The ACIT, Aluva V. The Idukki District Co-op Bank Ltd, Idukki

ITA 397/COCH/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 96807 (ITAT-COCHIN)
• Duration Of Justice: 5 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-12-2015
• Appeal Filed By: Department
• Bench Allotted: DB
• Next Hearing Date: 10-12-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 09-07-2015
• Court: TRIBUNAL
• Department Lawyers: K P GOPAKUAMR
• Assessee Lawyers: M K KURUVILLA
• Keywords: Opportunity of being heard; Additional evidence
• Section: 43B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH C OCHIN BEFORE S/SHRI B.P. JAIN, AM AND GEORGE GEOR GE K., JM I.T.A. NO.397/COCH/2015 ASSESSMENT YEAR : 2008-09 THE ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE-1, ALUVA. VS. THE IDUKKI DISTRICT CO-OPERATIVE BANK LTD., IDUKKI COLONY P.O., IDUKKI. [PAN:AAAAT 7223M] (REVENUE -APPELLANT) (ASSESSE RESPONDENT) REVENUE BY SHRI K.P. GOPAKUAMR, SR. DR ASSESSEE BY SHRI M.K. KURUVILLA, CA DATE OF HEARING 10/12/2015 DATE OF PRONOUNCEMENT 11/12/2015 O R D E R PER GEORGE GEORGE K., JUDICIAL MEMBER: THIS APPEAL OF THE REVENUE ARISES FROM THE ORDER OF THE LD. CIT(A)-III, KOCHI DATED 27-02-2015 FOR THE ASSESSMENT YEAR 2008 -09. 2. THE REVENUE HAS RAISED THE FOLLOWING GROUND S OF APPEAL: 1 THE ORDER OF THE LD. CIT(A)-III IN I.T.A.-57/R-4/ E/CIT(A)II/2010-11 DATED 27-02-2015 IS OPPOSED TO LAW, FACTS AND EVIDE NCES OF THE CASE. 2. THE LD. CIT(A)-III ERRED WHILE DELETING THE ADDI TIONS IN RESPECT OF PROVISION FOR LEAVE SALARY OF RS.3,22,303/- AND PRO VISION FOR BONUS OF RS.17,82,000/- FOR THE REASON THAT THE ASSESSEE IN COLUMN 21(B) OF FORM 3CD HAS NOT CERTIFIED THAT THESE AMOUNTS WERE PAID BEFORE THE DUE DATE U/S. 139(1). I.T.A. NO.397/COCH/2015 2 3. THE DECISION OF THE LD. CIT(A) IS NOT ACCEPTABLE AS THE ASSESSEE HAD NOT PRODUCED ANY PROOF BEFORE THE ASSESSING OFFICER DURING THE COURSE OF THE ASSESSMENT PROCEEDINGS TO SHOW THAT THE ABOVE A MOUNTS WERE PAID BEFORE THE DUE DATE. 4. THE LD. CIT(A)-III WHILE GRANTING ABOVE RELIEF A MOUNTING TO RS.21,04,303/- TO THE ASSESSEE U/S. 43B OF THE INCO ME-TAX ACT, 1961 OUGHT TO VERIFY THE CORRECTNESS OF THE ARGUMENT PUT FORTH BY THE ASSESSEE. FROM THE ORDERS OF THE CIT(A) IT IS SEEN THAT THE A SSESSEE HAS ONLY ARGUED THAT THE PAYMENTS WERE MADE BEFORE THE DUE DATE OF FILING THE RETURN OF INCOME BUT HAS NOT PRODUCED ANY PROOF FOR SUCH PAYM ENTS. 5. FOR THESE AND OTHER GROUNDS THAT MAY BE URGED AT THE TIME OF HEARING THE ORDER OF THE CIT(A)-III MAY BE SET ASIDE AND TH AT OF THE AO MAY BE RESTORED. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSE SSEE HAS CLAIMED AN AMOUNT OF RS.3,22,303/- FOR LEAVE SALARY AND NO ACTUAL PAY MENT WAS MADE TOWARDS THE SAID LEAVE SALARY. ACCORDINGLY, THE ASSESSING OFFICER DISALLOWED THE SAME AND ADDED BACK TO THE TOTAL INCOME OF THE ASSESSEE. SIMILARLY, THE ASSESSEE HAD CLAIMED AN AMOUNT OF RS.17,82,000/- TOWARDS PRO VISION FOR BONUS AND NO ACTUAL PAYMENT WAS MADE TOWARDS BONUS. ACCORDINGLY , THE SAME WAS ALSO DISALLOWED AND ADDED BACK TO THE TOTAL INCOME OF TH E ASSESSEE. 4. THE LD. COUNSEL FOR THE ASSESSEE ARGUED THAT THESE PAYMENTS WERE ACTUALLY MADE BEFORE THE DUE DATE OF FILING OF THE RETURN OF INCOME AND THEREFORE THE ASSESSEE IS ELIGIBLE FOR DEDUCTION AS PER THE FIRST PROVISO TO SECTION 43B OF THE ACT. THE LD. CIT(A) ACCEPTED TH E ARGUMENTS OF THE LD. COUNSEL FOR THE ASSESSEE VIDE PARA 6.3 OF HIS ORDER AND DELETED THE ADDITIONS I.T.A. NO.397/COCH/2015 3 SO MADE BY THE AO. THE NECESSARY OBSERVATIONS OF TH E LD. CIT(A) ARE REPRODUCED HEREINBELOW FOR THE SAKE OF CONVENIENCE: 6.3. IN THE ABOVE CIRCUMSTANCES, I AM OF THE OPIN ION THAT THE CLAIM OF THE APPELLANT IS SQUARELY COVERED BY THE FIRST PROV ISO TO SECTION 43B. THEREFORE, THE ADDITIONS OF RS.3,22,303/- AND RS.17 ,82,000/- MADE BY THE ASSESSING OFFICER ARE HEREBY DELETED. 5. THE LD. DR ARGUED THAT THE LD. CIT(A) OR ASS ESSING OFFICER IN COLUMN 21(B) OF FORM 3CD HAVE NOT VERIFIED THAT THE SAID PAYMENTS WERE PAID BEFORE THE DUE DATE U/S. 139(1) OF THE ACT. ALSO THE ASSE SSEE HAS NOT PRODUCED ANY PROOF BEFORE THE ASSESSING OFFICER DURING THE COURS E OF ASSESSMENT PROCEEDINGS TO SHOW THAT THE ABOVE AMOUNTS HAVE BEEN PAID BEFOR E THE DUE DATE OF FILING OF THE RETURN. HE FURTHER ARGUED THAT THE LD. CIT(A) HAS RELIED UPON THE ARGUMENTS PUT FORTH BY THE LD. AR BEFORE HIM AND HAS NOT VERI FIED ANY PROOF FOR SUCH PAYMENTS. ALSO NO OPPORTUNITY HAS BEEN PROVIDED TO THE ASSESSING OFFICER BEFORE DELETING THE ADDITIONS. 6. THE LD. AR ON THE OTHER HAND ARGUED THAT THE SAID P AYMENTS HAVE BEEN MADE BEFORE THE DUE DATE OF FILING OF THE RETURN AN D OUR ATTENTION WAS INVITED TO ANNEXURE A & B AT PB PAGES 4 AND 61 WHERE THERE IS A LIST OF BONUS PAYMENTS AND LEAVE SALARY ENCASHMENTS ALONGWITH A COPY OF LE DGER AND PAY ROLLS. THE LD. I.T.A. NO.397/COCH/2015 4 AR ARGUED THAT ALL THESE DETAILS WERE AVAILABLE BEF ORE THE LD. CIT(A). ACCORDINGLY, HE PRAYED TO CONFIRM THE ORDER OF THE LD. CIT(A). 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND P ERUSED THE MATERIAL AVAILABLE ON RECORD. ON PERUSAL OF THE LIST OF BONUS PAID AND LEAVE SALARY ENCASHMENTS AT PB PG. 4 AND PB PG. 61, PRIMA FACIE IT APPEARS THAT THE PAYMENTS HAVE BEEN MADE BEFORE THE DUE DATE OF FILING OF THE RETURN BU T THE SAME WERE NOT PRESENTED BEFORE THE ASSESSING OFFICER FOR HIS EXAM INATION WHETHER THE SAID PAYMENTS HAVE ACTUALLY BEEN MADE BEFORE THE DUE DAT E OF FILING OF RETURN. HOWEVER, PRESENTING THE LIST OF PAYMENTS BEFORE THE LD. CIT(A) TANTAMOUNTS TO ADDITIONAL EVIDENCES WHICH, IN FACT, SHOULD HAVE BE EN FILED IN THE PROPER FORM AND SHOULD HAVE BEEN ADMITTED BY THE LD. CIT(A) WHI CH HAS NOT BEEN DONE. 8. FROM THE PERUSAL OF THE ORDER OF THE LD. CIT(A) , THE ASSESSEE HAS ALSO NOT VERIFIED AND EXAMINED WHETHER THE SAID PAYMENTS HAVE BEEN MADE BEFORE THE DUE DATE OF FILING OF THE RETURN INSPITE OF THE FACT THAT ALL THE RECORDS WERE PLACED BEFORE HIM. HOWEVER, BEFORE REVERSING THE O RDER OF THE ASSESSING OFFICER AND DECIDING THE ISSUE IN FAVOUR OF THE ASSESSEE, T HE LD. CIT(A) SHOULD HAVE REMANDED THE MATTER BACK TO THE FILE OF THE ASSESSI NG OFFICER FOR EXAMINATION OF THE ISSUE WHETHER THE PAYMENTS HAVE BEEN MADE BEFO RE THE DUE DATE OF FILING OF THE RETURN WHICH IS PRIME REQUIREMENT OF THE FIRST PROVISO TO SECTION 43B OF THE ACT. HOWEVER, IN THE INTEREST OF JUSTICE, WE SET AS IDE THE MATTER TO THE FILE OF THE I.T.A. NO.397/COCH/2015 5 ASSESSING OFFICER TO DECIDE THE ISSUE DE NOVO AND E XAMINE WHETHER THE SAID PAYMENTS HAVE BEEN MADE BEFORE THE DUE DATE OF FILI NG OF THE RETURN BUT AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO TH E ASSESSEE. THUS, ALL THE GROUNDS OF THE REVENUE ARE ALLOWED FOR STATISTICAL PURPOSES. 9. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLO WED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 11-12-201 5. SD/- SD/- (B.P. JAIN) (GEORGE GEORGE K.) ACCOUNTANT MEMBER JUDICIAL MEMBER PLACE: KOCHI DATED: 11TH DECEMBER, 2015 GJ COPY TO: 1. THE IDUKKI DISTRICT CO-OPERATIVE BANK LTD., IDUK KI COLONY P.O., IDUKKI. 2. THE ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE -1, ALUVA. 3. THE COMMISSIONER OF INCOME-TAX(APPEALS)-III, KOC HI. 4. THE COMMISSIONER OF INCOME-TAX, KOCHI 5. D.R., I.T.A.T.,COCHIN. 6. GUARD FILE. BY ORDER (ASSISTANT REGISTRAR) I.T.A.T., COC HIN