The Kangra Central Co-op Bank Ltd, V. Joint Commisioner of Income Tax,

ITA 1412/CHANDI/2016

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 2370 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 10 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2011-2012
• Appeal Filed On: 20-12-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHANDER KANTA SR DR
• Assessee Lawyers: AHWANI KUMARCA
• Keywords: Revised return
• Section: 43B

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH A CHANDIGARH !, ' # , $ % & ' ( , )* # BEFORE: SMT. DIVA SINGH, JM & SMT.ANNAPURNA GUPTA, AM ./ ITA NO. 1412/CHD/2016 / ASSESSMENT YEAR : 2011-12 THE KANGRA CENTRAL CO - OP BANK LTD., CIVIL LINES, DHARAMSHALA, DISTT.- KANGRA(HP). VS THE J CIT, PALAMPUR RANGE, PALAMPUR (HP). ./ PAN NO: AAAJT0749B / APPELLANT / RESPONDENT ! ' / ASSESSEE BY : SHRI AHWANI KUMAR,CA # ! ' / REVENUE BY : SMT. CHANDERKANTA, SR.DR $ % ! &/ DATE OF HEARING : 03.10.2018 '()* ! &/ D ATE OF PRONOUNCEMENT : 31.10.2018 )+/ ORDER PER DIVA SINGH THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE ASS AILING THE CORRECTNESS OF THE ORDER DATED 12.10.2016 OF CIT(A) PALAMP UR PERTAINING TO 2011-12 ASSESSMENT YEAR. 2. THE APPEAL HAD BEEN ARGUED BY THE PARTIES ON 09.01.2 018, HOWEVER, SUBSEQUENTLY IT WAS FIXED FOR CLARIFICATION AND FOR ONE REAS ON OR THE OTHER, HEARING COULD NOT CONCLUDE. ACCORDINGLY, THE PARTIES WERE DIRECTED TO RE- ARGUE THE APPEAL AFRESH ON THE NEXT DATE OF HEARING DUE TO LAPSE OF TIM E. 3. THE LD. AR INVITING ATTENTION TO GROUND RAISED IN THE PR ESENT APPEAL SUBMITTED THAT THE ASSESSEE IN THE FACTS OF THE PRESENT CASE, ADMITTEDLY ARGUED IN THE COURSE OF THE ASSESSMENT PROCEEDINGS FOR ALLOWANCE OF EXPENSES OF BONUS/PF OF RS. 1,76,13,207/- PAID ON 10.11.2010 . IT WAS HIS SUBMISSION THAT THE CLAIM WAS REJECTED BY THE AO REL YING UPON THE DECISION OF THE APEX COURT IN THE CASE OF GOETZ INDIA LTD . V CIT 284 ITR 323 (S.C). THE ISSUE WAS CARRIED IN APPEAL BEFORE THE CIT(A) W HO ALSO REJECTED THE CLAIM HOLDING THAT THE CLAIM HAD NOT BEEN MA DE BY WAY OF REVISED RETURN. THE LD. AR SUBMITTED THAT THE ASSESSEE HAD CLAIMED THE ITA 1412/CHD/2016 A.Y.2011-12 PAGE 2 OF 3 SAME IN 2010-11 ASSESSMENT YEAR AND SINCE IT HAD NOT B EEN PAID IN THE SAID YEAR, A DISALLOWANCE WAS MADE U/S 43B. IN THE CIRCUMSTANCES, IT WAS HIS LIMITED PRAYER THAT IT MAY BE ALLOWED IN THE YEAR UNDER CONSIDERATION. THE PARTIES HAD BEEN DIRECTED TO CLARIFY WHETHER THE FAC TUM OF PAYMENTS STOOD ACCEPTED BY THE DEPARTMENT OR NOT. 4. THE LD. SR.DR ON QUERY STATED THAT SHE RELIES UPON TH E ORDERS. IT WAS SPECIFICALLY PUT TO HER WHETHER THIS FACT WAS REQUIRED TO BE VERIFIED AS IT APPEARS THAT ON AN EARLIER DATE, SUCH AN OFFER HAD BEE N MADE BY THE ASSESSEE. THE LD. SR.DR ON GOING THROUGH THE RECORD SUB MITTED THAT VERIFICATION OF FACTUM OF PAYMENT MAY NOT BE REQUIRED AS IT WAS AN ACCEPTED FACT. THE DEPARTMENTAL CASE IS LIMITED TO THE ISS UE THAT THE CLAIM SHOULD HAVE BEEN MADE BY WAY OF REVISED RETURN WHICH WA S THE SPECIFIC REASON FOR DENYING THE CLAIM. 4.1 THE LD. AR IN SUPPORT OF THE ALLOWABILITY OF ASSESSEE'S PR AYER RELIED UPON DECISION OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF RAMCO INTERNATIONAL (2011)332 ITR 306(P&H). RELIANCE WAS ALSO PLAC ED UPON DECISION OF BOMBAY HIGH COURT IN THE CASE OF CIT V PRUTHV I BROKERS & SHAREHOLDERS (2012) 349 ITR 336 (BOMBAY). APART FROM THAT , RELIANCE WAS ALSO PLACED UPON ORDER OF JUDGEMENT OF THE HON'BLE SUPR EME COURT OF INDIA IN THE CASE OF COMMISSIONER OF INCOME-TAX VS. M AHALAKSHMI SUGAR MILLS CO. LTD. REPORTED AT [1986] 160 ITR; JUDGEMEN T OF THE HON'BLE HIGH COURT OF DELHI IN THE CASE OF COMMISSIONER OF INCOM E-TAX VS. SAM GLOBAL SECURITIES LTD. REPORTED AT [20141 360 ITR 682 (DEL HI) AND ORDER OF JUDGEMENT OF THE HON'BLE HIGH COURT OF DELHI IN THE CASE OF COMMISSIONER OF INCOME-TAX, DELHI-II VS. JAI PARABOLICS SPRINGS LTD. RE PORTED AT [2008] 306 ITR 42 (DELHI). 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. A PERUSAL OF THE ASSESSMENT ORDER PARA 5 S HOWS THAT THE FACTUM OF PAYMENT OF BONUS/PF IS NOT IN DISPUTE SO FAR AS THE REVENUE IS CONCERNED. FOR READY REFERENCE, WE EXTRACT THE RELEVANT PARA : 5. THE LD. AR OF THE ASSESSEE VIDE PARA 4 OF HIS L ETTER DATED 25.2.2014 HAS ASKED FOR ALLOWANCE OF THE BONUS/PF OF RS. 1,76,13,207/- PAID ON 10.11.2010 WHICH WAS DISALLOWED IN THE ASSESSMENT YEAR 2010-11. SINCE TH E ASSESSEE HAS NEITHER CLAIMED THE SAME IN THE INCOME TAX RETURN NOR IN THE REVISED RE TURN, THERE IS NO PROVISION UNDER THE I.T.ACT. TO MAKE AMENDMENT IN THE RETURN OF INCOME BY MODIFYING AN APPLICATION AT THE ASSESSMENT STAGE WITHOUT REVISING THE RETURN, THE R ELIANCE IS PLACED ON THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF GOETZ (IND IA) LTD. VS CIT REPORTED AT 284 ITR 323(SC). HENCE THE PLEA OF THE ASSESSEE IS REJE CTED. ITA 1412/CHD/2016 A.Y.2011-12 PAGE 3 OF 3 6. A PERUSAL OF THE IMPUGNED ORDER SHOWS THAT THE A DDITION HAS BEEN UPHELD BY THE CIT(A) ON THE FOLLOWING REASONING : IN VIEW OF THE ABOVE MENTIONED FACTS, IT IS OBSERV ED THAT ORDER FOR A,Y. 2010-11 WAS PASSED BY THE LD. A.O, ON 05.03,2013 AND APPELLANT SHOULD HAVE REVISED ITS RETURN OF INCOME BY 31.03.2013 IN RESPECT OF ALLOWANCE OF BON US OF RS, 1,76,13,207/- PAID ON 10.11.2010 WHICH WAS DISALLOWED IN A.Y. 2010-11. SI NCE, THE RETURN OF INCOME WAS NOT REVISED BY THE APPELLANT THE LD. A.O. HAS RIGHTLY R EJECTED THE PLEA OF THE APPELLANT AND BONUS PAID ON 10.11,2010 WAS NOT ALLOWED IN THE A. Y. 201,1-12, THEREFORE DISALLOWANCE OF RS. 1,76,13,207 /- U/S 43B OF THE IT. ACT BY THE LD. A.O. IS UPHELD. 7. THUS, THE FACTUM OF INCURRING THE SAID EXPENDITURE IS NO T IN DISPUTE. THE FACT THAT IT WAS CLAIMED IN THE EARLIER YEAR IS A FACT ON RECORD. THE FACT THAT WITHIN THE SAID FINANCIAL YEAR, IT WAS NOT ALLOWED IS ALSO A FACT ON RECORD. THE FACT REMAINS THAT THE SAID EXPENDITURE HAS BEEN INCURRED WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF BUSINESS PURPOS E OF THE ASSESSEE IS ALSO NOT IN DISPUTE. WE FIND ON CONSIDERING THE JUDICIAL PR ECEDENT AS ADDRESSED BY THE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS REMCO INTERNATIONAL 332 ITR 306 APART FROM THE DECISIONS OF THE BOMBAY HIGH COURT IN THE CASE OF PRUTHVI BROKERS & SHAREHOLDERS 349 ITR 336 AND DELHI HIGH COURT IN THE CASE OF CIT VS SAM GLOBAL SECURITIES LTD. 360 ITR 682. WE SEE NO GOOD REASON ON THE BASIS OF WHICH ADDITIO N CAN BE SUSTAINED. THE LD. AR IN SUPPORT OF THE ALLOWABILITY OF THE A SSESSEE'S CLAIM HAS SUBMITTED THAT NO DOUBT, TIME WAS AVAILABLE FOR FILING A R EVISED RETURN, HOWEVER, INADVERTENTLY DUE TO OVERSIGHT OR IGNORANCE, OF THE TAX ADVISORS ETC. THE REVISED RETURN HAS NOT BEEN FILED. THUS, CONSIDERING THE PR ECEDENT RELIED UPON, WHERE THE SAID EXPENDITURE IN 2010-11 ASSESSMENT YEAR, ADMITTEDLY HAS NOT BEEN ALLOWED, WE DIRECT THE AO TO GIV E RELIEF TO THE ASSESSEE TO THE EXTENT PF/BONUS PAID IN THE YEAR UNDE R CONSIDERATION. ACCORDINGLY, GROUND RAISED BY THE ASSESSEE IS ALLOWED. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 31.10. 2018. SD/- SD/- ( $ % & ' ( ) ( ! ) (ANNAPURNA GUPTA) (DIVA S INGH) )* #/ ACCOUNTANT MEMBER ' #/ JUDICIAL MEMBER % $ (+ ! ,- .- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT - 2. / THE RESPONDENT - 3. $ / / CIT 4. $ / ( )/ THE CIT(A) 5. -01 2 , & 2 , 34516 / DR, ITAT, CHANDIGARH 6. 15 7% / GUARD FILE (+ $ / BY ORDER, 8 # / ASSISTANT REGISTRAR