M/S. JILA SAHKARI KENDRIYA BANK MARYADIT, Hoshagabad V. THE DCIT 1(1), Bhopal

ITA 307/IND/2015

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 7127 (ITAT-INDORE)
• Duration Of Justice: 4 year(s) 5 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-10-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 08-05-2015
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: RAJ E EB KUMAR
• Assessee Lawyers: N D PATWA
• Keywords: Business expenditure; Opportunity of being heard; Set aside
• Section: 143(3); 142(1); 201; 143(2); 37; 28

Judgement Text

JILA SAHAKARI KENDRIYA BANK MARYADIT ITA NO.307/IND/2015 1 , , IN THE INCOME TAX APPELLATE TRIBUNAL, INDORE BENCH, INDORE BEFORE SHRI KUL BHARAT, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ITA NO.307/IND/2015 ASSESSMENT YEAR 2010-11 REVENUE BY SHRI RAJ E EB KUMAR, SR.DR ASSESSEE BY S/SHRI ASHISH GOYAL & N.D. PATWA, ADVOCATES DATE OF HEARING 22 . 1 0 . 201 9 DATE OF PRONOUNCEMENT 24 . 1 0. 201 9 O R D E R PER MANISH BORAD, AM. THE ABOVE CAPTIONED APPEAL FILED AT THE INSTANCE OF ASSESSEE PERTAINING TO ASSESSMENT YEAR 2010-11 IS DIRECTED A GAINST THE ORDERS OF LD. COMMISSIONER OF INCOME TAX (APPEALS)- I (IN SHORT LD.CIT(A)], BHOPAL DATED 27.02.2015 WHICH IS ARIS ING OUT OF THE ORDER U/S 143(3) OF THE INCOME TAX ACT 1961(IN SHOR T THE ACT) DATED 14.03.2013 FRAMED BY DCIT-1(1), BHOPAL. J ILA SAHA KARI KENDRIYA BANK MARYADIT, OPPOSITE NEHRU PARK, HOSHANGABAD VS. DCIT - 1 (1) , BHOPAL ( APPELLANT ) (RESPONDENT ) PAN AAAJJ0267C JILA SAHAKARI KENDRIYA BANK MARYADIT ITA NO.307/IND/2015 2 2. ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL; ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE:- 1. THE LD. CIT (A) ERRED IN SUSTAINING THE ASSESSMENT WHICH IS BARRED BY LIMITATION, PASSED WITHOUT JURISDICTION, BAD-IN- LAW, CONTRARY TO MATERIAL AND LAW AND WAS ILLEGAL. 2. THE LD. CIT (A) ERRED IN SUSTAINING THE ADDITION OF RS.47,07,153/- ON ACCOUNT OF PROVISION OF CADRE FUND. 3. THE LD. CIT (A) ERRED IN SUSTAINING THE ADDITIO N OF RS.85,00,000/- ON ACCOUNT OF PROVISION FOR GRATUITY. 4. THE LD. CIT (A) ERRED IN SUSTAINING THE ADDITION OF RS.44,16,854/- ON ACCOUNT OF DISALLOWANCE OF VARIOUS EXPENSES. 5. THE LD. CIT (A) ERRED IN SUSTAINING THE ADDITION OF RS.12,07,497/- BY NOT ALLOWING SET-OFF OF BROUGHT FORWARD BUSINESS LOSS, WHICH WAS RIGHTLY CLAIMED BY THE APPELLANT. THE APPELLANT CRAVES LEAVE TO ADD, AMEND OR MODIFY ANY OF THE GROUNDS OF APPEAL. 4. BRIEF FACTS OF THE CASE AS CULLED OUT FROM THE R ECORDS ARE THAT ASSESSEE IS A BANK CARRYING OUT BANKING BUSINESS. A SSESSEE FILED ITS E-RETURN OF INCOME ON 12.10.2010 DECLARING INCOME A T RS. NIL. NOTICE U/S 142(1) & 143(2) OF THE I.T. ACT DULY SE RVED UPON THE ASSESSEE. DURING THE YEAR UNDER CONSIDERATION THE ASSESSEE HAD SHOWN GROSS RECEIPTS AT RS.55,68,36,579/- WITH NET PROFIT (BEFORE JILA SAHAKARI KENDRIYA BANK MARYADIT ITA NO.307/IND/2015 3 TAX) AT RS.20,37,175/-. ON PERUSAL OF THE P&L IT WA S OBSERVED THAT A SUM OF RS.47,07,153/- HAS BEEN DEBITED UNDER THE HEAD PROVISION FOR CADRE FUND WHICH IS ADDED BACK TO T HE TOTAL INCOME OF THE BANK. IT IS ALSO NOTICED THAT THE BANK HAD DEBI TED A SUM OF RS.10,77,38,753/- UNDER THE HEAD PROVISIONS AND A SUM OF RS.44,16,854/- UNDER THE HEAD OTHER EXPENSES IN P ROFIT & LOSS ACCOUNT WHICH WAS ALSO BEEN ADDED BACK TO THE TOTAL INCOME OF THE ASSESSEE BANK FOR WANT OF DETAILS/JUSTIFICATION OF THE CLAIM. BESIDES THIS LD. A.O DENIED THE CLAIM OF DEDUCTION OF RS.12 ,07,497/- BEING BROUGHT FORWARD BUSINESS LOSS OF ASSESSMENT YEAR 20 09-10 FROM THE TOTAL INCOME. THE INCOME WAS ASSESSED AT RS.1 1,80,70,257/-. AGGRIEVED ASSESSEE PREFERRED AN APPEAL LD. CIT(A)AN D PARTLY SUCCEEDED. 5. NOW THE ASSESSEE BANK IS IN APPEAL BEFORE THE TR IBUNAL. GROUND NO.1: LD. COUNSEL FOR THE ASSESSEE HAS NOT PRESSED THIS GROUND, HENCE THIS GROUND IS DISMISSED AS NOT PRESSED. JILA SAHAKARI KENDRIYA BANK MARYADIT ITA NO.307/IND/2015 4 GROUND NO.2,3,4 & 5: LD. COUNSEL FOR THE ASSESSEE MADE FOLLOWING S UBMISSIONS; GROUND NO. 2: CONTRIBUTION TO CADRE FUND RS.47,07,1 53 1. THERE WERE DIRECTIONS BY DEPARTMENT OF CO-OPERATIVE S FOR DEPUTATION OF STAFF CALLED 'CADRE STAFF' TO PRIMARY SOCIETIES. 2. THE APPELLANT BANK HAS PERFORMED MANY WORKS THROUGH THESE SOCIETIES. THE PROCUREMENT OF GRAINS AND DISTRIBUTION OF FUNDS TO MANY AGRICULTURISTS IS DONE BY THE APPELLANT BANK THROUG H THESE SOCIETIES. 3. THE APPELLANT HAD MADE PROVISION ON ACCOUNT OF SALA RIES OF SUCH EMPLOYEES. THIS PROVISION IS CALLED AS 'CADRE FUND' [ALSO CALLED 'SAMWARG NIDHI']. THE FUND WAS REQUIRED TO BE' ESTA BLISHED STATUTORILY. PB 82 IS THE NOTIFICATION OF DEPARTMENT OF COOPERAT IVES DATED 23.01.2003, WHEREBY IT IS DIRECTED THAT SUCH FUND I S REQUIRED TO BE MADE. THIS NOTIFICATION WAS BASED ON JUDGMENT OF APPELLAT E COURT OF SOCIETIES, WHICH WAS QUOTED IN ANOTHER LETTER DATED 20.09.2002 . PB 86-87. 4. THE DETAILS OF EMPLOYEES DEPUTED, WHOSE SALARIES WE RE TO BE PAID IS GIVEN AT PB 83- 85. 5. LD ASSESSING OFFICER/ CIT(A) HELD THAT THE EXPENDIT URE WAS NOT WHOLLY AND EXCLUSIVELY FOR THE BUSINESS OF THE APPELLANT B ANK. SUBMISSIONS 1. IT IS SUBMITTED THAT THE CONTRIBUTION TO 'CADRE FUND' IS A STATUTORY PAYMENT. 2. IN THE CASE OF KRISHI UPAJ MANDI SAMITI, 12 ITJ 12 (TRIB. INDORE) IT WAS HELD THAT ANY STATUTORY PAYMENT OR CONTRIBUTION IS ALLOWABLE, AS WITHOUT SUCH CONTRIBUTION, BUSINESS COULD NOT HAVE BEEN DON E. JILA SAHAKARI KENDRIYA BANK MARYADIT ITA NO.307/IND/2015 5 GROUND NO. 3: PROVISION FOR GRATUITY -RS. 85,00,000 1. APPELLANT-SOCIETY MADE PROVISION FOR GRATUITY TO IT S EMPLOYEES. THE APPELLANT HAD MADE AN ARRANGEMENT WITH LIC OF INDIA FOR MAINTENANCE OF GRATUITY FUND. 2. THE TRUST DEED WITH LIC IS AT PB 97-105. 3. DETAILS OF PREMIUM PAID, AS CONFIRMED BY LIC IS AT PB 106. 4. THE LIC OF INDIA APPLIED TO THE CIT, BHOPAL FOR APP ROVAL ON 29.07.2011 OF THE SAID GRATUITY FUND. HOWEVER, NO OBJECTION WA S RECEIVED FROM THE DEPARTMENT. 5. LD CIT(A) HELD THAT SINCE THE GRATUITY FUND WAS NOT APPROVED, THEREFORE, THE DEDUCTION WAS NOT TO BE GRANTED. SUBMISSIONS :- . 1. IT IS SUBMITTED THAT THE APPELLANT, WITH THE HELD O F LIC OF INDIA, HAD FORMED A GRATUITY FUND, WHICH WAS AN IRREVOCABLE TR UST. THUS, THE AMOUNT COULD NOT BE MISUSED BY THE APPELLANT IN ANY CASE. 2. APPLICATION FOR APPROVAL OF SUCH FUND WAS FILED. PB 96. PREMIUM WAS PAID. PB 106. THUS, THERE WAS NO INACTION OR LATCHE S ON THE PART OF THE APPELLANT. 3. THE ID CIT DID NOT GRANT/ DENY APPROVAL. AS PER THE RULE 2 OF PART C OF SCHEDULE IV, THE APPROVAL CANNOT BE REFUSED UNLESS AN OPPORTUNITY IS GIVEN TO THE TRUSTEES OF THAT FUND. 4. IN A DIRECT JUDGMENT IN RAJASTHAN FINANCIAL CORPORATION 66 I TO 193 (JAIPUR TRIB), IT WAS HELD THAT WHEN APPLICATION FOR APPROVAL WAS FIL ED LONG BACK AND NO REPLY WAS RECEIVED FROM THE CIT, A N INFERENCE CAN BE DRAWN THAT THE CIT HAS APPROVED THE GRATUITY FUND. JILA SAHAKARI KENDRIYA BANK MARYADIT ITA NO.307/IND/2015 6 ALSO, SIMILAR PRINCIPLE UPHELD IN CONTEXT OF SECTIO N 12AA, IN CIT VS SOCIETY OF PROMOTION OF EDUCATION ADVENTURE SPORT E TC. 382 ITR 6 (SC) GROUND NO. 4: VARIOUS EXPENSES -RS. 44,16,854 1. IT IS SUBMITTED THAT THE APPELLANT DEBITED AN AMOUN T OF RS. 44.16 LAKHS UNDER 9 HEADS. THE DETAILS OF THESE EXPENSES IS GIV EN AT PB 107. 2. BRANCH-WISE HEAD-WISE DETAILS OF THESE EXPENSES WER E GIVEN. THERE ARE 22 BRANCHES. PB 108. 3. THE LEDGERS OF THE EXPENSES ARE GIVEN PB 109-147. T HESE COULD NOT BE PRODUCED BEFORE ID AO/ CIT(A). VOUCHERS ARE GIVEN O N ILLUSTRATIVE BASIS. 4. THE APPELLANT SUBMITS THAT THE PECULIAR FACTS OF TH E CASE ARE THAT THE DETAILS OF EXPENSES IS VOLUMINOUS AND RELATED TO PE TTY EXPENSES, DETAILS OF WHICH HAD TO COLLECTED FROM 22 BRANCHES. 5. LD CIT(A) HELD THAT THE EVIDENCES TO SUPPORT THE CLAIM WERE NOT FILED, THEREFORE, HE DISALLOWED THE EXPENSES. IT IS SUBMI TTED THAT HAD THE ID CIT(A) DOUBTED THE SAME, HE SHOULD HAVE ALLOWED US AN OPPORTUNITY TO PRODUCE THE ENTIRE BUNCH OF THE VOUCHERS AND EVIDEN CES GIVING SUITABLE TIME. 6. THE APPELLANT SUBMITS THAT THESE DOCUMENTS MAY BE A DMITTED IN THE INTEREST OF JUSTICE. THESE DOCUMENTS ARE NECESSARY FOR THE DISPOSAL OF APPEAL, AND COULD NOT BE SUBMITTED DUE TO PECULIAR FACTS. GROUND NO. 5:NOT ALLOWING SET-OFF OF BROUGHT FORWAR D BUSINESS LOSS RS.12,07,497 THE ID CIT(A) DID NOT ALLOW SET-OFF OF THE BROUGHT FORWARD LOSS OF RS. 12,07,497, HOLDING THAT THE LOSS CLAIMED BY THE APP ELLANT IN A.Y. 2009- JILA SAHAKARI KENDRIYA BANK MARYADIT ITA NO.307/IND/2015 7 10 WAS NOT ALLOWED IN THAT YEAR'S ASSESSMENT. IT IS SUBMITTED THAT THE APPEAL AGAINST THE SAME WA S FILED TO ID CIT(A). AS INFORMED BY THE ASSESSEE, 'THE APPEAL HAS BEEN DISM ISSED BY THE ID CIT(A), AGAINST WHICH NO APPEAL HAS BEEN PREFERRED TO HON'BLE ITAT, TILL DATE. 5. LD. DEPARTMENTAL REPRESENTATIVE VEHEMENTLY ARG UED SUPPORTING THE ORDERS OF BOTH THE LOWER AUTHORITIES . 6. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED T HE RECORDS PLACED BEFORE US AND ALSO CAREFULLY GONE THROUGH TH E DECISION REFERRED AND RELIED BY THE LD. COUNSEL FOR THE ASSE SSEE MENTIONED IN THE WRITTEN SUBMISSIONS. 7. APROPOS GROUND NO.2 REGARDING THE ADDITION O F RS.47,07,153/- ON ACCOUNT OF DISALLOWANCE OF PRO VISION OF CADRE FUND MADE BY THE ASSESSEE IT WAS CONTENDED BEFORE US THAT THE DEPARTMENT OF CO-OPERATIVES FOR DEPUTATION OF STAFF CALLED CADRE STAFF TO THE PRIMARY SOCIETIES. THESE PRIMARY SOC IETIES WORK FOR THE CO-OPERATIVE BANKS. THE APPELLANT BANK HAS PERFORM ED MANY WORKS THROUGH THESE SOCIETIES FOR PROCUREMENT OF GRAINS A ND DISTRIBUTION OF FUNDS TO MANY AGRICULTURISTS. TO PAY SALARY TO T HE CADRE STAFF WORKING FOR PRIMARY SOCIETIES CADRE FUND IS TO BE M ADE. THE ALLEGED AMOUNT OF RS.47,07,153/- IS A PROVISION FOR CADRE F UND WHICH IS JILA SAHAKARI KENDRIYA BANK MARYADIT ITA NO.307/IND/2015 8 CLAIMED TO HAVE BEEN PROVIDED AS PER THE DIRECTIONS OF THE DEPARTMENT OF CO-OPERATIVES DATED 23.1.2003. LD. C IT(A) CONFIRMED THIS DISALLOWANCE BY NOT TREATING THE ALLEGED AMOUN T AS BUSINESS EXPENDITURE OBSERVING AS FOLLOWS; 8. I HAVE CAREFULLY CONSIDERED THE SUBMISSION OF THE A PPELLANT AND FACTS OF THE CASE. ON PERUSAL OF PROFIT & LOSS ACCOUNT AND DETAILS FURNISHED BY THE APPELLANT, IT IS NOTICED THAT THE APPELLANT HAD MADE A CLAIM OF DEDUCTION OF RS.47,07,153/~ON ACCOUNT OF 'PROVISION FOR CADRE FUND.' THE ISSUE INVOLVED IS WHETHER THE EXPENDITURE CLAIM ED BY THE APPELLANT ON ACCOUNT OF CONTRIBUTION TOWARDS SALARY OF THE CA DRE STAFF ON DEPUTATION TO VARIOUS PRIMARY AGRICULTURE CREDIT SO CIETIES WAS INCURRED WHOLLY AND EXCLUSIVELY FOR BUSINESS PURPOSE OF THE APPELLANT. IT IS PERTINENT TO NOTE THAT THESE EMPLOYEES WERE GIVEN O N DEPUTATION TO PRIMARY AGRICULTURE CREDIT SOCIETIES. THEY HAD WORK ED FOR THE BUSINESS OF THE PRIMARY AGRICULTURE CREDIT SOCIETY AND, THUS , THE EXPENDITURE ON THEIR SALARY WAS INCURRED WHOLLY AND EXCLUSIVELY FO R THE BUSINESS OF THE PRIMARY AGRICULTURE CREDIT SOCIETIES ONLY. THE APEX BANK CONTRIBUTED 5 AND THE APPELLANT, DISTRICT COOPERATI VE BANKS WAS TO CONTRIBUTE 20 OF THE CADRE STAFF SALARY JUST TO PROVIDE FINANCIAL ASSIST ANCE TO PRIMARY AGRICULTURE CREDIT SOCIETIES AND IN FACT IT WAS IN THE FORM OF GRANT OR ASSISTANCE. THUS, THE AMOUNT CONTRIBUTED BY THE APP ELLANT WAS NOT AN EXPENDITURE INCURRED WHOLLY AND EXCLUSIVELY FOR THE BUSINESS OF THE APPELLANT BANK. SINCE THE EXPENDITURE HAD NOT BEEN INCURRED WHOLLY AND EXCLUSIVELY FOR THE BUSINESS OF THE APPELLANT-BANK, THE PARTIAL. CONTRIBUTION TOWARDS THE CADRE STAFF SALARY BY THE APPELLANT-BANK WAS ONLY AN ALLOWABLE DEDUCTION. THEREFORE, CONSIDERIN G THE FACTS AND CIRCUMSTANCES OF THE CASE, THE A.O. WAS JUSTIFIED I N HOLDING THAT THE PROVISION FOR CONTRIBUTION TOWARDS CADRE STAFF SALA RY MADE BY THE JILA SAHAKARI KENDRIYA BANK MARYADIT ITA NO.307/IND/2015 9 APPELLANT WAS NOT EXPENDITURE INCURRED WHOLLY AND E XCLUSIVELY FOR THE PURPOSE OF THE BUSINESS OF APPELLANT-BANK AND, THUS , WAS NOT AN ALLOWABLE DEDUCTION U/S 37 OF THE ACT, IT MAY NOT BE OUT OF PLACE TO MENTION THAT THIS PRACTICE OF ASSISTANCE/GRUNT TOW ARDS CADRE SALARY WAS SUBSEQUENTLY DISCONTINUED. HENCE, THE DISALLOWANCE OF RS.47,07,153/- OF PROVISION FOR CADRE FUND MADE BY THE A.O IS CO NFIRMED. 9. LD. COUNSEL FOR THE ASSESSEE HAS CONTENDED THA T THE ISSUE STANDS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE B Y THE DECISION OF CO-ORDINATE BENCH, INDORE IN THE CASE OF KRISHI UPA J MANDI SAMITI 12 ITJ 12 (TRIB. INDORE) WHEREIN IT WAS HELD THAT A NY STATUTORY PAYMENT OR CONTRIBUTION IS ALLOWABLE AS WITHOUT SUC H CONTRIBUTION BUSINESS CANNOT HAVE BEEN DONE. 10. WE ALSO FIND THAT THE CO-ORDINATE BENCH, IND ORE IN THE CASE OF M.P. RAJYA SAHKARI BANK MARYADIT ITA NO.296/IND/ 2015 DATED 14.03.2016 DEALT WITH THE SIMILAR ISSUE WHEREIN TH E ASSESSEE BANK PROVIDED FUNDS TO DISTRICT CENTRAL CO-OPERATIVE BAN KS WHICH IN TURN DIVIDED FUNDS AMONG THE PRIMARY AGRICULTURE CREDIT SOCIETIES (IN SHORT PACS). AS PER THE NOTIFICATION OF DEPARTME NT OF COOPERATIVES DATED 23.1.2003 THE SALARY OF THE EMP LOYEES OF PACS IS TO BE PAID IN THE FOLLOWING TERMS; JILA SAHAKARI KENDRIYA BANK MARYADIT ITA NO.307/IND/2015 10 (I) 75% TO BE BORNE BY PACS (II) 20% TO BE BORNE BY DISTRICT CENTRAL CO-OPERATIVE BA NK (III) 5% TO BE BORNE BY APEX BANK. IN THIS DECISION OF THE TRIBUNAL THE ASSESSEE WAS T HE APEX BANK AND ISSUE IN DISPUTE WAS THE 5% OF THE SALARY PAID TO THE EMPLOYEES OF PACS. THE TRIBUNAL HELD SUCH AMOUNT P AID AS SALARY PAID TO THE EMPLOYEES OF PACS HAS TO BE TREATED AS BUSINESS EXPENDITURE ALLOWABLE/S 37 OF THE ACT. 11. IN THE INSTANT CASE BEFORE US ASSESSEE AS DI STRICT CENTRAL CO- OPERATIVE BANK AND THE ALLEGED AMOUNT OF CONTRIBUTI ON TO THE CADRE FUND RELATES TO 20% OF THE SALARY OF THE EMPLOYEES OF PACS. THIS AMOUNT WAS PAID BY THE ASSESSEE AS PER THE DIRECTIO N OF THE REGISTRAR OF CO-OPERATIVE SOCIETIES DATED 23.1.2003 , AS PER WHICH IT WAS BOUND TO PAY 20% SHARE OF THE SALARY OF THE PAC S. 12. WE, THEREFORE IN THE GIVEN FACTS AND CIRCUMSTA NCES OF THE CASE AND FOLLOWING THE DECISION OF CO-ORDINATE BENCH, IN DORE IN THE CASE OF M.P. RAJYA SAHKARI BANK MARYADIT (SUPRA), SET AS IDE THE FINDING OF LD. CIT(A) AND DELETE THE ADDITION OF RS. 47,07, 153/-AND ALLOW PROVISION FOR CONTRIBUTION TO CADRE FUND AT RS. 47, 07,153/- AS JILA SAHAKARI KENDRIYA BANK MARYADIT ITA NO.307/IND/2015 11 BUSINESS EXPENDITURE U/S 37 OF THE ACT. IN THE RES ULT GROUND NO.2 OF THE ASSESSEES APPEAL STANDS ALLOWED. 13. APROPOS GROUND NO.3 FOR THE DISALLOWANCE OF PR OVISION FOR GRATUITY OF RS.85,00,000/-, WE OBSERVE THAT LD. CIT (A) CONFIRMED THE DISALLOWANCE OBSERVING AS FOLLOWS; (I) IT WAS SUBMITTED THAT THIS PROVISION FOR GRATUI TY WAS MADE BY THE APPELLANT FOR THE PURPOSE OF PAYMENT OF GRATUITY TO ITS EMPLOYEES ON RETIREMENT, WHICH WAS ALLOWABLE AS DEDUCTION U/S 40A(7) OF THE ACT. IT WAS SUBMITTED THAT THE APPELLANT HAD AN ARRANGEMENT WITH LIC OF INDIA FOR MAINTENANCE OF GRATUITY FUND. THE APPELLANT HAD MADE A PROVISION OF RS:85,00,000/- FOR THE CONTRIBUTION TO GRATUITY FOR THE YEAR UNDER CONSIDERATION AND HAD ACTUALLY PAID RS.75,00,000/- ON 25.09.2010 AND RS.LO,OO,OOO/- ON 27.09.2010 TO LIC OF INDIA, BEFORE THE DUE DATE OF FILING OF INCOME-TAX RETURN. IT WAS PRAYED THAT THE ADDITI ON OF RS.85,00,000/- ON ACCOUNT OF PROVISION FOR GRATUITY MAY BE DELETED . 14. (II) AT THIS STAGE, THE APPELLANT WAS ASKED TO FURN ISH THE EVIDENCE AS TO WHETHER THE GRATUITY FUND WAS APPROVED BY COMMISSIO NER OF INCOME TAX OR NOT. THE APPELLANT SUBMITTED IN THIS REGARD THAT ON ENQUIRY FROM LIC OF INDIA, IT WAS INFORMED THAT AN APPLICATION ALONG WITH REQUIRED DOCUMENTS HAD BEEN SUBMITTED BY THEM TO THE INCOME TAX COMMISSIONER BUT THERE WAS NO COMMUNICATION. IT WAS SUBMITTED THAT THERE WAS NO OBJECTION OR ENQUIRY RECEIVED FROM THE DEPARTMENT. IT WAS CONTENDED THAT AS PER CLAUSE 4 OF POINT NO. 2 OF PA RT C OF THE 4TH SCHEDULE OF INCOME TAX ACT, UNDER WHICH GRATUITY SC HEME IS APPROVED, PROVIDES THAT THE CHIEF COMMISSIONER OR COMMISSIONE R SHALL NEITHER REFUSE NOR WITHDRAW APPROVAL TO ANY GRATUITY FUND U NLESS HE HAD GIVEN JILA SAHAKARI KENDRIYA BANK MARYADIT ITA NO.307/IND/2015 12 THE TRUSTEES OF THAT FUND A REASONABLE OPPORTUNITY OF BEING HEARD IN THE MATTER. IT WAS CONTENDED THAT SINCE THE APPELLANT A ND LIC HAD NEITHER RECEIVED ANY LETTER REGARDING REFUSAL OF THE APPLIC ATION NOR RECEIVED ANY ENQUIRY OR OBJECTION REGARDING APPLICATION FOR APPR OVAL SUBMITTED, IT MEANS THE CLAIM OF GRATUITY IS APPROVED. IT WAS, TH US, PRAYED THAT THE ADDITION OF RS.85,O0,OOO/- ON ACCOUNT OF PROVISION FOR GRATUITY MAY BE ALLOWED AS DEDUCTION. 15. (III) I HAVE 'ARC FULLY CONSIDERED THE SUBM ISSION OF THE APPELLANT A ,D FACTS OF THE CASE. THE APPELLANT HAS MADE A PROVISI ON FOR GRATUITY OF RS.85,OO,OOO/-. IT WOULD BE FRUITFUL TO REPRODUCE THE PROVISION OF U/S 4OA(7) OF THE ACT AS UNDER: - 16. 'EXPENSES OR PAYMENTS NOT DEDUCTIBLE IN CERTAIN CIR CUMSTANCES. 17. 40A. (7) (A) SUBJECT TO THE PROVISIONS OF CLAUSE (B), NO DED UCTION SHALL BE ALLOWED IN RESPECT OF ANY PROVISION (WHETHER CALLED A-T SUCH OR BY ANY OTHER NAME) MADE BY THE ASSESSEE FOR THE PAYMENT OF GRATUITY TO HIS EMPLOYEES ON THEIR RETIREMENT OR ON TERMINATION OF THEIR EMPLOYMENT FOR ANY REASON. 18. (B) NOTHING IN CLAUSE (A) SHALL APPLY IN RELATION T O ANY PROVISION MADE BY THE ASSESSEE FOR THE PURPOSE OF PAYMENT OF A SUM BY WAY OF ANY CONTRIBUTION TOWARDS AN APPROVED GRATUITY FUND, OR FOR THE PURPOSE OF PAYMENT OF ANY GRATUITY, THAT HAS BECOME PAYABLE DU RING THE PREVIOUS YEAR. ' 19. FROM THE ABOVE, IT CAN BE SEEN THAT SECTION 40A(7) OF THE ACT CLEARLY PROVIDES THAT NO DEDUCTION SHALL BE ALLOWED IN RESP ECT OF ANY PROVISION MADE BY THE ASSESSEE FOR PAYMENT OF GRATUITY TO ITS EMPLOYEE ON RETIREMENT. FURTHER, CLAUSE (B) PROVIDES THAT ANY P ROVISION MADE BY THE ASSESSEE FOR THE PURPOSE OF PAYMENT OF SUM BY WAY O F ANY CONTRIBUTION TOWARDS AN APPROVED GRATUITY FUND OR FOR THE PURPOS E OF PAYMENT OF ANY GRATUITY THAT HAS BECOME PAYABLE DURING THE PREVIOU S YEAR CAN BE ALLOWED AS DEDUCTION. IN THE INSTANT CASE, THE APPE LLANT HAS MADE A PROVISION FOR GRATUITY AND, THEREFORE, THE SAME WAS DISALLOWABLE U/S JILA SAHAKARI KENDRIYA BANK MARYADIT ITA NO.307/IND/2015 13 40A(7) OF THE ACT. THE SAME IS ALSO NOT ALLOWABLE A S DEDUCTION UNDER CLAUSE (B) OF SECTION 40A(7) OF THE ACT BECAUSE. TH E GRATUITY FUND WAS NOT APPROVED. BY THE COMMISSIONER OF INCOME TAX AND, HE NCE, IT WAS AN UNAPPROVED. THE APPELLANT FAILED TO ADDUCE ANY EVID ENCE TO DEMONSTRATE THAT THE GRATUITY FUND TOWARDS WHICH THE APPELLANT HAD CONTRIBUTED FUNDS, WAS DULY APPROVED BY THE CHIEF COMMISSIONER OR COMMISSIONER OF INCOME TAX. BY MERELY FILING AN APPLICATION FOR APPROVAL DOES NOT TANTAMOUNT THAT APPROVAL HAS BEEN GRANTED BY THE COMMISSIONER OF INCOME TAX UNDER THE INCOME TAX ET. HENCE, THE DISA LLOWANCE OF PROVISION FOR GRATUITY OF RS.85.00,OOO/- MADE BY THE A.O. IS CONFIRMED. 20. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE GRATUITY FUND WAS FORMED WITH THE HELP OF LIC OF INDIA. APPLICAT ION FOR APPLYING OF SUCH FUND WAS FILED AND PREMIUM WAS PAID. HOWEVER LD. COMMISSIONER OF INCOME TAX DID NOT GRANT/DENY THE A PPROVAL. THIS APPLICATION WAS SUBMITTED ON 29.07.2011. AS PER RU LE 2 OF PART C OF SCHEDULE IV OF THE INCOME TAX ACT SUCH APPROVAL CANNOT BE REFUSED UNLESS AN OPPORTUNITY IS GIVEN TO THE TRUST EE OF THAT FUND. IN SIMILAR SUCH CIRCUMSTANCES CO-0RDINATE BENCH, JA IPUR TRIBUNAL IN THE CASE OF RAJASTHAN FINANCIAL CORPORATION (199 8) 66 ITD 193 (JAIPUR) HELD THAT SUCH APPLICATIONS FILED LONG BAC K WHICH HAS NOT BEEN REPLIED BY THE COMMISSIONER OF INCOME TAX GRAN TING THE APPROVAL OR DENYING THE APPROVAL AND NO OPPORTUNITY HAS BEEN GRANTED TO THE TRUSTEE, INFERENCE CAN BE DRAWN THAT THE CIT JILA SAHAKARI KENDRIYA BANK MARYADIT ITA NO.307/IND/2015 14 APPROVED THE GRATUITY FUND. THE RELEVANT EXTRACT O F THE ORDER OF ITAT, JAIPUR IN THE CASE OF RAJASTHAN FINANCIAL COR PORATION (SUPRA) IS REPRODUCED BELOW; 11. WE HAVE HEARD THE RIVAL SUBMISSIONS AND CONSIDERED THEM CAREFULLY. WE HAVE ALSO PERUSED THE MATERIAL ON RECORD AND THE RATIO OF DECISION CITED BY THE ID. D/R. ONE POINT WHICH WE NOTED THAT THE I D. COUNSEL STATED THAT THE ASSESSEE APPLIED FOR APPROVAL AS PER INCOME-TAX RULES BEFORE THE CIT WHO HAS NOT PASSED ANY ORDER TILL DATE. IT IS VERY SURPRISING THAT EVEN AFTER SUCH A LONG TIME HAVING BEEN ELAPSED, NO ACTION HAS BEEN TAKEN BY THE CIT IN SPITE OF SEVERAL REMINDERS BY THE ASSESSEE. WE A LSO NOTICE THAT SIMILAR DEDUCTIONS WERE DISALLOWED FOR A.Y. 1994-95 AGAINST WHICH THE ASSESSEE PREFERRED FIRST APPEAL AND CIT(A) ALLOWED THE APPEA L OF THE ASSESSEE BY DIRECTING THAT THE DEDUCTION SHOULD BE ALLOWED. AS PER THE INFORMATION, THE DEPARTMENT HAS NOT FILED ANY SECOND APPEAL AGAINST THE FINDINGS OF THE CIT(A). IT MEANS THE DEPARTMENT HAS ACCEPTED THE CO NTENTION OF THE ASSESSEE. THE RATIO OF THE DECISION IN CASE OF SANG HI OXYGEN CO. (SUPRA) WHEREIN IT WAS HELD THAT THE ASSESSEE HAD NOT PAID ANY SUM TOWARDS AN APPROVED GRATUITY FUND CREATED BY HIM FOR THE EXCLU SIVE BENEFIT OF HIS EMPLOYEES UNDER IRREVOCABLE TRUST AND, THEREFORE, A DEDUCTION UNDER SECTION 36(1)(V) OR UNDER SECTION 28 COULD NOT BE A LLOWED. SIMILAR IS THE RATIO OF DECISION IN CASE OF SYNBIOTICS LTD. (SUPRA ), WHEREIN THE GUJARAT HIGH COURT HAS HELD THAT 'EVEN IF NO PROVISION IS M ADE BY THE ASSESSEE, SECTION 40A(7) OF THE INCOME-TAX ACT, 1961, WILL AP PLY AND UNLESS THE CONDITIONS LAID DOWN THEREIN ARE SATISFIED, THE GRA TUITY AMOUNT PAID TO EMPLOYEES WILL NOT BE DEDUCTIBLE.' 12. AFTER GOING THROUGH THE RATIO OF DECISIONS, WE FEEL THAT THE FACTS OF THE CASE ARE DISTINGUISHABLE AS COMPARED TO THE FACTS O F THE CASE BEFORE US. IN THE INSTANT CASE, THE ASSESSEE PAID AMOUNT IN GRATU ITY FUND AND THE JILA SAHAKARI KENDRIYA BANK MARYADIT ITA NO.307/IND/2015 15 APPLICATION FOR APPROVAL OF THE GRATUITY FUND WAS F ILED LONG BACK AND NO REPLY WHATSOEVER HAS BEEN GIVEN BY THE CIT TILL DAT E. IN OUR CONSIDERED VIEW THE ONLY INFERENCE CAN BE DRAWN THAT THE CL'T APPROVED THE GRATUITY FUND AS HE HAS NOT REJECTED THE APPLICATION TILL DA TE. IN VIEW OF THESE FACTS AND CIRCUMSTANCES WE HOLD THAT THE AMOUNT DEPOSITED BY THE ASSESSEE IS IN APPROVED GRATUITY FUND AND, THEREFORE, THE DEDUC TION IS ALLOWABLE. THE AO IS DIRECTED TO ALLOW DEDUCTION TO THE ASSESSEE. THIS GROUND OF THE ASSESSEE IS ALLOWED. 21. WE THEREFORE IN THE GIVEN FACTS AND CIRCUMSTA NCES OF THE CASE AND SINCE NO CONTRARY MATERIAL HAS BEEN FILED BY TH E LD. DEPARTMENTAL REPRESENTATIVE TO REBUT THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE ARE INCLINED TO RESPECTFUL LY FOLLOW THE JUDGMENT OF CO-ORDINATE BENCH, JAIPUR AND DELETE TH E ADDITION OF RS.85,00,000/- ON ACCOUNT OF PROVISION FOR GRATUIT Y. THE FINDING OF LD. CIT(A) IS SET ASIDE AND GROUND NO.3 RAISED BY THE ASSESSEE IS ALLOWED. 22. APROPOS GROUND NO.4 RELATING TO DISALLOWANCE O F VARIOUS EXPENSES OF RS.44,16,854/-, LD. CIT(A) CONFIRMED IT DECIDING AS FOLLOWS; (I) IN APPELLATE PROCEEDINGS, IT WAS SUBMITTED THAT THE A.O. HAD ADDED RS.44,16,854/ IN THE ASSESSMENT ORDER AS DISALLOWANCE OF 'OTHER E XPENSES' BUT ON PERUSAL OF PROFIT & LOSS ACCOUNT, THERE WAS NO SUCH OTHER JILA SAHAKARI KENDRIYA BANK MARYADIT ITA NO.307/IND/2015 16 EXPENSES OF RS.44,16,854/- CLAIMED BY THE APPELLANT. IT WAS, THUS, PRAYED THAT THE ADDITION MADE BY THE LD. A.O. ON ACCOUNT O F 'OTHER EXPENSES WHICH WERE NOT CLAIMED AS DEDUCTION, MAY PLEASE BE DELETED. (II) THE A.O. WAS ASKED TO VERIFY THE FACT AND SUBMIT FACTUAL REPORT IN THIS REGARD. THE A.O IN HE REMAND REPORT, SUBMITTED IN REGARD TO DISALLOWANCE OF 'OTHER EXPENSES' AS UNDER: - '3.2 DISALLOWANCE F OTHER EXPENSES:- DURING THE ASSESSMENT PROCEEDINGS, VIDE ORDER SHEET ENTRY DATED 15.02.2013, THE AR OF 'HE ASSESSEE WAS REQUIRED TO FURNISH THE BILLS/VOUCHERS OF OTHER EXPENSES. THE ASSESSEE DIDN 'T FURNISH ANY BILL/VOUCHER IN SUPPORT OF HIS CLAIM. THEREFORE, TH E AO DISALLOWED THE EXPENSES AND ADDED THE SAME TO THE TOTAL INCOME. DU RING THE APPELLATE PROCEEDINGS, THE ASSESSEE HAS NOT CLAIMED ANY AMOUN T OF RS.44, 16,854/- IN ITS P&L ACCOUNT. THE SUBMISSION OF THE ASSESSEE IS FACTUALLY INCORRE CT BECAUSE IN THE P&L ACCOUNT APPEARING IN ITS ANNUAL REPORT (COPY ENCLOS ED), AN AMOUNT OF RS. 44,16,854/- IS DEBITED ON ACCOUNT OF OTHER EXPENSES. DURING THE REMAND PROCEEDINGS, THE AR OF THE ASSESSEE, SHRI PIYUSH AG RAWAL WAS CONFRONTED WITH THE ISSUE AND VIDE ORDER SHEET ENTRY DATED 27. 01.2015, HE WAS REQUIRED TO FURNISH THE BILLS/VOUCHERS OF THE SAID EXPENDITURE. NEXT HEARING WAS FIXED ON 02.02.2015. HOWEVER, THE ASSESSEE FAIL ED TO PRODUCE ANY BILL/VOUCHER FOR VERIFICATION. THEREFORE, THE ADDIT ION MADE BY THE AO DESERVES TO BE CONFIRMED. ' (III) IN THE REJOINDER, THE AUTHORISED REPRESENTAT IVE SIMPLY STATED AS UNDER: - 'IN RESPECT OF OTHER EXPENSES OF RS,44, 16,854/-, THE APPELLANT HAS SUBMITTED THE LIST OF OTHER EXPENSES WHICH COMPRISE S OF 9 HEADS OF JILA SAHAKARI KENDRIYA BANK MARYADIT ITA NO.307/IND/2015 17 DIFFERENT TYPES OF EXPENSES. THE COPY OF WHICH IS A LSO SUBMITTED HEREWITH. AT THE TIME OF ASSESSMENT PROCEEDINGS THE THEN COU NSEL HAS SUBMITTED THE ANNUAL REPORT WHICH WAS IN PRINTED FORM IN WHICH THE GROUP OF 9 HEADS OF EXPENSES HAD SHOWN IN THE SINGLE HEAD AS OTHER EXP ENSES. IT IS SUBMITTED HEREWITH THE BANK HAS 22 BRANCHES AND AUDITED BALANCE SHEET IS MADE FOR THE WHOLE BANK ON COMPILATION OF THE FIGURES OF THE SE 22 BRANCHES. THE COPIES OF LEDGER ACCOUNTS AND BILLS/VOUCHERS ARE RO T PRACTICALLY POSSIBLE 10 PRODUCE SINCE THESE ARE KEPT AT THE DIFFERENT BRANC HES. HOWEVER, THE ACCOUNTS OF THE BANK IS AUDITED BY THE CONCURRENT A UDITORS, STATUTORY AUDITOR AND AUDITORS OF CO-OPERATIVE DEPARTMENTS, SO THE FIGURES SHOWN IN THE AUDITED BALANCE SHEET AND PROFIT AND LOSS ACCOU NT IS TOTALLY GENUINE AND SUPPORTED BY THE PROPER BILLS AND, VOUCHERS. SI R IN VIEW OF THE NATURE OF THE STATUS OF THE APPELLANT IT IS HUMBLY REQUEST ED FROM YOUR HONOUR PLEASE ALLOW THESE EXPENSES. . (IV) I HAVE CAREFULLY CONSIDERED THE SUBMISSION OF THE APPELLANT AND FACTS OF THE CASE. IT IS' AN ADMITTED FACT THAT THE APPEL LANT HAD MADE CLAIM OF 'OTHER EXPENSES' AT RS,44,16,854/- IN ITS PROFIT & LOSS ACCOUNT. THE APPELLANT FAILED TO EXPLAIN THE NATURE AND DETAILS OF THESE EXPENSES AND ALSO TO FURNISH ANY BILLS & VOUCHERS OF THE SAID EXPENDITURE DURING ASSESSMENT PROCEEDINGS OR DURING REMAND REPORT PROC EEDINGS BEFORE THE ASSESSING OFFICER AND ALSO FAILED TO PRODUCE ANY EV IDENCE IN THE REJOINDER. IT MAY BE NOTED THAT ONUS WAS UPON THE A PPELLANT TO PROVE WITH DOCUMENTARY EVIDENCE THAT THESE EXPENSES WERE INCURRED WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF THE BUSINESS OF THE APPELLANT-BANK. SINCE THE APPELLANT FAILED TO FURNISH THE NATURE AN D DETAILS OF OTHER EXPENSES DEBITED AND ALSO FAILED TO FURNISH ANY EVI DENCE IN THE FORM OF BILLS & VOUCHERS IN REGARD TO THESE EXPENSES CLAIMED, A.O. WAS JUSTIFIED IN DISALLOWING THE SAME. HENCE, THE DISALLOWANCE OF OTHER EXPENSES OF RS.44,16,854/- IS CONFIRMED. JILA SAHAKARI KENDRIYA BANK MARYADIT ITA NO.307/IND/2015 18 23. WE OBSERVE THAT THIS DISALLOWANCE WERE MADE FOR WANT OF NECESSARY DETAILS OF EXPENDITURE AND THE ASSESSEE F AILED TO SUBMIT THE SAME BEFORE THE LOWER AUTHORITIES. REQUEST HAS BEEN MADE BEFORE US TO PROVIDE ONE MORE OPPORTUNITY TO EXPLAI N THE GENUINENESS OF THE EXPENSES. LD. DEPARTMENTAL REPR ESENTATIVE IS FAIR ENOUGH IN NOT OPPOSING THIS REQUEST. WE THERE FORE IN THE INTEREST OF JUSTICE AND BEING FAIR TO BOTH THE PART IES, SET ASIDE THE ISSUE RAISED IN GROUND NO.4 AT RS.44,16,854/- TO TH E FILE OF LD. CIT(A) WHO SHALL CALL FOR REMAND REPORT FROM THE LD . A.O BEFORE WHOM THE ASSESSEE SHALL PLACE COMPLETE DETAILS WITH THE EVIDENCE OF PAYMENT AND GENUINENESS OF EXPENSES. LD. CIT(A) ON RECEIVING THE DETAILED REMAND REPORT FROM THE LD. A.O MAY DECIDE THE ISSUE AS PER THE PROVISIONS OF LAW AFTER PROVIDING THE ASSES SEE AN OPPORTUNITY OF BEING HEARD. ACCORDINGLY GROUND NO. 4 OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. 24. APROPOS GROUND NO.5 THROUGH WHICH THE ASSESSE E HAS CHALLENGED THE FINDING OF LD. CIT(A) FOR NOT ALLOWI NG THE BROUGHT FORWARD BUSINESS LOSS OF RS.12,07,497/-, LD. CIT(A ) HAS DECLINED THE CLAIM OBSERVING AS FOLLOWS; 5.1 THIS GROUND IS THAT THE A.O. WAS NOT JUSTIFIED IN NOT ALLOWING SETOFF JILA SAHAKARI KENDRIYA BANK MARYADIT ITA NO.307/IND/2015 19 OF BROUGHT FORWARD BUSINESS LOSS OF RS.L2,07,497/- AS CLAIMED BY THE APPELLANT. 5.2 THE A.O NOTICED THAT THE APPELLANT HAD DEDUCT ED RS.12,07,497/- BEING BROUGHT FORWARD BUSINESS LOSS FROM THE TOTAL INCOME OF THE ASSESSMENT YEAR UNDER CONSIDERATION. HOWEVER, FROM THE DETAILS ON RECORD, IT WAS NOTICED THAT THE INCOME OF THE' APPE LLANT WAS ASSESSED AT RS.4,33,02,094/- IN THE IMMEDIATE PRECEDING A.Y 200 9-10 AND, THUS, NO BROUGHT FORWARD LOSS WAS ALLOWABLE TO THE APPELLANT -BANK. ACCORDINGLY, THE A.O DID NOT ALLOW HE SET OFF OF BROUGHT FORWARD BUSINES S LOSS OF 12,07,497/- CLAIMED BY THE APPELLANT., 5.3 IN APPELLATE PROCEEDINGS, IT WAS SUBMITTED THAT IN THE YEAR PRECEDING THE YEAR UNDER CONSIDERATION, THE APPELLANT HAD CLA IMED LOSS OF RS.12,07,497/- IN THE INCOME TAX RETURN FURNISHED AND ACCORDINGLY CLAIMED SETOFF OF THIS BROUGHT FORWARD LOSS IN THE YEAR UNDER CONSIDERATION. THE A.O. DID NOT ALLOW SETOFF OF THE LOSS AS THE INCOME FOR IMMEDIATE PRECEDING A.Y. 2009-10 WAS ASSESSED AT RSA,33,02,974/- BY THE THEN A_O. IT WAS CONTENDED THAT THE APPELLANT W AS NOT SATISFIED WITH THE ASSESSMENT ORDER OF THAT YEAR AND THE APPELLANT 'S APPEAL IS PENDING. THEREFORE, THE A.O MAY BE DIRECTED TO ALLOW THE SETOFF OF BROUGHT FORW ARD BUSINESS LOSS OF RS.12,07,497/- AS CLAIMED BY THE APPELLANT. 5.4 I HAVE CONSIDERED THE SUBMISSION OF THE APPELLANT A ND FACTS OF THE CASE. THE APPELLANT MADE CLAIM OF SETOFF OF BROUGHT FORWARD LOSS OF RS.12,07,497/- AS PER THE RETURN OF INCOME FURNISHED BY IT IN EARL IER YEAR. BUT AS MENTIONED BY THE A.O. IN THE ASSESSMENT ORDE R, THE ASSESSMENT FOR IMMEDIATE PRECEDING A. Y. 2009-10 WAS COMPLETED DETERMINING TAXABLE INCOME OF RS.4,33,02,974/- AND, THUS, THERE WAS NO BROUGHT FORWARD BUSINESS LOSS AVAILABLE AS PER RECORDS OF T HE ASSESSING OFFICER. EVEN IF THE APPELLANT HAD FILED AN APPEAL AGAINST T HE ASSESSMENT ORDER OF EARLIER A.Y. 2009-10, THE A.O. CANNOT ALLOW SETOFF OF BROUGHT FORWARD LOSS JILA SAHAKARI KENDRIYA BANK MARYADIT ITA NO.307/IND/2015 20 AS CLAIMED BY THE APPELLANT, WHICH WERE NOT IN ACCO RDANCE WITH THE ASSESSMENT OF THE EARLIER YEARS. HENCE, THE A.O. WA S JUSTIFIED IN NOT ALLOWING SETOFF OF BROUGHT FORWARD LOSS OF RS.12,09,497/- CLAIMED BY THE APPELLANT. HENCE, THIS GROUND OF APPEAL IS REJECTED . 25. LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE BROUGHT FORWARD LOSSES RELATES TO ASSESSMENT YEAR 2009-10. VARIOUS ADDITIONS WERE MADE BY THE LD. A.O IN THE ASSESSMEN T PROCEEDINGS U/S 143(3) OF THE ACT AND THE ASSESSEE HAS CHALLENG ED THE ADDITIONS BEFORE THE LD. CIT(A) WHO HAS STILL NOT DECIDED THE APPEAL. THE OUTCOME OF THE APPEALS FOR ASSESSMENT YEAR 2009-10 PENDING BEFORE THE LD. CIT(A) SHALL PAVE THE WAY FOR THE AD JUDICATION OF GROUND NO.5 AND THEREFORE NECESSARY DIRECTION MAY B E GIVEN TO THE LD. A.O. 26. LD. DEPARTMENTAL REPRESENTATIVE DID NOT OPPOSE TO THIS REQUEST. 27. WE THEREFORE IN THE GIVEN FACTS AND CIRCUMSTANC ES OF THE CASE AND KNOWING THE FACT THAT THE BROUGHT FORWARD LOSSE S WAS NOT ALLOWED ON ACCOUNT OF THE ASSESSEES APPEAL FOR A.Y . 2009-10 PENDING BEFORE LD. CIT(A). THIS GROUND HAVE ITS NEX US WITH THE PENDING ISSUE WITH LD. CIT(A). WE THUS SET ASIDE T HIS ISSUE OF JILA SAHAKARI KENDRIYA BANK MARYADIT ITA NO.307/IND/2015 21 ADDITION OF RS.12,07,497/- TO THE FILE OF LD. A.O W HO SHALL DECIDE ONCE LD. CIT(A) PASSES THE APPELLATE ORDER FOR ASSE SSMENT YEAR 2009-10. NEEDLESS TO MENTION THAT PROPER OPPORTUNIT Y OF BEING HEARD SHOULD BE PROVIDED TO THE ASSESSEE. THUS GRO UND NO.5 OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. 28. IN THE RESULT THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED FOR STATISTICAL PURPOSE. THE ORDER PRONOUNCED IN THE OPEN COURT ON 24.10.201 9. SD/- SD/- ( KUL BHARAT) (MANISH BORAD) JUDICIAL MEMBER ACCOUNTANT MEMBER / DATED : 24 OCTOBER, 2019 /DEV COPY TO: THE APPELLANT/RESPONDENT/CIT CONCERNED/CIT (A) CONCERNED/ DR, ITAT, INDORE/GUARD FILE. BY ORDER, ASSTT.REGISTRAR, I.T.A.T., INDORE