Raj Kishore Prasad, Ahmedabad V. ITO, Ward-3, Valsad

ITA 1689/AHD/2017

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 8368 (ITAT-SURAT)
• Duration Of Justice: 2 year(s) 2 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-10-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2012-2013
• Appeal Filed On: 07-07-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Additional evidence; Wrong claim; TDS
• Section: 234B; 201; 143(2); 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SURAT BENCH, SURAT BEFORE SHRI AMARJIT SINGH, JM AND SHRI O. P. MEENA , AM / I .T.A. NO. 1689 /AHD /20 1 7 ( / ASSESSMENT YEAR: 2012 - 13 ) RAJ KISHORE PRASAD F - 8, AYODHYANAGAR SOC., OPP. SAHJIVAN SOC., SHANTINAGAR, USMANPURA, AHMEDABAD - 380013. / VS. ITO, WARD - 3 VALSAD. ./ ./ PAN/GIR NO. : AITPP0535A ( / APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING : 01/ 10 / 201 9 / DATE OF PRONOUNCEMENT : 04 /10/ 2019 / O R D E R PER AMARJIT SINGH, J M: THE ASSESSEE HAS F ILED THE PRESENT APPEAL AGAINST THE ORDER DATED 15 . 0 2 .201 7 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - , VALSAD [HEREINAFTE R REFERRED TO AS THE CIT(A)] RELEVANT TO THE A.Y. 2012 - 13 . 2 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: - 1 ON THE FAC TS AND IN CIRCUMSTANCES OF THE CASE AND IN LAW, LD. ASSESSING OFFICER HAS ERRED IN ADDING LEAVE TRAVEL CONCESSION OF RS.2,10,518/ - BY NOT ALLOWING EXEMPTION UNDER SECTION 10(5) OF THE ACT. 2. ON FACTS AND IN CIRCUMSTANCES OF THE CASE AND IN LAW, LD. ASSESS ING OFFICER HAS ALSO ERRED IN NOT ALLOWING THE TDS CREDIT DEPOSITED ASSESSEE BY : SHRI DIVYANG SHAH REVEN UE BY: SHRI MAYANK PANDEY (DR) ITA. NO .1689 /AHD /201 7 A.Y. 2012 - 13 2 BY EMPLOYER - STATE BANK OF INDIA ON PAYMENT OF LEAVE TRAVEL CONCESSION OF RS.2,10,518/ - WHICH IS SUBJECT MATTER OF ADDITION IN THE HANDS OF APPELLANT - EMPLOYEE AS WELL AS IN THE HANDS OF EMP LOYER BANK - STATE BANK OF INDIA. 3. FURTHER A PPELLANT CRAVES LEAVE TO ADD, ALTER OR WITHDRAW ALL OR ANY GROUNDS OF APPEAL . ' 3 . THE ASSESSEE HAS RAISED THE FOLLOWING ADDITIONAL GROUNDS: - 1. WHETHER ON FACTS AND IN CIRCUMSTANCES OF THE CASE AND IN LAW, LD. AO HAS ERRED IN LEVYING INTEREST U/S 234B & 234C OF THE ACT. WE CRAVE TO ADMIT THE ABOVE ADDITIONAL GROUND OF APPEAL AND ALLOW US TO BE HEARD ON THE SAME. IN THIS REGARDS, WE WOULD LIKE TO MENTION THAT RELEVANT DOCUMENTS IN THIS REGARDS IS ALREADY AVAILAB LE ON RECORD AND NO ADDITIONAL EVIDENCE IS REQUIRED TO BE ADMITTED. 4. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED HIS RETURN OF INCOME ON 13 . 0 6 .20 12 DECLARING TOTAL I NCO ME TO THE TUNE OF RS.9,29,500 / - . THEREAFTER, AN INFORMATION WAS RECEIVED F ROM THE ITO(TDS), VALSAD REGARDING WRONG CLAIM OF LEAVE TRAVEL ALLOWANCE ON THE PART OF THE ASSESSEE , THE CASE OF THE ASSESSEE WAS REOPENED U/S 147 OF THE I.T. ACT AND NOTICE U/S 148 OF THE ACT WAS ISSUED ON 30.03.2015. THEREAFTER, NOTICES U/S 143(2) & 142 (1) OF THE ACT WERE ISSUED AND SERVED UPON THE ASSESSEE. THE ASSESSEE WAS AN EMPLOYEE OF STATE BANK OF INDIA AT THE RELEVANT POINT OF TIME. THE ITO(TDS), VALSAD NOTICE D THAT THE ASSESSEE WAS REIMBURSED TRAVELLING EXPENSES OF RS.2,68,400/ - UNDERTAKEN THE JO URNEY UNDER LFC/LTC. IT WAS FOUND THAT THE ASSESSEE HAS PERFORMED LEAVE TRAVEL AS CIRCULAR ROUTE VIA FOREIGN COUNTRIES. THE DETAILS WERE CALLED FROM THE SBI, VALSAD FROM WHERE IT REVEALED THAT THE ASSESSEE HAD TRAVELLED TO SINGAPORE, ITA. NO .1689 /AHD /201 7 A.Y. 2012 - 13 3 MALAYSIA, BANGKOK, KOL KATTA, DIBRUGARH, DELHI & MUMBAI DURING THE PERIOD FROM 02.06.2011 TO 16.06.2011 AS PART OF LEAVE TRAVEL. ACCORDING TO THE PROVISIONS OF SECTIONS 10(5) OF THE I.T. ACT, THE LTC/LFC WAS EXEMPT ONLY IN RESPECT OF JOURNEY PERFORMED WITHIN INDIA. A SHOW - CAUSE NOTICE WAS ISSUED AND AFTER THE REPLY OF NOTICE, THE CLAIM OF THE ASSESSEE IN CONNECTION WITH THE TRA VELLING OUT OF INDIA WAS DECLINED AND ADDED TO THE INCOME OF THE ASSESSEE. F EELING AGGRIEVED, THE ASSESSEE FILED AN APPEAL BE FORE THE CIT(A) WHO DISMISSED THE APPEAL OF THE ASSESSE , THEREFORE, THE ASSESSEE HAS FILED THE PRESENT APPEAL BEFORE US. 5 . WE HAVE HEARD THE ARGUMENT ADVANCED BY THE LD. REPRESENTATIVE OF THE PARTIES AND PERUSED THE RECO R D. WE NOTICED THAT THE APPEAL HAS BEEN FILED 13 DAYS DELAY. THE ASSESSEE FILED AN AFFIDAVIT FOR THE CONDONATION DELAY IN WHICH THE ASSESSEE HAS TAKEN THE PLEA THAT THE ASSESSEE WAS POSTED AT MUSCAT BRANCH OF STATE BANK OF INDIA IN OMAN SINCE 08 TH MARCH, 2015, THEREFORE, FOR FILING THE APPEAL AND CONSULTING THE MATTER TOOK REASONABLE TIME, THEREFORE, THE DELAY IS LIABLE TO BE CONDONED. THE EXPLANATION GIVEN BY ASSESSEE SEEMS JUS TIFIABLE, THEREFORE, WE CONDONE THE DELAY. ISSUE NO. 1 ITA. NO .1689 /AHD /201 7 A.Y. 2012 - 13 4 6 . THIS ISSUE HAS NOT BEEN PRESSED BY THE LD. REPRESENTATIVE OF THE ASSESSEE, THEREFORE, THIS ISSUE IS BEING DECIDED IN FAVOUR OF THE REVENUE AGAINST THE ASSESSEE BEING NOT PRESSED . ISSUE NO. 2 7 . WE HAVE HEARD THE ARGUMENT ADVANCED BY THE LD. REPRESENTATIVE OF THE PARTIES AND PERUSED THE RECORD. UNDER THIS ISSUE THE ASSESSEE HAS CLAIMED THE TDS CREDIT WHICH HAS BEEN DEDUCTED BY REVENUE FROM EMPLOYER OF THE ASSESSEE I,E STATE BANK OF INDIA BY VIRTUE OF ORDER DATED 05.01.2015. COPY OF ORDER DATED 05.01.2015 IS ON THE FILE WHICH SPEAKS THAT THE EMPLOYER PAID THE TDS ALONG WITH THE INTEREST TOTAL IN SUM OF RS. 92530/ - . SINCE THE EMPLOYER HAS PAID THE TDS, THEREFORE, NO DOUBT THE CREDIT IS LIABLE TO BE GIVEN TO THE ASSESSEE IN ACCORDANCE WITH LAW. ACCORDINGLY, WE ALLOWED THE CLAIM OF THE ASSESSEE AND DIRECT THE AO TO GIVE THE CREDIT TO THE ASSESSEE OF THE TDS AMOUNT OF RS.207970/ - . ACCORDINGLY, THIS ISSUE IS DECIDED IN FAVOUR OF THE ASSESSEE AGAINST THE REVENUE. ADDITIONAL GROUND 8. UNDER THIS ISSUE THE ASSESSEE HAS CHALLENGED THE DISALLOWANCE OF INTEREST UPON THE TDS. THE COPY OF ORDER DATED 05.01.2 015 ALSO SPEAKS THIS FACT THAT THE EMPLOYER WAS IN THE DEFAULT FOR DEDUCTING THE TDS ON THE LTC OF THE ASSESSEE , THEREFORE, THE INTEREST U/S 201 & 201( IA) OF THE AC T WAS CHARGED FROM THE EMPLOYER. SINCE THE INTEREST ITA. NO .1689 /AHD /201 7 A.Y. 2012 - 13 5 HAS BEEN CHARGED FROM EMPLOYER THEREFORE NO INTEREST IS NOT LIABLE TO BE CHARGED AGAINST THE ASSESSEE. IN THIS REGARD, WE ALSO FIND SUPPORT OF LAW SETTLED IN THE CASE OF IAN MORRIS VS. ACIT (2016) 76 TAXMANN.COM 271 (SC). ACCORDINGLY, THE INTEREST IS NOT LIABLE TO BE CHARGED FROM THE A SSESSEE AN D THIS ISSUE IS ALSO DECIDED IN FAVOUR ASSESSEE AGAINST THE REVENUE. 8 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS HEREBY ORDERED TO BE PARTLY ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 04 /10/ 2019 . SD/ - SD/ - ( O. P. MEENA ) (AMARJIT SINGH) / ACCOUNTANT MEMBER /JUDICIAL MEMBER SURAT ; DATED : 04 /10/ 2019 V IJAY PAL SINGH/SR. PS COPY SENT TO - ASSESSEE/AO/PR. CIT/ CIT (A)/ ITAT (DR)/GUARD FILE OF ITAT. BY ORDER / / TRUE COPY / / ASSISTANT RE GISTRAR, SURAT