M/s Gillettee Group of India Pvt. Ltd., New Delhi V. DCIT, New Delhi

ITA 302/DEL/2011

• Counselvise Citation: [2011] 135 COUNSELVISE.COM (IT) 0163 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-03-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 23-03-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 18-01-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: REENA SINHAPURI
• Assessee Lawyers: R K KAPOORC A
• Keywords: Question of law; Revised return
• Section: 14A; 139(5)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, IN THE INCOME TAX APPELLATE TRIBUNAL, IN THE INCOME TAX APPELLATE TRIBUNAL, IN THE INCOME TAX APPELLATE TRIBUNAL, NEW DELHI, BENCH NEW DELHI, BENCH NEW DELHI, BENCH NEW DELHI, BENCH C CC C BEFORE SHRI C. L. SETHI, JUDICIAL MEMBER AND SHRI K. D. RANJAN, ACCOUTANT MEMBER ITA NO. 302/DEL/2011 (ASSESSMENT YEAR 2007-08) M/S. GILLETTEE GROUP OF INDIA PVT. LTD., VS. DCIT, CIRCLE 12(1), E-31, OKHLA INDUSTRIAL AREA, PHASE II, NEW DELHI NEW DELHI (APPELLANTS) (RESPONDENTS) PAN / GIR NO. AAACG2468D APPELLANT BY: SHRI R K KAPOOR,C.A. RESPONDENT BY: SMT. REENA SINHA PURI, CIT DR ORDER ORDER ORDER ORDER PER K. D. RANJAN, AM: PER K. D. RANJAN, AM: PER K. D. RANJAN, AM: PER K. D. RANJAN, AM: 1. THIS APPEAL OF THE ASSESSEE FOR THE ASSESSMENT Y EAR 2007-08 ARISES OUT OF ORDER OF CIT(A) XVIII, NEW DELHI. TH E GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE REPRODUCED AS UNDER: 1) THAT THE LD. CIT(A) HAS ERRED IN LAW AND ON FAC TS IN SUSTAINING THE DISALLOWANCE OF ` 7,58,10,845/- U/S 14A MADE BY THE ASSESSEE IN THE COMPUTATION OF INCOME, ON WH OLLY ERRONEOUS, ILLEGAL AND UNTENABLE GROUNDS. 2) THAT THE LD. CIT(A) WAS NOT LEGALLY JUSTIFIED IN HOLDING THAT THE ASSESSEE WAS NOT ENTITLED TO THE CLAIM AS IT HAS FAILED TO REVISE THE RETURN AS PER SECTION 139(5) OF THE I T ACT AND THEREBY UPHOLDING THE ACTION OF THE ASSESSING OFFIC ER IN NOT CONSIDERING THE CLAIM MADE BY THE ASSESSEE IN COURS E OF ASSESSMENT. 3) ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CAS E AND WITHOUT PREJUDICE TO THE ABOVE GROUND, THE DISALLOW ANCE U/S 14A WAS NOT IN ACCORDANCE WITH THE PROVISIONS OF SE CTION 14A AND WAS FAR AN EXCESS OF THE ENTIRE EXPENSES CLAIME D BY THE ASSESSEE IN THE RETURN OF INCOME. 4) IN ANY CASE, ON THE FACTS AND IN THE CIRCUMSTANC ES OF THE CASE THE DISALLOWANCE U/S 14A OF ` 7,58,10,845/- DE SERVES TO BE CONSIDERABLY REDUCED. I.T.A.NO. 302/DEL/2011 2 2. THE ONLY ISSUE FOR CONSIDERATION RELATES TO DISA LLOWANCE OF ` 7,58,10,845/- U/S 14A OF THE ACT. THE FACTS OF THE CASE STATED IN BRIEF ARE THAT HE ASSESSEE FILED RETURN OF INCOME O F ` 2,69,83,829/- ON 24 TH OCTOBER 2007. THE ASSESSING OFFICER COMPLETED THE ASSESSMENT BY MAKING ADDITION OF ` 23,80,155/- ON A CCOUNT OF INTEREST EARNED ON DEPOSITS WHICH WAS NOT DISCLOSED IN THE PROFIT & LOSS ACCOUNT. NO OTHER ADDITION WAS MADE INCLUDING THE ALLEGED DISALLOWANCE OF ` 7,58,10,845/- U/S 14A. 3. THE ASSESSEE PREFERRED APPEAL BEFORE THE CIT(A) RAISING A GROUND THAT THE ASSESSEE HAD REDUCED THE EXPENSES U /S 14A OF ` 7,58,10,845/- WHILE FILING ITS RETURN OF IN COME FO R THE ASSESSMENT YEAR 2007-08 WHICH HOWEVER WORKED OUT AS PER THE M ETHOD PRESCRIBED IN RULE 8D OF ` 90,58,790/-. HOWEVER, I T WAS PLEADED THAT RELIEF OF BALANCE AMOUNT HAS NOT BEEN CONSIDER ED OR PROVIDED IN THE TAX ORDER BY THE ASSESSING OFFICER. UNDER THES E CIRCUMSTANCES, LD. CIT(A) HAS HELD THAT THE PROVISIONS OF SECTION 139(5) ARE ABSOLUTELY CLEAR. IN THE CASE OF ANY OMISSION OR WRONG STATEMENT FURNISHED WITH THE RETURN OF INCOME, IT COULD BE MO DIFIED BY FILING A REVISED RETURN ONLY. HE PLACED RELIANCE ON THE DE CISION OF HON'BLE SUPREME COURT IN THE CASE OF GOETZE INDIA LTD. 284 ITR 323 FOR THE PROPOSITION THAT CLAIM OF DEDUCTION WHICH HAS NOT B EEN MADE IN ITS RETURN OF INCOME CANNOT BE MADE SUBSEQUENTLY WITHO UT FILING THE REVISED RETURN. SINCE THE ASSESSEE HAD NOT FILED R EVISED RETURN, THE CLAIM OF THE ASSESSEE IN RESPECT OF EXCESS DEDUCTIO N OF EXPENDITURE U/S 14A COULD NOT BE ALLOWED. 4. BEFORE US, LD. A.R. FOR THE ASSESSEE SUBMITTED U /S 14A AS PER RULE 8D, THE DISALLOWANCE TO BE MADE IS ` 90,58,790 /-. THE ASSESSEE WHILE FILING RETURN OF INCOME, HAD REDUCED THE EXPE NSES U/S 14A TO THE EXTENT OF ` 7,58,10,845/-. HE, THEREFORE, PLEA DED THAT THE EXCESS EXPENDITURE CLAIMED BY THE ASSESSEE BY MISTA KE, SHOULD BE ALLOWED. ON THE OTHER HAND, LD. CIT DR SUBMITTED T HAT THE I.T.A.NO. 302/DEL/2011 3 ASSESSING OFFICER HAD NOT DISALLOWED ANY EXPENDITUR E U/S 14A OF THE ACT AND THEREFORE, THIS ISSUE DOES NOT ARISE OUT OF THE ORDER OF ASSESSMENT. IF THERE WAS ANY MISTAKE, IT COULD HAV E BEEN RECTIFIED BY FILING REVISED RETURN. SHE ACCORDINGLY OPPOSED THE MOVE OF THE LD. A.R. FOR THE ASSESSEE TO ALLOW THE CLAIM OF THE ASSESSEE IN RESPECT OF DISALLOWANCE OF ` 7,58,10,845/-. 5. WE HAVE HEARD BOTH THE PARTIES AND GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. FROM THE FACTS STATE D ABOVE, IT IS CLEAR THAT IN THE ASSESSMENT ORDER, THE ASSESSING OFFICER HAD NOT DISALLOWED ANY EXPENDITURE U/S 14A OF THE ACT. THE ONLY ADDITION MADE BY THE ASSESSING OFFICER IS IN RESPECT OF INTE REST EARNED ON DEPOSITS WHICH WAS NOT ADMITTED IN THE RETURN OF IN COME. THE ASSESSEE IN ITS RETURN OF INCOME ON ITS OWN HAD DIS ALLOWED ` 7,58,10,845/- U/S 14A OF HT ACT. THE CONTENTION OF THE ASSESSEE IS THAT BY MISTAKE EXCESS DISALLOWANCE WAS MADE WHILE FILING ITS RETURN OF INCOME AND THE SAME SHOULD BE ALLOWED AS IT WAS CLAIMED IN THE APPEAL FILED BEFORE CIT(A) WHO HAD DISMISSED THE CL AIM OF THE ASSESSEE. THERE IS NO DISPUTE THAT THE ASSESSING O FFICER HAD NOT MADE ANY DISALLOWANCE U/S 14A OF THE ACT. IF THERE WAS ANY MISTAKE IN THE CLAIM OF THE ASSESSEE, THE ASSESSEE SHOULD H AVE FILED REVISED RETURN U/S 139(5) OF THE ACT BUT HAVING FAILED TO D O SO, THE ASSESSEE IS NOT PERMITTED TO COME IN APPEAL BEFORE CIT(A) OR BEFORE THIS TRIBUNAL TO CLAIM THAT BY MISTAKE, EXCESS AMOUNT HA S BEEN DISALLOWED BY THE ASSESSEE. THEREFORE, IN OUR CONS IDERED OPINION, WHEN NO ADDITION HAS BEEN MADE BY THE ASSESSING OFF ICER, NO RELIEF CAN BE CLAIMED BEFORE CIT(A) AND BEFORE THIS TRIBUN AL. IT IS ALSO NOT A CASE OF THE LEGAL ISSUE WHICH CAN BE RAISED BEFOR E ANY APPELLATE FORUM. DISALLOWANCE OF EXPENDITURE U/S 14A INVOLV ED INVESTIGATION OF FACTS AND THEREFORE, IT CANNOT BE TREATED PURELY A QUESTION OF LAW. THE DECISION OF HON'BLE SUPREME COURT IN THE CASE O F NATIONAL THERMAL POWER CORPORATION LTD. VS CIT 229 ITR 383 D OES NOT COME TO HELP THE ASSESSEE SINCE INVESTIGATION OF FACTS I S INVOLVED. AS PER I.T.A.NO. 302/DEL/2011 4 THE DECISION OF HON'BLE SUPREME COURT IN THE CASE O F NTPC LTD. (SUPRA) IF A RESULT OF A JUDICIAL DECISION GIVEN WH ILE THE APPEAL IS PENDING BEFORE THE TRIBUNAL, IT IS FOUND THAT A NON TAXABLE ITEM IS TAXED OR A PERMISSIBLE DEDUCTION IS DENIED, THERE I S NO REASON WHY THE ASSESSEE SHOULD BE PREVENTED FROM RAISING THAT QUESTION BEFORE THE TRIBUNAL FOR THE FIRST TIME SO LONG AS THE RELE VANT FACTS ARE ON RECORD IN RESPECT OF THE ITEM. IN THE INSTANT CASE AS OBSERVED ABOVE, THE RELEVANT FACTS ARE NOT ON RECORD AND IN ORDER TO ARRIVE AT THE DECISION, THE FACTS HAVE TO BE INVESTIGATED AND ACCORDINGLY, NO RELIEF CAN BE ALLOWED TO THE ASSESSEE. THEREFORE, IN OUR CONSIDERED OPINION, LD. CIT(A) WAS JUSTIFIED IN DISALLOWING T HE CLAIM OF THE ASSESSEE. 6. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS D ISMISSED. 7. ORDER PRONOUNCED IN THE OPEN COURT ON CLOSE OF H EARING ON 23 RD MARCH 2011. SD./- SD./- (C. L. SETHI) (K. D. RANJAN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED:23 RD MAR., 2011 SP. COPY FORWARDED TO 1. APPELLANT 2. RESPONDENT 3. CIT TRUE COPY: BY ORDER 4. CIT(A) 5. DR DY. REGISTRAR, ITAT, NEW DELHI