ACIT, CHENNAI V. R.S.Suriya, CHENNAI

ITA 1198/CHNY/2013

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 68650 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-08-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 20-08-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 31-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M SRINIVASA RAO
• Assessee Lawyers: JHARNA B HARILAL
• Keywords: Rectification of order; Additional evidence
• Section: 40A(3); 80C; 80G; 12; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI BEFORE SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER AND SHRI V. DURGA RAO, JUDICIAL MEMBER I.T.A. NOS. 1197 & 1198/MDS/2013 (ASSESSMENT YEARS : 2007-08 & 2008-09) & C.O. NOS. 141 & 142/MDS/2013 (IN I.T.A. NOS. 1197 & 1198/MDS/2013) THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE II(5), CHENNAI - 600 034. (APPELLANT) V. SHRI R.S. SURIYA, NO.7, KRISHNA STREET, T. NAGAR, CHENNAI - 600 017. PAN : ALRPS 0353 G (RESPONDENT & CROSS OBJECTOR) I.T.A. NOS. 1239 & 1240/MDS/2013 (ASSESSMENT YEARS : 2007-08 & 2008-09) SHRI R.S. SURIYA, NO.7, KRISHNA STREET, T. NAGAR, CHENNAI - 600 017. (APPELLANT) V. THE ASSISTANT COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE II(5), CHENNAI - 600 034. (RESPONDENT) REVENUE BY : SH. M. SRINIVASA RAO, CIT ASSESSEE BY : MS. JHARNA B. HARILAL, CA DATE OF HEARING : 20.08.2013 DATE OF PRONOUNCEMENT : 23.08.2013 O R D E R PER ABRAHAM P. GEORGE, ACCOUNTANT MEMBER : THESE ARE APPEALS OF THE REVENUE AND CROSS APPEAL S AND CROSS-OBJECTIONS OF THE ASSESSEE FOR THE RESPECTIVE ASSESSMENT YEARS. I.T.A. NOS. 1197 & 1198/MDS/13 I.T.A. NOS. 1239 & 1240/MDS/13 C.O. NOS. 141 & 142/MDS/13 2 2. CROSS-OBJECTIONS FILED BY THE ASSESSEE ARE DELAY ED BY 26 DAYS. CONDONATION PETITION HAS BEEN FILED. REASONABLE GR OUNDS HAVE BEEN SHOWN FOR THE DELAY. LEARNED D.R. DID NOT OBJECT. DELAY IS CONDONED AND CROSS-OBJECTIONS ARE ADMITTED. 3. APPEALS AND CROSS-OBJECTION FOR ASSESSMENT YEAR 2007-08 ARE FIRST TAKEN UP FOR DISPOSAL. 4. REVENUE IN ITS APPEAL IS AGGRIEVED THAT THE CIT( APPEALS) ALLOWED A RELIEF OF ` 25 LAKHS AGAINST EXPENSES OF ` 1,24,93,211/- DISALLOWED BY THE ASSESSING OFFICER. AS AGAINST TH IS, ASSESSEE IN ITS CROSS APPEAL IS AGGRIEVED ON THE CONFIRMATION OF AD DITIONS OF ` 25 LAKHS SHOWN BY THE ASSESSEE AS ADVANCE RECEIVED FRO M M/S RAJAKALIAMMAN MOVIES AND ` 50 LAKHS SHOWN BY THE ASSESSEE AS RECEIVED FROM M/S PHOTON FACTORY, CONSIDERED BY THE A.O. AS INCOME. THERE ARE FIVE OTHER GROUNDS IN THE CROSS APPEAL OF THE ASSESSEE, WHICH WILL BE DEALT WITH LATER. 5. FACTS APROPOS ARE THAT ASSESSEE, A FILM ACTOR, H AD FILED HIS RETURN FOR THE IMPUGNED ASSESSMENT YEAR DECLARING A N INCOME OF ` 5,21,64,811/-. ASSESSEE HAD, DURING THE RELEVANT P REVIOUS YEAR, RECEIVED A SUM OF ` 25 LAKHS FROM M/S RAJAKALIAMMAN MOVIES FOR I.T.A. NOS. 1197 & 1198/MDS/13 I.T.A. NOS. 1239 & 1240/MDS/13 C.O. NOS. 141 & 142/MDS/13 3 ACTING IN THE FILM VEL, WHICH WAS SHOWN AS ADVANC E BY HIM. HE HAD ALSO RECEIVED A SUM OF ` 50 LAKHS FROM M/S PHOTON FACTORY FOR ACTING IN A FILM VAARANAM AAYIRAM, WHICH WAS ALSO SHOWN AS AN ADVANCE. APART FROM THESE, A SUM OF ` 50 LAKHS RECEIVED FROM M/S SRI KANAKARATHNA MOVIES WAS ALSO SHOWN AS ADVANCE. ASS ESSING OFFICER WAS OF THE OPINION THAT ALL THESE AMOUNTS W ERE RECEIVED BY THE ASSESSEE, IN THE RELEVANT PREVIOUS YEAR AS A PART O F HIS PROFESSIONAL INCOME. IN THE CIRCUMSTANCES OF THE INDUSTRY IN WH ICH ASSESSEE WAS WORKING AND CONSIDERING THE CASH SYSTEM FOLLOWED BY THE ASSESSEE, EVERY RUPEE RECEIVED WAS TO BE CONSIDERED AS INCOME , IRRESPECTIVE OF THE CONDITION WHETHER SERVICES WERE RENDERED OR NOT . HE MADE AN ADDITION OF THESE AMOUNTS. 6. ASSESSING OFFICER ALSO MADE AN ANALYSIS OF THE P ROFESSIONAL EXPENDITURE CLAIMED BY THE ASSESSEE, WHICH WERE SET OFF AGAINST HIS GROSS RECEIPTS. AS PER THE A.O., ASSESSEE HAD INCUR RED EXPENDITURE IN CASH IN EXCESS OF ` 20,000/-, TOTALLING TO ` 24,65,149/-. FURTHER, AS PER THE A.O., ASSESSEE HAD PAID AGENCY FEES AND AUD IT FEES TOTALLING TO ` 11,27,100/- WITHOUT DEDUCTING TAX AT SOURCE. BASE D ON THE RECORDS PRODUCED AND FOUND AT THE TIME OF SEARCH, A SSESSING OFFICER ALSO CAME TO A CONCLUSION THAT ASSESSEE WAS NOT HAV ING EVIDENCE FOR I.T.A. NOS. 1197 & 1198/MDS/13 I.T.A. NOS. 1239 & 1240/MDS/13 C.O. NOS. 141 & 142/MDS/13 4 EXPENDITURE TO THE TUNE OF ` 89,00,962/- CLAIMED. THUS, AGAINST A TOTAL PROFESSIONAL EXPENDITURE OF ` 2,42,44,718/- CLAIMED BY THE ASSESSEE, ASSESSING OFFICER MADE A DISALLOWANCE OF ` 1,24,93,211/-. THE DISALLOWANCE COMPRISED OF ` 24,65,149/- UNDER SECTION 40A(3) OF INCOME-TAX ACT, 1961 (IN SHORT 'THE ACT'), ` 11,27,100/- UNDER SECTION 40(A)(IA) OF THE ACT AND ` 89,00,962/- FOR WANT OF EVIDENCE. 7. ASSAILING THE ABOVE, ASSESSEE MOVED IN APPEAL BE FORE CIT(APPEALS). INSOFAR AS ADDITIONS MADE FOR ADVANC ES RECEIVED WERE CONCERNED, ARGUMENT OF THE ASSESSEE WAS THAT SUCH S UMS WERE OFFERED AS INCOME IN SUBSEQUENT YEARS WHEN SERVICES WERE RENDERED, EXCEPT FOR THE ADVANCE OF ` 50 LAKHS RECEIVED FROM M/S SRI KANAKARATHNA MOVIES, WHICH WAS SUBSEQUENTLY RETURNE D IN FINANCIAL YEAR 2011-12. 8. INSOFAR AS DISALLOWANCE OF EXPENSES WAS CONCERNE D, ARGUMENT OF THE ASSESSEE WAS THAT GENUINE HARDSHIP WAS FACED BY HIM IN KEEPING PERFECT RECORDS DUE TO THE VERY NATURE OF H IS PROFESSION. ASSESSEE REQUESTED A LENIENT VIEW TO BE TAKEN CONSI DERING THE NATURE OF EXPENSES GENERALLY INCURRED BY A FILM ACTOR. AS SAILING THE DISALLOWANCE MADE FOR WANT OF DEDUCTION OF TAX AT S OURCE, ASSESSEE RELIED ON THE DECISION OF SPECIAL BENCH IN THE CASE OF MERILYN I.T.A. NOS. 1197 & 1198/MDS/13 I.T.A. NOS. 1239 & 1240/MDS/13 C.O. NOS. 141 & 142/MDS/13 5 SHIPPING AND TRANSPORT V. ACIT (2012) 16 ITR (TRIB. ) 1 (SB) AND SUBMITTED THAT DISALLOWANCE OF AMOUNTS PAID DURING THE RELEVANT PREVIOUS YEAR COULD NOT BE DONE. AS PER ASSESSEE, AUDIT FEES AND AGENCY FEES WERE PAID DURING THE RELEVANT PREVIOUS YEAR. 9. LD. CIT(APPEALS) DID NOT ACCEPT THE CONTENTION O F THE ASSESSEE INSOFAR AS IT RELATED TO DISALLOWANCE MADE UNDER SE CTION 40A(3) AND 40(A)(IA) OF THE ACT. ACCORDING TO HIM, THE DECISI ON OF SPECIAL BENCH OF THIS TRIBUNAL IN THE CASE OF MERILYN SHIPPING AN D TRANSPORT (SUPRA), STOOD SUSPENDED BY HONBLE ANDHRA PRADESH HIGH COUR T IN MISCELLANEOUS PETITION NO.908 OF 2012 DATED 8.10.20 12. AS FOR DISALLOWANCE UNDER SECTION 40A(3) OF THE ACT, CIT(A PPEALS) WAS OF THE OPINION THAT EXCEPT FOR MENTIONING GENUINE HARD SHIP, ASSESSEE COULD NOT SHOW WHICH CLAUSE OF RULE 6DD OF INCOME-T AX RULES, 1962 WOULD SAVE HIM. HOWEVER, INSOFAR AS DISALLOWANCE F OR WANT OF EVIDENCE WAS CONCERNED, LD. CIT(APPEALS) WAS OF THE OPINION THAT A FURTHER ALLOWANCE OF ` 25 LAKHS COULD BE GIVEN, CONSIDERING THE NATURE OF HIS PROFESSION. IN OTHER WORDS, HE SUSTAINED TH E DISALLOWANCE OF ` 24,65,149/- AND ` 11,27,100/- MADE UNDER SECTION 40A(3) AND 40(A)(IA) OF THE ACT, RESPECTIVELY, WHEREAS, HE SCA LED DOWN THE I.T.A. NOS. 1197 & 1198/MDS/13 I.T.A. NOS. 1239 & 1240/MDS/13 C.O. NOS. 141 & 142/MDS/13 6 DISALLOWANCE OF ` 89,00,962/- MADE BY THE A.O. FOR WANT OF EVIDENCE, BY A SUM OF ` 25 LAKHS. 10. NOW BEFORE US, GRIEVANCE OF THE REVENUE IS THAT THE RELIEF OF ` 25 LAKHS GIVEN BY THE CIT(APPEALS) WAS WITHOUT ANY BASIS. AS PER SHRI M. SRINIVASA RAO, REPRESENTING THE REVENUE, AS SESSING OFFICER HAD ALLOWED A REASONABLE EXPENDITURE CONSIDERING TH E NATURE AND PROFESSION OF THE ASSESSEE. EXPENSES FOR MAKEUP, C ONSTUME, WIG, DANCE AND FIGHT MASTERS, CLAIMED BY THE ASSESSEE WE RE GENERALLY BORNE BY THE PRODUCERS OF THE FILM AND ASSESSEE COU LD NOT PRODUCE ANY EVIDENCE THAT ANY SUCH EXPENDITURE WAS INCURRED BY HIM. 11. PER CONTRA, MS. JHARNA B. HARILAL, LEARNED COUN SEL FOR THE ASSESSEE SUBMITTED THAT THE TOTAL EXPENDITURE CLAIM ED BY THE ASSESSEE THROUGH ITS PROFIT & LOSS ACCOUNT WAS ` 2,42,44,718/-. EVEN AFTER THE RELIEF OF ` 25 LAKHS GIVEN BY THE CIT(APPEALS), THE DISALLOWED EXPENDITURE STOOD AT ` 99,93,211/-. THIS CAME TO 41.22% OF THE TOTAL EXPENDITURE CLAIMED. THE ADMITTED INC OME OF THE ASSESSEE WAS 5,21,64,811/- AND THIS ACCORDING TO HE R, SHOWED THAT ASSESSEE WAS FAIRLY ADMITTING HIS CORRECT INCOME. THE CIT(APPEALS) WAS THEREFORE, ACCORDING TO HER, WELL JUSTIFIED IN GIVING RELIEF OF ` 25 LAKHS TO THE ASSESSEE. I.T.A. NOS. 1197 & 1198/MDS/13 I.T.A. NOS. 1239 & 1240/MDS/13 C.O. NOS. 141 & 142/MDS/13 7 12. IN SUPPORT OF THE CROSS APPEAL, MS. JHARNA B. H ARILAL SUBMITTED THAT ADVANCES OF ` 25 LAKHS AND ` 50 LAKHS RECEIVED FROM M/S RAJAKALIAMMAN MOVIES AND M/S PHOTON FACTORY RESPECT IVELY, WERE OFFERED TO TAX IN SUBSEQUENT ASSESSMENT YEARS, NAME LY, 2008-09 AND 2009-10 RESPECTIVELY, BASED ON THE METHOD OF ACCOUN TING FOLLOWED. ACCORDING TO HER, THIS TRIBUNAL IN ASSESSEE'S OWN C ASE FOR ASSESSMENT YEAR 2006-07, HAD HELD THAT ADVANCES REC EIVED COULD NOT BE RECOGNIZED AS INCOME TILL CORRESPONDING SERVICES WERE RENDERED. RELYING ON PARA 7 OF ORDER DATED 19 TH JANUARY, 2010 IN I.T.A. NO. 1329/MDS/2009, SHE SUBMITTED THAT THERE WAS NO CLEA R CRYSTALLIZATION OF FILM OR STORYLINE AND THEREFORE, IT WOULD NOT BE PROPER TO TREAT THE PROFESSIONAL ADVANCE RECEIVED AS INCOME, TILL THE P ROPOSED ASSIGNMENT HAD ACTUALLY MATERIALIZED. ACCORDING TO HER, WHEN THE ASSESSEE HAD ACTED IN THE FILMS SUBSEQUENTLY, HE HA D OFFERED IT AS INCOME. 13. IN REPLY, SHRI M. SRINIVASA RAO SUBMITTED THAT ASSESSEE HAD BEFORE THE CIT(APPEALS) SUO MOTU OFFERED THE SAID SUMS AS INCOME OF THE IMPUGNED ASSESSMENT YEAR. HAVING OFFERED THE S AME AS INCOME, ASSESSEE COULD NOT NOW TURN BACK AND RELY ON A DECI SION OF THE TRIBUNAL FOR GETTING RELIEF. I.T.A. NOS. 1197 & 1198/MDS/13 I.T.A. NOS. 1239 & 1240/MDS/13 C.O. NOS. 141 & 142/MDS/13 8 14. WE HAVE PERUSED THE ORDERS AND HEARD THE RIVAL SUBMISSIONS. FIRST WE TAKE UP THE ISSUE REGARDING EXPENDITURE DI SALLOWANCE ON WHICH RELIEF OF ` 25 LAKHS WAS GIVEN BY THE CIT(APPEALS). TOTAL EXPENDITURE CLAIMED BY THE ASSESSEE CAME TO ` 2,42,44,718/-. DISALLOWANCE MADE BY THE A.O. WAS ` 24,65,149/- UNDER SECTION 40A(3) AND ` 11,27,100/- UNDER SECTION 40(A)(IA) OF THE ACT, AN D ` 89,00,962/- FOR WANT OF EVIDENCE. REVENUE IS AGGRI EVED ON A FURTHER SUM OF ` 25 LAKHS, OUT OF ` 89,00,962/-, BEING ALLOWED BY THE CIT(APPEALS). ASSESSEE IS NOT IN APPEAL AGAINST TH E DISALLOWANCE AT ALL. TOTAL DISALLOWANCE MADE BY THE ASSESSING OFFI CER WORKED OUT AS A PERCENTAGE OF EXPENDITURE DEBITED COMES TO 51.53% , INCLUDING THE DISALLOWANCE MADE UNDER SECTION 40A(3) AND DISALLOW ANCE MADE UNDER SECTION 40(A)(IA) OF THE ACT. CIT(APPEALS) H AD GIVEN RELIEF TO THE ASSESSEE ONLY ON THE DISALLOWANCE OF ` 89,00,962/-, MADE FOR WANT OF EVIDENCE. THE TYPE OF EXPENDITURES COMING WITHIN ` 89,00,962/- WERE BUSINESS PROMOTION, COSTUME & MAKE UP, INTEREST ON LOAN, LEGAL FEES, MAKEUP AND WIG MATERIAL AND TRAVE LLING EXPENDITURE. TOTAL TRAVELLING EXPENDITURE CLAIMED BY THE ASSESSE E CAME TO ` 35,16,130/-, OUT OF WHICH, ` 12,68,280/- WAS DISALLOWED FOR WANT OF EVIDENCE AND ` 17,80,000/- WAS DISALLOWED UNDER SECTION 40A(3) OF I.T.A. NOS. 1197 & 1198/MDS/13 I.T.A. NOS. 1239 & 1240/MDS/13 C.O. NOS. 141 & 142/MDS/13 9 THE ACT. IN OTHER WORDS, SUBSTANTIAL PORTION OF CL AIM STOOD DISALLOWED. SIMILARLY, FOR MAKEUP AND WIG MATERIAL, THE TOTAL C LAIM WAS ` 21,80,614/-, OUT OF WHICH, ` 86,000/- WAS DISALLOWED UNDER SECTION 40A(3) AND ` 20,83,418/- WAS DISALLOWED FOR WANT OF EVIDENCE. INTEREST CLAIMED ON LOANS, EXCEPT FOR CAR LOAN, WER E FULLY DISALLOWED. BEING A PROFESSIONAL ACTOR, THERE IS SUBSTANTIAL ME RIT IN THE CLAIM OF THE ASSESSEE THAT TRAVELLING EXPENDITURE, WIG AND M AKEUP EXPENDITURE WOULD HAVE BEEN INCURRED BY HIM FOR KEE PING UP THE PROFILE REQUIRED OF AN ACTOR. TO PRESUME THAT ALL THE MAKEUP AND TRAVELLING EXPENDITURE OF AN ACTOR WOULD BE MET BY THE PRODUCERS, WOULD BE OFF THE MARK. ALMOST ALL THE PROFESSIONAL ACTORS ARE HAVING THEIR OWN PERSONAL MAKEUP TECHNICIANS IN THEIR SUPP ORT STAFF AND ALSO A DEDICATED SUPPORT STAFF FOR GROOMING. CONSIDERIN G THESE ASPECTS, WE ARE OF THE OPINION THAT THE CIT(APPEALS) WAS JUS TIFIED IN GIVING A RELIEF OF ` 25 LAKHS ON THE DISALLOWANCE OF ` 89,00,962/- MADE BY THE ASSESSING OFFICER. WE DO NOT FIND ANY REASON TO IN TERFERE WITH THE RELIEF GIVEN BY THE CIT(APPEALS). 15. COMING TO THE ADDITION FOR ADVANCES RECEIVED, O N WHICH ASSESSEE IS AGGRIEVED, WE FIND FROM THE ORDER OF TH E CIT(APPEALS) THAT ASSESSEE HAD HIMSELF ADMITTED SUCH AMOUNTS AS A PART OF HIS I.T.A. NOS. 1197 & 1198/MDS/13 I.T.A. NOS. 1239 & 1240/MDS/13 C.O. NOS. 141 & 142/MDS/13 10 INCOME OF THE IMPUGNED ASSESSMENT YEAR, IN THE APPE AL PROCEEDINGS BEFORE LD. CIT(APPEALS). LD. CIT(APPEALS) HAS REPR ODUCED THE SUBMISSIONS OF THE AUTHORIZED REPRESENTATIVE AT PAG E 4 OF HIS ORDER. THE AMOUNT OF ` 25 LAKHS RECEIVED FROM M/S RAJAKALIAMMAN MOVIES AND ` 50 LAKHS RECEIVED FROM PHOTON FACTORY WERE OFFERED BY THE ASSESSEE AS INCOME FOR THE IMPUGNED ASSESSMENT YEAR IN THE COURSE OF PROCEEDING BEFORE CIT(APPEALS). HAVING ACCEPTED IT AS A PART OF INCOME, WE ARE OF THE OPINION THAT ASSESSEE CANNOT NOW TURN BACK AND PLACE RELIANCE ON AN ORDER OF THE TRIBUNAL FOR EARLIER YEAR, FOR GETTING RELIEF. NO DOUBT, FOR ASSESSMENT YEAR 2006 -07, THIS TRIBUNAL IN ITS ORDER DATED 19 TH JANUARY, 2010 HELD THAT PROFESSIONAL ADVANCE RECEIVED COULD BE TREATED AS INCOME ONLY WHEN PROPO SED ASSIGNMENT HAD MATERIALIZED. BUT IN THE SAID YEAR, THERE WAS NO CLEAR CRYSTALLIZATION OF FILM OR STORYLINE OR OTHER ASPEC TS OF THE PROPOSED FILM AND THERE WAS NO SUBSISTING CONTRACT FOR ACTING IN A PARTICULAR FILM. HOWEVER, FOR THE IMPUGNED ASSESSMENT YEAR, THE MOVI ES ARE CLEARLY MENTIONED AS FILM VEL AND FILM VAARANAM AAYIRAM . THEREFORE, ASSESSEE CANNOT SAY THAT STORYLINES WERE NOT CRYSTA LIZED OR CONTRACTS WERE NOT SUBSISTING. LD. CIT(APPEALS) DID GIVE REL IEF TO THE ASSESSEE ON THE ADVANCE OF ` 50 LAKHS RECEIVED FROM M/S SRI KANAKARATHNA MOVIES FOR THE REASON THAT THE MOVIE WAS UNTITLED A ND THE ADVANCE I.T.A. NOS. 1197 & 1198/MDS/13 I.T.A. NOS. 1239 & 1240/MDS/13 C.O. NOS. 141 & 142/MDS/13 11 WAS LATER RETURNED BY THE ASSESSEE. IN OTHER WORDS , HE HAD FAIRLY FOLLOWED THE REASONING GIVEN BY THIS TRIBUNAL IN IT S ORDER FOR ASSESSMENT YEAR 2006-07. IN THE CIRCUMSTANCES, WE DO NOT FIND ANY REASON TO INTERFERE WITH THE ORDER OF CIT(APPEALS) IN CONFIRMING THE ADDITION OF ` 75 LAKHS. 16. APART FROM THE GROUNDS RELATING TO CONFIRMATION OF ADVANCES AS INCOME, ASSESSEE HAS RAISED THREE OTHER EFFECTIVE G ROUNDS IN HIS APPEAL, NUMBERED AS GROUNDS 2 AND 5 TO 7. LD. COUN SEL FOR THE ASSESSEE MS. JHARNA B. HARILAL STATED THAT SHE WAS NOT PRESSING GROUND NO.2. IN HIS GROUND NO.5, GRIEVANCE RAISED BY THE ASSESSEE IS THAT A CLAIM OF DEDUCTION UNDER SECTION 80G OF ` 4,08,200/- WAS NOT ALLOWED TO IT. IT IS ALSO MENTIONED THAT CIT(APPEA LS) HAD ENHANCED THE DEDUCTION OF ` 1 LAKH ALLOWED BY THE ASSESSING OFFICER, CLAIMED BY THE ASSESSEE UNDER SECTION 80C OF THE ACT. 17. INSOFAR AS CLAIM UNDER SECTION 80G IS CONCERNED , ADMITTEDLY, ASSESSEE COULD NOT PRODUCE ANY EVIDENCE BEFORE THE LOWER AUTHORITIES IN SUPPORT OF SUCH CLAIM. THOUGH THE L EARNED A.R. MENTIONED THAT SHE WAS HAVING EVIDENCE IN SUPPORT N OW, NO PETITION HAS BEEN FILED FOR ADMITTING ADDITIONAL EVIDENCE. HENCE, WE DO NOT FIND ANY MERIT IN THIS PART OF THE GROUND RAISED BY THE ASSESSEE. THE I.T.A. NOS. 1197 & 1198/MDS/13 I.T.A. NOS. 1239 & 1240/MDS/13 C.O. NOS. 141 & 142/MDS/13 12 SECOND LIMB OF THIS GROUND COULD NOT BE EFFECTIVELY CANVASSED BY THE LD. COUNSEL FOR THE ASSESSEE, SINCE THE PART OF THE ORDER OF LD. CIT(APPEALS) ON WHICH SHE WAS AGGRIEVED COULD NOT B E BROUGHT OUT. 18. IN HIS GROUND NO.6, GRIEVANCE OF THE ASSESSEE I S THAT HIS GROSS RECEIPTS WERE TAKEN BY THE ASSESSING OFFICER AT ` 7,83,93,048/- AGAINST ` 6,08,93,502/- RETURNED BY THE ASSESSEE. 19. WE FIND THAT NO SUCH GROUND WAS TAKEN BY THE AS SESSEE BEFORE CIT(APPEALS). EVEN OTHERWISE, IF IT IS A SHEER MIS TAKE OF AMOUNT, ASSESSEE COULD MOVE UNDER SECTION 154 OF THE ACT BE FORE ASSESSING OFFICER FOR GETTING ADEQUATE RELIEF. 20. VIDE HIS GROUND NO.7, GRIEVANCE OF THE ASSESSEE IS THAT CREDIT FOR SELF ASSESSMENT TAX OF ` 1,90,00,000/- AND TDS CREDIT OF ` 65,891/- WERE NOT GIVEN BY THE ASSESSING OFFICER. 21. WE FIND FROM PARA 10 OF THE CIT(APPEALS) THAT A SSESSING OFFICER HAD PASSED NECESSARY RECTIFICATION ORDER UNDER SECT ION 154 OF THE ACT. 22. CROSS-OBJECTION OF THE ASSESSEE IS IN SUPPORT O F THE ORDER OF CIT(APPEALS) INSOFAR AS IT RELATES TO RELIEF GIVEN BY HIM. SINCE WE I.T.A. NOS. 1197 & 1198/MDS/13 I.T.A. NOS. 1239 & 1240/MDS/13 C.O. NOS. 141 & 142/MDS/13 13 HAVE DISMISSED THE APPEAL OF THE REVENUE, THE CROSS -OBJECTION HAS BECOME INFRUCTUOUS. 23. NOW WE TAKE UP APPEALS AND CROSS-OBJECTION FOR ASSESSMENT YEAR 2008-09. 24. REVENUE IN ITS APPEAL IS AGGRIEVED ON THE RELIE F OF ` 35 LAKHS GIVEN BY THE CIT(APPEALS) ON THE EXPENDITURE DISALL OWANCE MADE BY THE ASSESSING OFFICER. AS AGAINST THIS, ASSESSEE I N HIS APPEAL, THOUGH HE HAS RAISED SIX GROUNDS, IS PRESSING ONLY TWO GROUNDS, NAMELY, GROUND NOS.5 AND 6. VIDE HIS GROUND NO.5, ASSESSEE IS AGGRIEVED ON ENHANCEMENT OF TAXABLE INCOME BY THE C IT(APPEALS) AND VIDE HIS GROUND NO.6, ASSESSEE IS AGGRIEVED ON CREDIT BEING NOT GIVEN ON TAX OF ` 63,00,710/- DEDUCTED AT SOURCE. 25. AS FAR AS REVENUES APPEAL IS CONCERNED, THE FA CT SITUATION IS ALMOST SIMILAR TO THE PRECEDING ASSESSMENT YEAR. T HE TOTAL DISALLOWANCE MADE BY THE ASSESSING OFFICER, AGAINST EXPENDITURE OF ` 3,61,57,151/- CLAIMED BY THE ASSESSEE, CAME TO ` 2,83,63,924/-. OUT OF THE ABOVE AMOUNT, A SUM OF ` 59,59,101/- WAS SUO MOTU DISALLOWED BY THE ASSESSEE IN HIS COMPUTATION STATE MENT. THE BALANCE DISALLOWANCE COMPRISED OF SUM OF ` 1,60,99,940/- UNDER I.T.A. NOS. 1197 & 1198/MDS/13 I.T.A. NOS. 1239 & 1240/MDS/13 C.O. NOS. 141 & 142/MDS/13 14 SECTION 40A(3), ` 6,77,900/- UNDER SECTION 40(A)(IA) OF THE ACT AND ` 56,26,983/- FOR WANT OF EVIDENCE. CIT(APPEALS) HAD GIVEN A RELIEF OF ` 35 LAKHS ON THE DISALLOWANCE OF ` 56,26,983/-. BREAK-UP OF ` 56,26,983/- SHOWS THAT IT INCLUDED COSTUME DESIGN C HARGES OF ` 8,65,000/-, DIETITION CHARGES OF ` 6 LAKHS, BOARDING & LODGING EXPENSES OF ` 11,98,148/-, FAN CLUB EXPENSES OF ` 12,63,835/- AND PRESS MEETING EXPENDITURE OF ` 5 LAKHS. WHOLE OF THE CLAIM OF DIETITION CHARGES, COSTUME DESIGN CHARGES AND BOARD ING & LODGING CHARGES WERE DISALLOWED BY THE A.O. IN THE NATURE OF THE PROFESSION OF THE ASSESSEE, WE CANNOT SAY THAT THESE EXPENDITU RES WERE NOT RELEVANT AND NECESSARY FOR MAINTAINING HIS PROFILE. WE ARE THEREFORE OF THE OPINION THAT THE CIT(APPEALS) WAS JUSTIFIED IN GIVING A RELIEF OF ` 35 LAKHS CONSIDERING THE RELEVANT ASPECTS AND ALSO CIRCUMSTANCES OF THE CASE. WE DO NOT FIND ANY NEED TO INTERFERE WIT H THE ORDER OF CIT(APPEALS). 26. COMING TO THE APPEAL OF THE ASSESSEE, LD. COUNS EL FOR THE ASSESSEE MS. JHARNA B. HARILAL SUBMITTED THAT SHE W AS NOT PRESSING GROUNDS 2 AND 4. VIS--VIS GROUND NO.5, LEARNED CO UNSEL WAS UNABLE TO SHOW WHAT ENHANCEMENT CIT(APPEALS) HAD DONE IN T HE RELEVANT PREVIOUS YEAR TO BE AGGRIEVED. ONLY ENHANCEMENT DO NE BY THE I.T.A. NOS. 1197 & 1198/MDS/13 I.T.A. NOS. 1239 & 1240/MDS/13 C.O. NOS. 141 & 142/MDS/13 15 CIT(APPEALS) WAS OF A SUM OF ` 37,50,000/- RELATING TO ADVANCE RECEIVED BY THE ASSESSEE IN EARLIER YEARS, DELETED FROM HIS INCOME, PURSUANT TO ORDERS OF THIS TRIBUNAL, IN SUCH YEARS. THIS TRIBUNAL HAD GIVEN RELIEF IN EARLIER ASSESSMENT YEAR 2006-07, CO NSIDERING THAT ADVANCES RECEIVED COULD NOT BE TREATED AS INCOME SI NCE THE ASSIGNMENT HAD NOT MATERIALIZED AND STORYLINES WERE NOT CRYSTALIZED. THEREFORE, IN SUBSEQUENT YEARS, WHEN THE ASSIGNMENT HAD CRYSTALLIZED, ASSESSEE WAS BOUND TO SHOW SUCH ADVAN CE AS INCOME. ENHANCEMENT OF ` 37,50,000/- CONSIDERING THIS ASPECT, WAS THEREFORE RIGHTLY DONE BY THE CIT(APPEALS). 27. AS FOR GROUND NO.6, WHICH IS REGARDING THE CRED IT FOR TDS BEING NOT GIVEN, CIT(APPEALS) AT PARA 8 OF HIS ORDER, HAS DIRECTED THE ASSESSING OFFICER TO VERIFY THE CLAIM VIS--VIS THE CONDITION STIPULATED IN SECTION 199 OF THE ACT AND GIVE RELIEF TO THE AS SESSEE. WE DO NOT FIND ANY REASON TO INTERFERE WITH THIS VIEW TAKEN B Y THE CIT(APPEALS). 28. COMING TO THE CROSS-OBJECTION OF THE ASSESSEE, WE FIND THAT THE CROSS-OBJECTION IS IN SUPPORT OF THE ORDER OF CIT(A PPEALS) ON THE RELIEF GIVEN TO THE ASSESSEE ON DISALLOWANCE OF PROFESSION AL EXPENDITURE. SINCE WE HAVE ALREADY DISMISSED REVENUES APPEAL, S UCH CROSS- OBJECTION HAS BECOME INFRUCTUOUS. I.T.A. NOS. 1197 & 1198/MDS/13 I.T.A. NOS. 1239 & 1240/MDS/13 C.O. NOS. 141 & 142/MDS/13 16 29. TO SUMMARISE THE RESULT, ALL THE APPEALS FILED BY THE REVENUE AS WELL AS ASSESSEE AND CROSS-OBJECTIONS FILED BY T HE ASSESSEE ARE DISMISSED. ORDER WAS PRONOUNCED IN THE COURT ON FRIDAY, THE 23 RD OF AUGUST, 2013, AT CHENNAI. SD/- SD/- (V.DURGA RAO) (ABRAHAM P. GEORGE) JUDICIAL MEMBER ACCOUNTANT MEMBER CHENNAI, DATED THE 23 RD AUGUST, 2013. KRI. COPY TO: (1) ASSESSEE (2) ASSESSING OFFICER (3) CIT(A)- II, CHENNAI (4) CIT, CENTRAL-II, CHENNAI (5) D.R. (6) GUARD FILE