JITENDRA J MEHTA, MUMBAI V. DCIT CC 8(1), MUMBAI

ITA 3103/MUM/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0838 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2010-2011
• Appeal Filed On: 28-04-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAJESH KUMAR MISHRA
• Section: 143(3); 80G; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH J , MUMBAI BEFORE SHRI G.S. PANNU , VICE PRESIDENT AND SHRI C.N. PRASAD, JUDICIAL MEMBER ITA NO . 3103 /MUM/201 7 (A.Y: 2010 - 11) JITENDRA J MEHTA 1401, RAHEJA CENTRE, NARIMAN POINT, MUMBAI 400 020 PAN: AAPPM 2381 K V . D .C.I.T , CENTRAL CIRCLE 8(1 ) AAYAKAR BHAVAN, M.K. ROAD, MUMBAI - 400 020 (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI ANUJ KISNADWALA DEPARTMENT BY : SHRI RAJESH KUMAR MISHRA DATE OF HEARING : 04.09.2018 DATE OF PRONOUNCEMENT : 30 . 11 .2018 O R D E R PER C. N. PRASAD (JM) 1. THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - 50, MUMBAI [HEREINAFTER IN SHORT LD.CIT(A)] DATED 31.01.2017 FOR THE ASSESSMENT YEAR 2010 - 11 IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER IN NOT GRANTING THE DEDUCTION U/S. 80G OF THE ACT. 2. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE COULD NOT PROVIDE THE RECEIPTS FOR DONATIONS AS THEY WERE NOT TRACEABLE 2 ITA NO.3103/MUM/2017 (A.Y: 2010 - 11) JITENDRA J MEHTA AND SINCE THE RECE IPTS ARE NOW AVAILABLE IT IS PLEADED THAT THE MATTER MAY BE RESTORED TO THE FILE OF ASSESSING OFFICER TO CONSIDER THE CLAIM OF THE ASSESSEE. 3. LD. DR STRONGLY OPPOSED. IT IS FURTHER SUBMITTED BY LD. DR THAT THE ASSESSEE FILED APPEAL AGAINST NOT GRANTING OF DEDUCTION U/S. 80G OF THE ACT AND PART RELIEF WAS GRANTED BY THE LD.CIT(A) AND CONSEQUENTIAL ORDER WAS ALSO PASSED GIVING EFFECT TO THE LD.CIT(A) ORDER. IT IS SUBMITTED THAT THE ASSESSEE PREFERRED AN APPEAL AGAINST AN ORDER PASSED U/S. 154 OF THE ACT REJECTING THE CLAIM FOR DEDUCTION OF .7,55,000/ - U/S. 80G OF THE ACT WHICH WAS CONFIRMED BY LD.CIT(A), SINCE THE CLAIM WAS SUBJECT MATTER OF APPEAL IN ORIGINAL PROCEEDINGS. 4. WE HAVE HEARD THE RIVAL SUBMIS SIONS, PERUSED THE ORDERS OF THE AUTHORITIES BELOW. THE ASSESSEE FILED APPEAL AGAINST ORDER PASSED U/S. 154 OF THE ACT IN REJECTING T HE CLAIM FOR DEDUCTION U/S. 80G OF THE ACT. IN THIS CASE ASSESSEE ORIGINALLY CLAIMED DEDUCTION U/S. 80G OF THE ACT AT .2 0,16,806/ - AND THE ASSESSMENT WAS COMPLETED U/S. 143(3) R.W.S. 153(A) ON 30.03.2013, IN WHICH THE CLAIM OF THE ASSESSEE WAS NOT CONSIDERED. AN APPEAL WAS FILED AGAINST THIS ORDER AND A PETITION FOR RECTIFICATION U/S.154 WAS ALSO FILED BEFORE THE ASSESSING OFFICER. IN THE APPELLATE PROCEEDINGS THE LD.CIT(A) CALLED FOR REMAND REPORT AND THE ASSESSING OFFICER REPORTED THAT AN ORDER U/S.154 WAS PASSED ON 3 ITA NO.3103/MUM/2017 (A.Y: 2010 - 11) JITENDRA J MEHTA 10.12.2013 MODIFYING THE ASSESSMENT ORDER RESTRICTING THE CLAIM FOR DEDUCTION U/S. 80G TO .8,39,056/ - OUT OF CLAIM FOR .20,16,806/ FOR WANT OF DONATION RECEIPTS AND CERTIFICATES U/S. 80G OF THE ACT, THEREBY THE ASSESSING OFFICER ALLOWED .11,77,750/ - U/S. 80G OF THE ACT. 5. AT THIS STAG E THE ASSESSEE FILED ONE MORE RECTIFICATION PETITION U/S.154 ON 03.01.2014 S UBMITTING DONATION RECEIPTS FOR .15,00,000/ - FROM D .Y. PATE L SPORTS ACADEMY AND REQUESTED TO MODIFY THE ORDER DATED 10.12.2013 PASSED U/S. 154 RESTRICTING THE DEDUCTION U/S. 80G TO . 8,39,056/ - . APPELLATE ORDER WAS PASSED ON 20.01.2014 RESTRICTING THE CLAIM FOR DEDUCTION U/S. 80G OF THE ACT TO .8,39,056/ - BASED ON THE REMAND REPORT. CONSEQUENTIAL ORDER WAS ALSO PASSED ON 03.07.2014 GIVING EFFECT TO THE LD.CIT(A) ORDER. THE RECTIFICATION PETITIO N FILED BY THE ASSESSEE ON 03.01.2014 WAS REJECTED BY THE ASSESSING OFFICER ON 20.01.2015 OBSERVING THAT THE LD.CIT(A) BY ORDER DATED 20.01.2014 CONFIRMED THE ADDITION OF .8,39,056/ - IN RESPECT OF DEDUCTION U/S. 80G SINCE THE CLAIM OF THE ASSESSEE WAS REJ ECTED FOR WANT OF EVIDENCES. 6. THE LD.CIT(A) OBSERVED THAT SINCE THE CLAIM OF DEDUCTION U/S. 80G OF THE ACT HAS BEEN SUBJECT MATTER OF APPEAL , THE ASSESSING OFFICER IS JUSTIFIED IN REJECTING THE CLAIM OF THE ASSESSEE IN VIEW OF THE PROVISIONS OF SECTION 154 ( 1A) OF THE ACT. FOR READY REFERENCE , WE EXTRACT THE PROVISIONS OF SECTION 154(1A) WHICH READ AS UNDER: - 4 ITA NO.3103/MUM/2017 (A.Y: 2010 - 11) JITENDRA J MEHTA (1A) WHERE ANY MATTER HAS BEEN CONSIDERED AND DECIDED IN ANY PROCEEDING BY WAY OF APPEAL OR REVISION RELATION TO AN ORDER REFERRED TO IN SUB - SECTION (1), THE AUTHORITY PASSING SUCH ORDER MAY, NOTWITHSTANDING ANYTHING CONTAINED IN ANY LAW FOR THE TIME BEING IN FORCE, AMEND THE ORDER UNDER THAT SUB - SECTION IN RELATION TO ANY MATTER OTHER THAN THE MATTER WHICH HAS BEEN SO CONSIDERED AND DECIDED. 7. AS COULD BE OBSERVED FROM THE PROVISIONS OF SUB SECTION (1A) THE ASSESSING OFFICER CAN AMEND ANY ORDER UNDER S UB SECTION ( 1 ) OTHER THAN THE MATTER WHICH HAS BE E N CONSIDERED AND DECIDED IN ANY PROCEEDINGS BY WAY OF APPEAL OR REVISION. IN THE ASSESSEE S CASE SINCE THE LD.CIT(A) CONSIDERED AND DECIDED THE ISSUE ON DEDUCTION U/S. 80G OF THE ACT, IT IS THE SUBJECT MATTER OF APPEAL PROCEEDINGS BEFORE HIM AND T HEREFORE THE ASSESSING OFFICER IS PRECLUDED FROM AMENDING THE ORDERS AND GIVING RELIEF TO THE ASSESSEE IN RESPEC T OF THE AMOUNTS WHICH WERE ALREADY SUBJECT MATTER BEFORE THE LD.CIT(A). THUS , WE DO NOT SEE ANY INFIRMITY IN THE ORDER PASSED BY THE LD.CIT(A). HENCE THE GROUNDS OF APPEAL OF THE ASSESSEE ARE DISMISSED. 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISSED . OR DER PRONOUNCED IN THE OPEN COURT ON THE 30 TH NOVEMBER , 2018 SD/ - SD/ - ( G.S. PANNU ) (C.N. PRASAD) VICE PRESIDENT JUDICIAL MEMBER MUMBAI / DATED 30 / 11 / 2018 GIRIDHAR , S R. PS 5 ITA NO.3103/MUM/2017 (A.Y: 2010 - 11) JITENDRA J MEHTA COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY// BY ORDER (ASSTT. REGISTRAR) ITAT, MUM