The Ahmedabad Co- Op. Dept. Stores Ltd. [ Apna Bazaar], Ahmedabad V. The DCIT, Cir1(3), Ahmedabad

ITA 2325/AHD/2017

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 6112 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 9 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-08-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: C
• Assessment Year: 2013-2014
• Appeal Filed On: 17-10-2017
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: L P JAIN
• Assessee Lawyers: G C PIPARA
• Section: 43B; 143(3); 80P; 139(1); 139

Judgement Text

, C IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER &SHRI AMARJIT SINGH, ACCOUNTANT MEMBER ./I.T.A. NO. 2325/AHD/2017 ( / ASSESSMENT YEAR: 2013-14) THE AHMEDABAD CO-OP. DEPT. STORES LTD. [APNA BAZAR] MULTI STOREYED GOVERNMENT BUILDING, SARDAR PARK, LAL DARWAJA, AHMEDABAD- 380001 / VS. DCIT CIRCLE-1(3), 3 RD FLOOR, PRATYAKSH KAR BHAVAN, AMBAWADI, AHMEDABAD- 380015 ./ ./PAN/GIR NO. : AAB AT0 757 D ( /APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI G. C. PIPARA, AR / RESPONDENT BY: SHRI L. P. JAIN, SR. DR ! /DATE OF HEARING 26/07/2019 '# ! / DATE OF PRONOUNCEMENT 06/08/2019 $% /O R D E R PER AMARJIT SINGH - AM: THE APPEAL FILED BY THE ASSESSEE FOR A.Y. 2013-14, ARISE FROM ORDER OF THE CIT(A)-10, AHMEDABAD DATED 19.09.2017, IN PROCEEDIN GS UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. 2. THE SOLITARY GROUND OF APPEAL OF THE ASSESSEE IS FILED AGAINST THE DECISION OF LD. CIT(A) IN CONFIRMING THE ADDITION OF RS. 29,95,031/ - U/S. 43B OF THE ACT ON THE GROUND THAT UNPAID BONUS WAS PAID AFTER THE DUE DAT E OF FILING OF RETURN OF INCOME. THE SECOND ALTERNATIVE GROUND OF APPEAL OF THE ASSE SSEE IS THAT IF THE DISALLOWANCE U/S. 43B IS SUSTAINED THEN THE SAME TO BE CONSIDERED FOR DEDUCTION U/S. 80P OF THE ACT. ITA NO. 2325/AHD/2017 A.Y. 2013-14 2 3. THE ASSESSMENT U/S. 14393) OF THE ACT WAS FINALI ZED ON 22.02.2016 AND TOTAL INCOME WAS DETERMINED AT RS. 54,03,150/-. THE AO H AS ALSO ALLOWED DEDUCTION U/S. 80P UNDER CHAPTER VIA TO THE AMOUNT OF RS. 54,65,40 7/-. THE ISSUE IN APPEAL IS PERTAINED TO THE ADDITION OF RS. 29,95,031/- MADE U /S. 43B OF THE ACT IN RESPECT OF UNPAID BONUS WHICH WAS PAID AFTER DUE DATE OF FILIN G RETURN OF INCOME. IN THE APPEAL THE LD. CIT(A) HAS DISMISSED THE APPEAL OF THE ASSE SSEE RETREATING THE SAME FACT REPORTED BY THE AO. 4. DURING THE COURSE OF APPELLATE PROCEEDING BEFORE US THE LD. COUNSEL HAS SUBMITTED DETAIL OF SUBMISSION AND COPIES OF DOCUME NT FURNISHED BEFORE AO AND LD. CIT(A) DURING THE COURSE OF ASSESSMENT AND APPELLAT E PROCEEDINGS. IT WAS CONTENDED THAT CHEQUES OF UNPAID BONUS WERE ISSUED TO THE RES PECTIVE EMPLOYEES BEFORE THE DUE DATE OF FILING RETURN OF INCOME AND CLEARANCE OF TH E CHEQUE IS NOT IN THE CONTROL OF THE ASSESSEE. THEREFORE, ASSESSEE HAS DISCHARGED ITS L IABILITY BY ISSUING CHEQUES OF BONUS TO THE EMPLOYEES BEFORE THE DUE DATE OF FILING OF R ETURN OF INCOME U/S. 139(1) OF THE ACT. IT IS ALSO SUBMITTED THAT ASSESSEE IS A COOPE RATIVE SOCIETY AND ITS INCOMES IS EXEMPT U/S. 80P OF THE ACT AND BY DISALLOWING THE A FORESAID PAYMENT U/S. 43B OF THE ACT, THE ASSESSEE IS ENTITLED FOR MORE EXEMPTION U/ S. 80P OF THE ACT. THE LD. COUNSEL HAS ALSO PLACED RELIANCE ON THE DECISION OF HARYANA AND PUNJAB HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME TAX VS. HINDUSTAN WIRE PR ODUCTS LTD. VIDE IT APPEAL NO. 109 OF 2001 DATED 04.12.2001, IN THE CASE OF PR. CO MMISSIONER OF INCOME TAX VS. M/S. SUN PHARMACEUTICAL INDUSTRIES IN THE HIGH COUR T OF GUJARAT VIDE TAX APPEAL NO. 854 OF 2016 DATED 30.03.2017 AND THE CBDT CIRCULAR NO. 37/2016 F. NO. 279/MISC./140/2015/ITJ DATED 02.11.2016. 5. ON THE OTHER HAND, THE LD. DR HAS SUPPORTED THE ORDER OF LOWER AUTHORITIES. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE MATER IALS ON RECORD. THE AO HAS MADE ADDITION OF RS. 29,95,031/- U/S. 43B IN RESPEC T OF UNPAID LIABILITY OF BONUS. THE AO WAS OF THE VIEW THAT THE BONUS TO THE AMOUNT OF RS. 29,95,031/- WAS PAID AFTER THE DUE DATE OF FILING THE RETURN OF INCOME. THEREFORE , THE SAME WAS DISALLOWED U/S. 43B ITA NO. 2325/AHD/2017 A.Y. 2013-14 3 OF THE ACT WHICH CLEARLY STIPULATE THAT CERTAIN DED UCTION TO BE MADE ONLY ON ACTUAL PAYMENT. HOWEVER, AS PER THE PROVISO TO THE SAID S ECTION PROVIDE THAT NOTHING CONTAINED IN THIS SECTION SHALL APPLY IN RELATION T O ANY SUM WHICH IS ACTUALLY PAID BY THE ASSESSEE ON OR BEFORE THE DUE DATE APPLICABLE I N THE CASE FOR FURNISHING THE RETURN OF INCOME UNDER (1) OF SEC. 139 IN RESPECT OF THE P REVIOUS YEAR IN WHICH THE LIABILITY TO PAY SUCH SUM WAS INCURRED. THE ASSESSEE HAS CLAIME D THAT IT HAS DULY ISSUED THE CHEQUES IN RESPECT OF UNPAID BONUS BEFORE THE DUE D ATE OF FILING RETURN OF INCOME FOR A.Y. 2013-14 AND IN ITS SUPPORT THE ASSESSEE HAS FU RNISHED THE COPY OF LEDGER OF UNPAID BONUS EXPENSES AND COPY OF BONUS REGISTER SH OWING THE DETAILS OF NAME OF THE EMPLOYEES, DESIGNATION, TOTAL SALARY, AMOUNT OF BON US AND SIGNATURE OF THE RESPECTIVE EMPLOYEES ON THE REVENUE STAMP. IT IS NOTICED THAT AO HAS NOT CONTROVERT THE CLAIM THAT PAYMENT OF THE UNPAID BONUS WAS MADE BEFORE TH E FILING OF RETURN OF INCOME. CONSIDERING THE AFORESAID FACTS AND THE CIRCULAR OF THE CBDT NO. 37/2016 AND DECISION OF HONBLE JURISDICTIONAL HIGH COURT AS CI TED ABOVE THE CLAIM OF THE ASSESSEE FOR DEDUCTION OF BONUS TO THE AMOUNT OF RS. 29,95,0 31/- U/S. 43B IS ALLOWED. THEREFORE, ALTERNATE GROUND OF APPEAL OF THE ASSESS EE FOR CONSIDERING DEDUCTION U/S. 80P IS DISMISSED. IN THE RESULT, GROUND OF APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED. SD/- SD/- (MAHAVIR PRASAD) (AMARJIT SINGH) JUDICIAL MEMBER ACCOUNT ANT MEMBER AHMEDABAD: DATED 06/08/2019 TANMAY TRUE COPY / COPY OF ORDER FORWARDED TO:- 1. / REVENUE 2. $ / ASSESSEE 3. &' ( / CONCERNED CIT 4. ( - / CIT (A) 5. )*+ ' , ! ' , ,-$&$ / DR, ITAT, AHMEDABAD 6. +. / / GUARD FILE. BY ORDER / $% , 0 / , ! ' , ,-$&$ 1 THIS ORDER PRONOUNCED IN OPEN COURT ON 0 6/08/2019