Hareshkumar Ratilal Kansara, Ahmedabad V. ITO, Ward :4(2)(2), , Vadodara

ITA 2705/AHD/2017

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 3253 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 6 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-06-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 13-02-2020
• Assessment Year: 2012-2013
• Appeal Filed On: 04-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S S SHUKLA
• Keywords: Additional evidence
• Section: 48; 10

Judgement Text

, SMC IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD (CONDUCTED THROUGH VIRTUAL COURT) BEFORE SHRI RAJPAL YADAV, VICE-PRESIDENT ITA NO.2705/AHD/2017 / ASSTT.YEAR : 2012-13 HARESHKUMAR RATILAL KANSARA 3, PRATHMESH APARTMENT OPP: DHANANJAY TOWER SATELLITE AHMEDABAD 380 015. PAN : ABDPK 0268 Q VS. ITO, WARD-4(2)(2) VADODARA. ( APPLICANT ) ( RESPONENT ) ASSESSEE BY : SHRI PRITESH SHAH, CA REVENUE BY : SHRI S.S. SHUKLA, SR.DR / DATE OF HEARING : 27/05/2021 / DATE OF PRONOUNCEMENT: 15/06/2021 !'/ O R D E R ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AGAINST O RDER OF THE LD.CIT(A)-4, VADODARA DATED 8.9.2017 PASSED FOR THE ASSTT.YEAR 20012-13. 2. SOLE GRIEVANCE OF THE ASSESSEE IS THAT THE LD.CI T(A) HAS ERRED IN CONFIRMING DISALLOWANCE OF LEAVE TRAVEL CO NCESSION AMOUNTING TO RS.2,94,594/- CLAIMED UNDER SECTION 10 (5) OF THE INCOME TAX ACT, 1961. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE AT THE RELEVANT TIME WAS WORKING WITH STATE BANK OF INDIA. AS PER FORM NO.16 ISSUED BY THE EMPLOYER, THE ASSESSEE WAS HAVING INC OME FROM SALARY AND INCOME FROM OTHER SOURCES. THE ASSESSEE HAS FILED HIS ITA NO.2705/AHD/2017 2 RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION D ECLARING TOTAL INCOME AT RS.10,65,370/-. THE CASE OF THE ASSESSEE WAS SELECTED FOR SCRUTINY ASSESSMENT AND NOTICE UNDER SECTION 14 3(2) WAS ISSUED AND SERVED UPON THE ASSESSEE ON 29.10.2015. DURING THE SCRUTINY ASSESSMENT, IT WAS NOTICED BY THE AO THAT THE ASSESSEE HAS AVAILED LTC FOR TRAVELLING TO PLACES IN INDIA A S WELL AS TRAVELLING TO CERTAIN FOREIGN COUNTRIES AND HAS CLA IMED EXEMPTION UNDER SECTION 10(5) OF THE ACT FOR THE REIMBURSEMEN T OF ENTIRE CLAIM OF LTC. THE LD.AO FURTHER NOTICED THAT SINCE JOURNEY UNDERTAKEN BY THE ASSESSEE INCLUDED FOREIGN TRAVELL ING ALSO, THEREFORE, PROVISIONS OF SECTION 10(5) OF THE ACT W AS NOT APPLICABLE TO THE ASSESSEE, AND THEREFORE, HE COULD NOT CLAIM THE EXEMPTION. THE LD.AO SOUGHT EXPLANATION FROM THE ASSESSEE AS TO WHY THE SAME BE NOT DISALLOWED. HOWEVER, THE AS SESSEE COULD NOT SUBMIT SATISFACTORY EXPLANATION TO THE AO. TH E LD.AO ACCORDINGLY DISALLOWED THE CLAIM OF THE ASSESSEE BY HOLDING THAT CONDITIONS ENUMERATED IN SECTION 10(5) DID NOT ALLO W ASSESSEE TO CLAIM EXEMPTION WHERE THE LTC AMOUNT HAS BEEN SPENT ON FOREIGN TRAVEL AT FOREIGN DESTINATION OUTSIDE INDIA . THE LD.AO ADDED THE AMOUNT OF RS.2,94,594/- TO THE TOTAL INCO ME OF THE ASSESSEE. DISSATISFIED WITH THE ACTION OF THE LD.A O, THE ASSESSEE WENT IN APPEAL BEFORE THE LD.FIRST APPELLATE AUTHOR ITY, WHO AFTER GOING THROUGH THE PROVISIONS OF SECTION 10(5) OF TH E ACT CONFIRMED BY THE ORDER OF THE AO. STILL AGGRIEVED , THE ASSESSEE IS NOW BEFORE THE TRIBUNAL. ITA NO.2705/AHD/2017 3 4. BEFORE ME, THE LD.COUNSEL FOR THE ASSESSEE FILED WRITTEN SUBMISSIONS. IN THE WRITTEN SUBMISSIONS, THE ASSES SEE INTER ALIA PLEADED THAT THE ASSESSEE WAS UNDER BONA FIDE BELIEF THAT LTC SPENT FOR TRAVELLING BOTH IN INDIA AND FOREIGN COUN TRIES WERE DEDUCTABLE EXPENSES UNDER THE INCOME TAX ACT, AND T HEREFORE THE SAME WAS NOT LIABLE TO BE TAXED. FOR CLAIMING THE EXEMPTION, THE ASSESSEE WAS REQUIRED TO BE SUBMITTED THE DETAILED BREAK-UP OF LTC TRAVEL EXPENSES. WHEN THE ASSESSEE SOUGHT SUC H DETAILS FROM HIS EMPLOYER, STATE BANK OF INDIA, THE SAME CO ULD NOT BE MADE AVAILABLE TO THE ASSESSEE, DUE TO ADMINISTRATI VE REASONS, VIZ. SHIFTING AND MERGING OF VARIOUS DEPARTMENTS OF THE BANK, THE RECORDS AND DETAILS WERE NOT READILY AVAILABLE TO T HE ASSESSEE, AND THEREFORE, THE SAME COULD NOT BE SUBMITTED BEFORE T HE AO IN TIME. NOW AFTER VIGOROUS FOLLOW UP BY THE ASSESSEE, SBI T RACED THE DETAILS OF LTC, AND GAVE THE DETAILS OF BREAK-UP/BI FURCATION OF TOTAL TRAVELLING EXPENSES INTO INDIAN TRAVEL AND FO REIGN TRAVEL ON 01.8.2017. THE ASSESSEE HAS PLACED ON RECORD, THE COPY OF CERTIFICATE IN THE FORM OF ADDITIONAL EVIDENCE ISSU ED BY THE STATE BANK OF INDIA DATED 21.12.2020 GIVING THE DETAILS O F BREAK- UP/BIFURCATION OF LTC AMOUNT INTO FOREIGN AND DOMES TIC. BEFORE ME, THE ASSESSEE IS SEEKING ADMISSION OF ADDITIONAL EVIDENCE, WHICH COULD NOT BE PLACED BEFORE THE REVENUE AUTHOR ITIES DUE TO THE REASONS STATED ABOVE. IT IS ACCORDINGLY PRAYED THAT ADDITIONAL ITA NO.2705/AHD/2017 4 EVIDENCE MAY BE TAKEN ON RECORD AND THE CLAIM OF TH E ASSESSEE BE ALLOWED. 5. ON THE OTHER HAND, THE LD.DR SUPPORTED THE ORDER S OF THE REVENUE AUTHORITIES. HE FURTHER SUBMITTED THAT THE PROVISIONS OF SECTION 10(5) OF THE ACT IS VERY CLEAR IN THIS BEHA LF THAT NO EXEMPTION IS AVAILABLE FOR THE AMOUNT SPENT ON FORE IGN TRAVEL JOURNEY OUT OF LTC, AND THEREFORE, THERE IS NO MERI T IN THE CLAIM OF THE ASSESSEE. 6. ON DUE CONSIDERATION OF THE FACTS AND CIRCUMSTAN CES, AND ON PERUSAL OF THE MATERIAL AVAILABLE ON RECORD, I FIND THAT THE ASSESSEE HAS AVAILED LTC, WHICH HE SPENT ON TRAVELLING BOTH IN INDIA AND ABROAD, WHICH THE ASSESSEE HAS NOT DENIED. THE CA SE OF THE ASSESSEE IS THAT THE ASSESSEE IS ENTITLED FOR EXEMP TION UNDER SECTION 10(5) OF THE ACT ATLEAST FOR THE PORTION OF THE LTC AMOUNT SPENT ON TRAVELING IN INDIA. HOWEVER, HE COULD NOT FURNISH THE DETAILS OF BREAK-UP OF THE SAME DUE TO SOME ADMINIS TRATIVE CONSTRAINS EXPLAINED IN HIS WRITTEN SUBMISSIONS. T HE LD.COUNSEL FOR THE ASSESSEE DREW MY ATTENTION TOWARDS PAGE NO. 48 OF THE PAPER BOOK, CONTAINING A CERTIFICATE FROM THE STATE BANK OF INDIA DATED 21.12.2020 WHEREIN THE BANK HAS GIVEN BIFURCA TION OF TOTAL AMOUNT OF LTC GIVEN TO THE ASSESSEE, AS RS.1,44,762 /- TOWARDS FOREIGN TRAVEL, AND RS.2,3,735/- TOWARDS DOMESTIC T RAVELLING. THIS DETAIL WAS NOT WITH THE ASSESSEE AT THE TIME OF ASS ESSMENT, AND COULD NOT BE FURNISHED WHEN CALLED FOR. SINCE, THE SAME IS NOW ITA NO.2705/AHD/2017 5 MADE AVAILABLE TO THE ASSESSEE BY THE BANK, THE SAM E IS SOUGHT TO BE TAKEN ON RECORD AS ADDITIONAL EVIDENCE, AND BASE D ON WHICH, THE CLAIM OF THE ASSESSEE IS TO BE ALLOWED. I AM O F THE VIEW THAT SINCE THIS DETAIL WAS NOT MADE AVAILABLE TO THE AO AT THE TIME OF ASSESSMENT, AND THE AO HAS NO OCCASION TO CONSIDER THE SAME, THEREFORE IN THE INTEREST OF JUSTICE, I RESTORE THE ISSUE BACK TO THE FILE OF THE LD.AO TO CONSIDER ALLOWABILITY OR OTHER WISE OF CLAIM OF THE ASSESSEE IN ACCORDANCE WITH PROVISIONS OF SECTI ON 10(5) OF THE ACT IN LIGHT OF THE ADDITIONAL EVIDENCE FILED BY TH E ASSESSEE IN THE FORM OF CERTIFICATE DATED 21.12.2020 ISSUED BY THE STATE BANK OF INDIA. I ORDER ACCORDINGLY. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE COURT ON 15 TH JUNE, 2021 AT AHMEDABAD. SD/- (RAJPAL YADAV) VICE-PRESIDENT AHMEDABAD; DATED 15/06/2021