASSESSMENT YEARS. CONSISTENT WITH THE VIEW TAKEN THEREIN BY US ON THIS ISSUE ON EARLIER YEARS WE DISMISS THIS GROUND OF THE REVENUE. 6. GROUND NO. 3 IS ON THE ISSUE OF ADDITION MADE ON ACCOUNT OF INTEREST ON INTEREST- FREE ADVANCES. IN CO NO. 26/KOL/2015 FOR THE AY 2010-11, THE TRIBUNAL HELD THAT INTEREST INCOME CANNOT BE BROUGHT TO TAX ON NOTIONAL BASIS. LD. CIT(A) HAS FOLLOWED THIS DECISION OF THE ITAT IN ASSESSEES OWN CASE AND DELETED THE ADDITION. WE FIND NO INFIRMITY IN THE SAME; HENCE WE DISMISS GROUND NO. 3 OF THE REVENUE. 7. GROUND NO. 4 IS AGAINST THE LD. FIRST APPELLATE AUTHORITY DIRECTING THE AO TO CALCULATE AFRESH EXPENSES OF 1 LAKH CLAIMED BY THE ASSESSEE U/S 35AC. THE LD. CIT(A) AT PARA 14 PAGE 38 OF HIS ORDER HELD AS FOLLOWS: 14. GROUND NO. 4 TAKEN BY THE APPELLANT INDIVIDUAL CONTENDS THAT THE LD. AO WAS INCORRECT IN DISALLOWING A DEDUCTION OF RS.1,00,000/- CLAIMED BY THE APPELLANT U/S 35AC. AFTER PERUSAL OF THE ASSESSMENT ORDER I FIND THAT THERE HAS BEEN NO DISCUSSION OF THE LD. AO IN THE BODY OF THE ASSESSMENT ORDER WHILE MAKING THE IMPUGNED DISALLOWANCE. IN APPEAL THE APPELLANT HAS SUBMITTED A COPY OF THE RECEIPT ISSUED BY M/S MANAV MANDIR MISSION TRUST, DATED 02.03.2012 FOR AN AMOUNT OF RS.1,00,000/-. THE APPELLANT HAS ALSO ENCLOSED A COPY OF THE APPROVAL ACCORDED BY THE APPROPRIATE AUTHORITY NAMELY THE 'NATIONAL COMMITTEE FOR PROMOTION OF SOCIAL & ECONOMIC WELFARE', NEW DELHI AND STATED THAT THE TAX EXEMPTION U/S 35AC WAS APPLICABLE FOR DONATION TO THE SAID M/S MANAV MANDIR MISSION TRUST. IT HAS ALSO BEEN SUBMITTED BY THE APPELLANT THAT SUCH RECEIPTS AND DOCUMENTS WERE FILED BEFORE THE LD. AO BY THE APPELLANT VIDE HIS SUBMISSIONS DATED 11.05.2017. AFTER CAREFULLY EXAMINATION OF THE DOCUMENTS, I OBSERVE THAT PRIMA FACIE THE APPELLANT APPEARS TO BE ELIGIBLE FOR THE DEDUCTION U/S 35AC IN RESPECT OF THE CONTRIBUTION OF RS.1,00,000/-. HOWEVER, THE LD. AO IS DIRECTED TO EXAMINE THE MATTER AND DECIDE AS PER LAW. FOR STATISTICAL PURPOSES GROUND NO. 4 STANDS ALLOWED. 8. WE FIND NO INFIRMITY IN THIS ORDER FOR THE REASON THAT, THE AO WAS ASKED TO EXAMINE THE SAME AND DECIDE THE ISSUE AS PER LAW. THE OBJECTION OF THE REVENUE THAT THE LD. CIT(A) HAS NO POWER TO REMAND THE MATTER TO THE FILE OF THE AO IS CORRECT. THUS, WE 3 I.T.A. NO. 267/KOL/2020 C.O. NO. 18/KOL/2020 ASSESSMENT YEAR: 2012-13 SHRI RIKHAB CHAND JAIN. SET ASIDE THE MATTER TO THE FILE OF THE AO FOR FRESH ADJUDICATION IN ACCORDANCE WITH LAW, TO RECTIFY THIS DEFECT. IN THE RESULT THIS GROUND OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. 9. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLOWED IN PART. 10. NOW WE TAKE UP CO NO. 18/KOL/2020. ALL THE GROUNDS OF THE CROSS OBJECTION SUPPORT THE ORDER OF THE LD. CIT(A). EACH OF THE GROUNDS SAYS THAT THE LD. CIT(A) WAS JUSTIFIED IN TAKING A PARTICULAR VIEW ON THE ISSUE. AS WE HAVE UPHELD THE VIEW OF THE LD. CIT(A) ON ALL THE ISSUES, THIS CROSS OBJECTION OF THE ASSESSEE BECOMES INFRUCTUOUS AND THUS IT IS DISMISSED AS SUCH. 11. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLOWED IN PART AND THE CROSS OBJECTION OF THE ASSESSEE IS DISMISSED. KOLKATA, THE 19 TH AUGUST, 2020. SD/- SD/- [S.S. GODARA] [J. SUDHAKAR REDDY] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 19.08.2020 BIDHAN COPY OF THE ORDER FORWARDED TO: 1. DCIT, CIRCLE-36, KOLKATA. 2. SHRI RIKHAB CHAND JAIN, C/O M/S. T.T. INDUSTRIES, 10, POLLOCK STREET, 2 ND FLOOR, KOLKATA-700 001. 3. CIT(A)-10, KOLKATA. (SENT THROUGH MAIL) 4. CIT- 5. CIT(DR), KOLKATA BENCHES, KOLKATA. (SENT THROUGH MAIL) TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES