Sogo Computers Pvt Ltd, Bangalore V. Commissioner of Income Tax, Bangalore

ITA 2038/BANG/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 7111 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 24-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PADMA MEENAKSHI JT BENGALURU
• Assessee Lawyers: MUKESH P SHET
• Keywords: Opportunity of being heard; Revised return

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : BANGALORE BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER ITA NO. 2038/BANG/2016 ASSESSMENT YEAR : 2009 - 10 SOGO COMPUTERS PVT. LTD., D-1, HAYES COURT, NO.11/9, HAYES ROAD (OFF RICHMOND ROAD), BANGALORE 560 025. PAN: AACCS 8954L VS. THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE 12(3), BANGALORE. APP ELLANT RESPONDENT APP ELLANT BY : SHRI MUKESH P. SHET, CA RESPONDENT BY : SMT. PADMAMEE NAKSHI, JT.CIT(DR)(ITAT), BENGALURU DATE OF HEARING : 15.11.2017 DATE OF PRONOUNCEMENT : 15 .12.2017 O R D E R PER SUNIL KUMAR YADAV, JUDICIAL MEMBER THIS APPEAL IS PREFERRED BY THE ASSESSEE AGAINS T THE ORDER OF THE CIT(APPEALS) INTER ALIA ON THE FOLLOWING GROUNDS:- THE FOLLOWING GROUNDS ARE TAKEN WITHOUT PREJUDICE TO EACH OTHER ON FACTS AND IN LAW, 1] THE ORDER PASSED U/S 250 BY THE CIT (APPEALS) B ANGALORE 6, DISALLOWING THE CLAIM MADE WITH THE ASSESSING OF FICER BEFORE COMPLETING THE ASSESSMENT FOR ALLOWING THE DISALLOW ANCE MADE IN THE ASSESSMENT YEAR 2008-09 FOR NON PAYMENT OF TDS DURI NG THE ITA NO.2038/BANG/2016 PAGE 2 OF 4 ASSESSMENT YEAR 2008-09 BUT PAID DURING THE ASSESSM ENT YEAR 2009-10 OF RS.28,96,476/- ALLOWABLE U/S 40(A)(IA) BE DECLAR ED BAD IN LAW. 2] THE LEARNED CIT (APPEALS)BANGALORE 6 FAILED TO ALLOW U/S 251 OF THE INCOME TAX ACT 1961 THE CLAIM MADE TO HI M TO ALLOW THE EXPENSES OF RS.28,96,476 ALLOWABLE U/S 40(A)(IA) OF THE INCOME TAX ACT 1961. THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND OR DELETE ANY OF THE ABOVE GROUNDS OF APPEAL. 2. DURING THE COURSE OF HEARING, THE LD. COUNSEL F OR THE ASSESSEE HAS INVITED OUR ATTENTION THAT ASSESSEE HAS SUBMITTED T HE RETURN OF INCOME ONLINE, THEREAFTER HE NOTICED THAT A SUM OF RS.28,9 6,476 CLAIMED IN THE EARLIER YEARS WAS DISALLOWED ON ACCOUNT OF NON-DEDU CTION OF TAX AT SOURCE U/S. 40(A)(IA) OF THE ACT. THOUGH THE TDS WAS DEDU CTED IN THE IMPUGNED ASSESSMENT YEAR, BUT THE ASSESSEE HAS NOT RAISED A CLAIM IN THIS REGARD. THE RETURN COULD NOT BE REVISED ONLINE AND THE ASSE SSEE HAS RAISED A CLAIM BEFORE THE AO IN THIS REGARD, BUT THE AO HAS REJECT ED THE CLAIM OF THE ASSESSEE ON THE GROUND THAT THE ASSESSEE HAS NOT FI LED A REVISED RETURN OF INCOME. THE ASSESSEE PREFERRED AN APPEAL BEFORE T HE CIT(APPEALS) WITH THE SUBMISSION THAT SINCE THE ASSESSEE HAS DEDUCTED THE TDS AND PAID THE SAME, THE CLAIM OF THE IMPUGNED PAYMENT SHOULD BE A LLOWED, BUT THE CIT(APPEALS) DID NOT ALLOW THE SAME. 3. NOW THE ASSESSEE IS BEFORE THE TRIBUNAL AND REIT ERATED ITS CONTENTIONS. IN SUPPORT OF ITS CONTENTIONS, THE LD . COUNSEL FOR THE ASSESSEE PLACED RELIANCE UPON THE JUDGMENT OF THE HONBLE MA DRAS HIGH COURT IN THE ITA NO.2038/BANG/2016 PAGE 3 OF 4 CASE OF CIT V. ABHINITHA FOUNDATION (P) LTD., 83 TAXMANN.CO M 100 (MADRAS) AND THE INSTRUCTION ISSUED BY THE CBDT. 4. THE LD. DR SIMPLY PLACED RELIANCE UPON THE ORDER OF THE CIT(APPEALS). 5. HAVING CAREFULLY EXAMINED THE ORDERS OF THE LOWE R AUTHORITIES IN THE LIGHT OF RIVAL SUBMISSIONS, WE FIND THAT IN THE LIG HT OF THE JUDGMENT OF THE HONBLE APEX COURT IN THE CASE OF GOETZE (INDIA) LTD. V. CIT, 284 ITR 323 / 157 TAXMAN 1 (SC) , THE AO MAY NOT ENTERTAIN A NEW CLAIM WHICH HAS NO T BEEN RAISED IN THE ORIGINAL OR REVISED RETURN OF IN COME, BUT THERE IS NO RESTRICTION FOR THE CIT(APPEALS) OR THE TRIBUNAL. IT IS SETTLED POSITION OF LAW THAT THE AO SHOULD EXAMINE THE CLAIM OF ASSESSEE IN DEPENDENTLY AND ASSESS THE CORRECT INCOME IN THE RIGHT HAND. WHEN THE ISSUE WAS RAISED BEFORE THE CIT(APPEALS), ATLEAST THE CIT(APPEALS) S HOULD HAVE EXAMINED THE SAME AND IF THE ASSESSEE IS ENTITLED TO IT, IT SHOULD HAVE BEEN ALLOWED. BUT THE CIT(APPEALS) DID NOT EXERCISE HIS POWER. 6. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE HAS CONTENDED THAT TDS FOR THE IMPUGNED ASSESSMENT YEAR WAS DEDUCTED AND D EPOSITED, THEREFORE THE RELEVANT AMOUNT SHOULD BE ALLOWED. IN THIS REG ARD, WE FIND MERIT IN THE CONTENTION OF THE ASSESSEE AND WE ACCORDINGLY SET A SIDE THE ORDER OF THE CIT(APPEALS) IN THIS REGARD AND RESTORE THE MATTER TO THE ASSESSING OFFICER WITH A DIRECTION TO ALLOW THE RELEVANT DEDUCTION IF THE TDS IS DEDUCTED AND DEPOSITED BY THE ASSESSEE. ACCORDINGLY, THE AO IS DIRECTED TO READJUDICATE ITA NO.2038/BANG/2016 PAGE 4 OF 4 THE ISSUE ON MERITS, AFTER AFFORDING OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON THIS 15 TH DAY OF DECEMBER, 2017. SD/- SD/- ( INTURI RAMA RAO ) ( SUNIL KUMAR YADAV ) ACCOUNTANT MEMBER JUDICIAL MEMBER BANGALORE, DATED, THE 15 TH DECEMBER, 2017. / D ESAI S MURTHY / COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY ITAT, BANGALORE.