ValueSource Technoloiges Private Limited, CHENNAI V. DCIT, CHENNAI

ITA 449/CHNY/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 9338 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-05-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 03-05-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 01-03-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR B NISCHAL IRS
• Assessee Lawyers: N V BALAJI
• Keywords: Transfer pricing; Opportunity of being heard; International transaction; Additional evidence; Valuation report; Assessment record
• Section: 115JB; 2

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, CHENNAI , . ! ' , #'$ BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI G. PAVAN KUMAR, JUDICIAL MEMBER ./ I.T.A. NO. 449/MDS/2016 # % &% / ASSESSMENT YEAR : 2011-2012. VALUE SOURCE TECHNOLOGIES PRIVATE LTD, 165/110, 6 TH FLOOR, MENON ETERNITY BUILDING, ST. MARYS ROAD, ALWARPET, CHENNAI 600 018. VS. DEPUTY COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE 3(2) CHENNAI 600 034. [PAN AABCV 1503D ] ( / APPELLANT) ( /RESPONDENT) '( ) * / APPELLANT BY : SHRI. N.V. BALAJI, ADVOCATE +,'( ) * /RESPONDENT BY : DR. B. NISCHAL, IRS, JCIT. ! ) - / DATE OF HEARING : 03-05-2016 ./& ) - / DATE OF PRONOUNCEMENT : 19-05-2016 / O R D E R PER G. PAVAN KUMAR, JUDICIAL MEMBER : THE APPEAL FILED BY THE ASSESSEE IS DIRECTED AG AINST ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-1 1, CHENNAI IN ITA NO.440/2014-2015-CIT(A)-11, DT 29.12.2015 FOR T HE ASSESSMENT YEAR 2011-2012 PASSED U/S.143(3) AND 250 OF THE IN COME TAX ACT, 1961 (HEREIN AFTER REFERRED TO AS THE ACT). 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS:- GROUND NO.1 - MINIMUM ALTERNATE TAX 'MAT' CREDIT UNDER SECTION 115JAA OF THE ACT 2. THE LEARNED ASSESSING OFFICER ('AO') ERRED IN NOT GRANTING THE CREDIT TOWARDS MAT PAID IN A Y 2008-09 , A Y 2009-10 & A Y 2010-11 TO THE EXTENT OF SURCHARGE, EDUCATION CESS AND SECONDARY AND HIGHER EDUCATION CESS WHILE DETERMINING THE TAX PAYABLE IN THE AY 2011-12. THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE SAME. 3. THE LEARNED AO FAILED TO APPRECIATE THAT HAVING NOT DENIED THE CARRY-FORWARD OF TAX TO THE EXTENT OF SURCHARGE , EDUCATION CESS AND SECONDARY AND HIGHER EDUCATION CESS WHILE COMPL ETING THE ASSESSMENTS FOR THE AY 2008-09, AY 2009-10 AND AY 2010- 11, HE CANNOT DENY THE SET-OFF IN AY 2011-12. THE L EARNED CIT(A) HAS ERRED IN CONFIRMING THE DENIAL OF SET-OFF TO TH E EXTENT OF SURCHARGE, EDUCATION CESS AND SECONDARY AND HIGHER EDUCATION CESS. 3. THE LEARNED AO AND CIT(A) HAVE FAILED TO APPREC IATE THAT TAX FOR THE PURPOSE OF SECTION 115JAA OF THE ACT INCLUD ES SURCHARGE, EDUCATION CESS AND SECONDARY AND HIGHER EDUCATION C ESS. GROUND NO.2 - DEDUCTION FOR GRATUITY PAID TO EMPLO YEES UNDER SECTION 40A(7) OF THE ACT 5. THE APPELLANT HUMBLY SEEKS DIRECTIONS TO BE IS SUED TO THE LEARNED AO BY THIS HON'BLE TRIBUNAL GRANT DEDUCTION TOWARDS GRATUITY PAID TO THE EMPLOYEES WHICH IT IS ELIGIBLE FOR, THOUGH NOT CLAIMED BEFORE THE LOWER AUTHORITIES. 3. THE BRIEF FACTS OF THE CASE THAT THE ASSESSEE COMPA NY IS IN SOFTWARE DEVELOPMENT SERVICES AND FILED RETURN OF I NCOME ON 29.11.2011 ADMITTING TOTAL INCOME OF ;17,05,70,17 2/- AND THE RETURN OF INCOME WAS PROCESSED U/S.143(1) OF THE ACT. THE CASE WAS SELECTED FOR SCRUTINY AND NOTICE U/S.143(2) OF THE ACT DATED 18.09.2012 WAS ISSUED. FURTHER NOTICE U/S.142(1) OF THE ACT WAS I SSUED FOR SUBMISSIONS OF DETAILS. THE LD. AUTHORISED REPRESE NTATIVE OF ASSESSEE APPEARED FROM TIME TO TIME AND FURNISHED INFORMATIO N. THE ASSESSEE HAS FILED AUDIT REPORT FORM NO.3CEB IN RESPECT OF I NTERNATIONAL TRANSACTIONS ENTERED WITH RELATED PARTIES ABOVE ;15 CRORES AND WITH THE PRIOR APPROVAL, THE CASE WAS REFERRED TO TPO. THE LD.TPO VIDE ORDER NO.F. NO.V-316/TPO-III/A.Y.2011-12, DATED 24. 09.2014 FOUND THE VALUE OF TRANSACTION FOR DETERMINING ARMS LENG TH PRICE (ALP) IS CORRECT AND THERE IS NO REQUIREMENT OF ADJUSTMENT O F INTERNATIONAL TRANSACTIONS. THE LD. ASSESSING OFFICER CONSIDERIN G THE TPO ORDER AND DISALLOWED INTEREST ON SERVICE TAX AND PASSED ASSES SMENT ORDER U/S.143(3) DATED 06.03.2015. THE ASSESSEE COMPANY IS ALSO COVERED BY PROVISIONS OF SEC. 115JB OF THE ACT AND LD. ASSE SSING OFFICER CALCULATED TAX AND RAISED DEMAND WITHOUT CONSIDERIN G THE SURCHARGE AND CESS OF MAT CREDIT. AGGRIEVED BY THE ORDER, TH E ASSESSEE FILED AN APPEAL BEFORE COMMISSIONER OF INCOME TAX (APPEALS). ITA NO.449/MDS/2016 :- 4 -: 4. IN THE APPELLATE PROCEEDINGS, THE LD. AUTHORISED REPRESENTATIVE RAISED GROUNDS ON DISPUTED ISSUE OF ALLOWING MAT CREDIT. THE LD. AUTHORISED REPRESENTATIVE SUBMITTED THAT FOR THE ASSESSMENT YEARS 2008-2009, 2009-2010 AND 2010-2011 , THE ASSESSEE COMPANY HAS PAID TAXES UNDER PROVISIONS OF SEC. 115 JB OF THE ACT AND FILED RETURN OF INCOME. IN THE CURRENT ASSESSMENT Y EAR, THE ASSESSEE HAS BROUGHT FORWARD MAT CREDIT OF EARLIER YEARS OF ;2,65,46,067/- UNDER PROVISIONS OF SEC.115JAA OF THE ACT. SINCE T HE TAX LIABILITY AS PER NORMAL COMPUTATION OF INCOME IS HIGHER, THE ASS ESSING OFFICER DETERMINED TAX LIABILITY BY LIMITING THE MAT CREDIT TO ;2,46,69,447/- EXCLUDING THE SURCHARGE AND CESS. THE LD. COMMISSIO NER OF INCOME TAX (APPEALS) ON PERUSAL OF THE PROVISIONS OF SEC. 115JB OF THE ACT RELIED ON THE DECISION OF VISHAKAPATNAM TRIBUNAL IN THE CASE OF 3F INDUSTRIES LTD VS. JCIT (2014) 44 TAXMANN.COM 200 ( VISHAKHAPATNAM ) ON MAT CREDIT TO BE CARRIED FORWARD. THE LD. CO MMISSIONER OF INCOME TAX (APPEALS) ALSO RELIED ON THE DECISIONS O F DELHI TRIBUNAL REFERRED AT PARA 8.4 AND 8.5 OF HIS ORDER AND CON CLUDED THAT FOR THE PURPOSE OF MAT CREDIT CARRIED FORWARD AND SET OFF OF EARLIER YEARS, SUCH MAT CREDIT SHALL NOT INCLUDE SURCHARGE AND CE SS AND DISMISSED THE GROUNDS AND LD. COMMISSIONER OF INCOME TAX (APP EALS) DIRECTED ASSESSING OFFICER TO VERIFY AND ALLOW THE CLAIM BAS ED ON THE ALTERNATIVE GROUND RAISED BY THE ASSESSEE THAT IF THE MAT CREDI T IS NOT CONSIDERED ITA NO.449/MDS/2016 :- 5 -: TO INCLUDE SURCHARGE AND CESS ALTERNATIVELY TAX LIA BILITY FOR THE CURRENT ASSESSMENT YEAR SHALL BE CALCULATED EXCLUDING SURCH ARGE AND CESS AND ALLOW MAT CREDIT AND LEVY SURCHARGE AND CESS. A GGRIEVED BY THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS), THE ASSESSEE HAS ASSAILED AN APPEAL BEFORE TRIBUNAL. 5. BEFORE US, THE LD. AUTHORISED REPRESENTATIVE REITER ATED THE SUBMISSIONS MADE IN THE ASSESSMENT AND APPELLATE PR OCEEDINGS AND SUBSTANTIATED HIS ARGUMENTS, SUPPORTING THE PROVISI ONS OF LAW AND ALLEGING THE ACTION OF THE ASSESSING OFFICER AS BAD IN NOT GRANTING MAT CREDIT U/SEC. 115JAA OF THE ACT INCLUDING SURCHARGE , EDUCATION CESS AND SECONDARY AND HIGHER EDUCATION CESS IN DETERMI NING TAX LIABILITY. PRIME FACIE THE LD. ASSESSING OFFICER HAS DENIED CA RRIED FORWARD OF SURCHARGE, EDUCATION CESS, AND SECONDARY AND HIGH ER EDUCATION CESS WHILE COMPLETING THE ASSESSMENT AND ARGUED THAT TAX ALSO INCLUDES SURCHARGE AND CESS AND PRAYED FOR ALLOWING THE APPE AL. 6. CONTRA, LD. DEPARTMENTAL REPRESENTATIVE RELIED ON THE ORDERS OF LOWER AUTHORITIES AND PROVISIONS OF LAW IN RESPE CT OF MAT CREDIT AND OPPOSED THE GROUNDS. ITA NO.449/MDS/2016 :- 6 -: 7. WE HEARD RIVAL SUBMISSIONS, PERUSED THE MATERIAL ON RECORD, JUDICIAL DECISIONS CITED. THE ONLY CONTENTION OF T HE LD. AUTHORISED REPRESENTATIVE BEING THAT ASSESSING OFFICER HAS RES TRICTED MAT CREDIT TO THE EXTENT OF TAX PORTION OF EARLIER YEARS AND N OT ALLOWED SURCHARGE AND EDUCATIONAL CESS. IN THE CURRENT ASSESSMENT YE AR, THE ASSESSEE COMPANY LIABLE TO PAY INCOME TAX BASED ON THE NORMA L COMPUTATION OF INCOME, IN SUCH CIRCUMSTANCES THE ASSESSEE IS ELIGI BLE FOR MAT CREDIT CARRIED FORWARDED FROM EARLIER ASSESSMENT YEARS U/ S.115JA OF THE ACT. UNDER THE PROVISIONS OF SEC. 115JB TAX COMPONENTS D EEMED TO HAVE INCLUDED SURCHARGE AND EDUCATIONAL CESS. THIS VIEW WAS CONSIDERED BY THE APEX COURT IN THE CASE OF CIT VS. K. SRINIVASAN 83 ITR 0346 WERE WORDS INCOME-TAX IN THE FINANCE ACT OF 1964 IN SUB-SEC(2)(A) AND SUB-SE(2)(B) OF SEC. 2 WOULD INCLUDE SURCHARGE AND ADDITIONAL SURCHARGE. A SIMILAR ISSUE WAS DECIDED BY THE CO-O RDINATE BENCH OF THE TRIBUNAL IN ITA NO.2122/MDS/2015, DATED 03.02.2 016 IN THE CASE OF M/S. SAINT GOBAIN GYPROC INDIA LTD IN ASSESSMENT YEAR 2013-2014 HELD IN PARA 7 AS UNDER:- WE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIE S PERUSED THE MATERIAL ON RECORD AND ALSO JUDICIAL DE CISION CITED. THE ASSESSEE COMPANY HAS CLAIMED MAT CREDIT SET OFF AGAINST INCOME TAX ON NORMAL PROVISIONS WHICH I S ALLOWABLE AND SUCH MAT CREDIT CAN BE CARRIED FORWAR D ALSO. UNDER THE PROVISIONS OF SEC. 115JB TAX COMPON ENTS ALSO INCLUDES SURCHARGE AND EDUCATION CESS. THE LD . ITA NO.449/MDS/2016 :- 7 -: AUTHORISED REPRESENTATIVE REITERATED HIS SUBMISSION S MADE BEFORE THE APPELLATE PROCEEDINGS WERE RELIEF W AS GRANTED. BEFORE US, THE LD. DEPARTMENTAL REPRESENTA TIVE RELIED ON THE FINDINGS OF THE ASSESSING OFFICER AND ARGUED TO SET ASIDE THE APPEAL. IN REPLY, THE LD. AUTHORI SED REPRESENTATIVE RELIED ON THE DECISION OF ITAT, MUMB AI BENCH WYETH LIMITED VS. ACIT IN ITA NO.6682/MUM/2011, DATED 09.01.2015 WHICH HAS ENDORSED THE PROVISIONS OF ALLOWING MAT CREDIT OBSE RVED AT PAGE 4 IN PARA 5 AS UNDER:- 5. THUS IT IS CLEAR THAT THE HONBLE HIGH COURT HAS TAKEN INTO ACCOUNT THE ORDER OF ENTRIES IN THE FORM ITR-6 FOR THE A.Y. 2011-12 IN THE SAID CASE AND HEL D THAT AS PER FORM ITR-6, THE MAT CREDIT HAS TO BE GIVEN AGAINST THE GROSS TAX PAYABLE EXCLUSIVE OF SURCHARGE /CESS AND ONLY AFTER THE MAT CREDIT TAX LIABILITY, THE SURCHARGE AND CESS HAS TO BE CALCULA TED FOR THE PURPOSE OF WORKING OUT THE GRAND TAX LIABIL ITY. WE ALSO FIND MERIT AND SUBSTANCE IN THE ALTERNATIVE CONTENTION OF THE ASSESSEE THAT IF THE MAT CREDIT I S TAKEN INTO ACCOUNT WITHOUT INCLUDING THE SURCHARGE AND EDUCATION CESS THEN THE SURCHARGE AND EDUCATION CESS ON THE TAX LIABILITY HAS TO BE CALCULATED ONLY AFTER ALLOWING THE MAT CREDIT. ALTERNATIVELY, THE AMOUNT OF MAT CREDIT SHOULD ALSO INCLUDE SURCHARGE AND EDUCATION CESS FOR THE PURPOSE OF ALLOWING THE CREDIT AGAINST THE TAX LIAB ILITY INCLUSIVE OF SURCHARGE AND EDUCATION CESS. THEREFORE, THE MAT AS WELL AS NORMAL TAX BEFORE ALLOWING THE MAT CREDIT HAS TO BE TAKEN ON PARITY EITHER EXCLUSION OF SURCHARGE AND EDUCATION CESS OR INCLUSIVE OF SURCHARGE AND EDUCATION CESS OR INCLUSIVE OF SURCHARGE AND EDUCATION CESS. ACCORDINGLY WE SET ASIDE THE ORDERS OF AUTHORITIES BELOW AND DIRECT THE ASSESSING OFFICER TO ALLOW THE MAT CREDIT AGAINST THE TAX LIABILITY PAYABLE BEFORE SURCHARGE AND EDUCATION CESS OR ALTERNATIVELY THE AMOUNT OF MAT CREDIT SHOULD ALSO BE INCLUSIVE OF SURCHARGE AND EDUCATION CESS AND THEN ALLOW THE CREDIT AGAINST THE TAX PAYABLE INCLUSIVE OF SURCHAR GE AND EDUCATION CESS. WE RESPECTFULLY FOLLOWING THE ABOVE DECISION, UPHE LD THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) A ND DISMISS THE REVENUE APPEAL. ITA NO.449/MDS/2016 :- 8 -: WE RESPECTFULLY FOLLOWING THE CO-ORDINATE BENCH DEC ISION ON MAT TAX CREDIT U/S.115JAA OF THE ACT AND ALLOW THE GROUNDS IN FAVOUR OF THE ASSESSEE. 8. ON THE SECOND GROUND, THE ASSESSEE HAS FILED ADDITI ONAL GROUND AND FILED A PETITION FOR ADMISSION OF FRESH CLAIM OF DEDUCTION TOWARDS GRATUITY PAID AS SAME WAS NOT CLAIMED IN TH E ORIGINAL RETURN OF INCOME. THE LD. DEPARTMENTAL REPRESENTATIVE HAS O BJECTED TO ADDITIONAL GROUNDS BECAUSE ASSESSEE HAS NOT PREFERR ED THE CLAIM IN THE ASSESSMENT PROCEEDING OR IN APPELLATE PROCEEDINGS A ND THE LD. ASSESSING OFFICER WAS DEPRIVED OF OPPORTUNITY TO VE RIFY THE CLAIM. THE LD. AUTHORISED REPRESENTATIVE EXPLAINED THAT THE AS SESSEE COMPANY HAS PAID GRATUITY TO THE EMPLOYEES WHO LEFT THE COM PANY DURING THE FINANCIAL YEAR 2010-11 ;2,94,719/- AND DUE TO CHANG E IN MANAGEMENT THE COMPANY HAS FAILED TO CLAIM THE DEDUCTION AND S UPPORTED THE CLAIM WITH DOCUMENTARY EVIDENCE AND CONFIRMATIONS. THE LD. AUTHORISED REPRESENTATIVE SUBMITTED THAT THE ASSESSEE COMPANY HAS MADE PROVISION FOR GRATUITY IN THE BOOKS OF ACCOUNT AND AT THE TIME OF PREPARING COMPUTATION OF INCOME THE ASSESSEE HAS DI SALLOWED PROVISION FOR GRATUITY WHICH ALSO INCLUDES GRATUITY PAYMENTS. THE LD. AUTHORISED REPRESENTATIVE FURTHER SUBSTANTIATED THE GROUNDS BY PROVIDING THE ACTUAL VALUATION REPORT UNDER AS-15 O F ICAI AND LEDGER ITA NO.449/MDS/2016 :- 9 -: ACCOUNT OF GRATUITY AND ACTUAL PAYMENT INCURRED IN THE FINANCIAL YEAR. THE GRATUITY OF ;2,94,719/- WAS PAID TO FOUR EMPLO YEES WHO LEFT THE SERVICES AND INCLUDED IN THE FORM NO.16 ISSUED BY THE EMPLOYER AND PRAYED FOR ADMITTING THE ADDITIONAL GROUND AND AL LOW THE DEDUCTION FOR ACTUAL GRATUITY PAID. 9. CONTRA, THE LD. DEPARTMENTAL REPRESENTATIVE RELIED ON THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS) AND F INDINGS OF THE ASSESSING OFFICER WERE THE DISPUTED ISSUE WAS NOT PART OF ASSESSMENT RECORDS. THE ASSESSEE HAS DEFAULTED IN EXPLAINING THE REASONS FOR CLAIMING FOR THE FIRST TIME BEFORE TRIBUNAL AND I S IN THE NATURE OF FRESH EVIDENCE UNDER RULE 46 OF THE INCOME TAX RULES AND ADMISSION OF ADDITIONAL EVIDENCE RULES ARE TO THE FOLLOWED. TH E ASSESSING OFFICER SHOULD BE PROVIDED ADEQUATE OPPORTUNITY TO VERIFY T HE GENUINESS OF THE CLAIM AND PRAYED FOR DISMISSAL OF GROUND. 10. WE HEARD RIVAL SUBMISSIONS, PERUSED THE MATERIAL ON RECORD AND JUDICIAL DECISIONS AND THE ADDITIONAL EVIDENCE FILED FOR ADMITTING ADDITIONAL GROUND. THE LD. AUTHORISED REPRESENTATI VE FOR THE FIRST TIME HAS RAISED CLAIM BEFORE TRIBUNAL AND FILED A PETITI ON AND WAS STRONGLY OPPOSED BY THE DEPARTMENT. CONSIDERING THE SUPPORT ING EVIDENCE AND CLAIM, BEING LEGAL ISSUE, WE ADMIT AND ADJUDICATE T HE ADDITIONAL GROUND. THE LD. AUTHORISED REPRESENTATIVE HAS ARGU ED AND FILED PAPER ITA NO.449/MDS/2016 :- 10 -: BOOK INCLUDING LEDGER COPY OF BANK ACCOUNT, SALARY PAYABLE ACCOUNT AND COMPUTATION OF INCOME AND FINANCIAL STATEMENTS. THE LD. AUTHORISED REPRESENTATIVE DREW OUR ATTENTION TO PAG E NO.44 OF PAPER BOOK WERE PROVISION OF GRATUITY WAS DISALLOWED AND REFERRED TO LEDGER COPY OF GRATUITY AT PAGE NO.7 OF PAPER BOOK WERE ST ATEMENT OF EMPLOYEES WHO LEFT THE SERVICES AND GRATUITY WAS P AID ;2,94,719/-. THE LD. AUTHORISED REPRESENTATIVE TO SUBSTANTIATE T HE GENUINESS OF PAYMENT SUPPORTED THE GROUNDS WITH COPIES OF FORM N O.16 ISSUED BY THE ASSESSEE COMPANY AS EMPLOYER TO EMPLOYEES AND T HE BREAKUP WAS REFLECTED IN THE PROFIT AND LOSS ACCOUNT FOR THE YE AR ENDING 31.03.2011 UNDER THE SCHEDULES OF PERSONAL EXPENSES AT PAGE NO.52 OF PAPER BOOK. THE ASSESSEE FILED EXTRACT OF ICICI BANK ST ATEMENT IN SUPPORT OF GRATUITY PAYMENTS. PRIME FACIE IT IS A CLEAR CAS E OF MISTAKE IN NOT CLAIMING DEDUCTION BY THE ASSESSEE COMPANY. CONSIDE RING THE PROVISIONS OF LAW, SUBJECT TO VERIFICATION BY THE A SSESSING OFFICER AND WE RELY ON THE APEX COURT DECISION CIT VS. SHELLY PRODUCTS AND ANOTHER 261 ITR 367 WERE IT WAS HELD AS UNDER:- WE CANNOT LOSE SIGHT OF THE FACT THAT THE FAILURE OR INABILITY OF THE REVENUE TO FRAME A FRESH ASSESSMEN T SHOULD NOT PLACE THE ASSESSEE IN A MORE DISADVANTA GEOUS POSITION THAN IN WHAT HE WOULD HAVE BEEN IF A FRESH ITA NO.449/MDS/2016 :- 11 -: ASSESSMENT WAS MADE. IN A CASE WHERE AN ASSESSEE CHOOSES TO DEPOSIT BY WAY OF ABUNDANT CAUTION ADVAN CE TAX OR SELF-ASSESSMENT TAX WHICH IS IN EXCESS OF HIS LIABILITY ON THE BASIS OF THE RETURN FURNISHED OR T HERE IS ANY ARITHMETICAL ERROR OR INACCURACY, IT IS OPEN TO HIM TO CLAIM REFUND OF THE EXCESS TAX PAID IN THE COURSE OF THE ASSESSMENT PROCEEDING. HE CAN CERTAINLY MAKE SUCH A CLAIM ALSO BEFORE THE CONCERNED AUTHORITY CALCULATI NG THE REFUND. SIMILARLY, IF HE HAS BY MISTAKE OR INADVER TENCE OR ON ACCOUNT OF IGNORANCE, INCLUDE IN HIS INCOME ANY AMOUNT WHICH IS EXEMPTED FROM PAYMENT OF INCOME-TAX, OR IS NOT INCOME WITHIN THE CONTEMPLATION OF LAW, HE MAY LIKE WISE BRING THIS TO THE NOTICE OF THE ASSESSING AUTHORITY WHICH IF SATISFIED, MAY GRANT HIM RELIEF AND REFUND THE T AX PAID IN EXCESS, IF ANY. SUCH MATTERS CAN BE BROUGHT TO T HE NOTICE OF THE CONCERNED AUTHORITY IN A CASE WHERE R EFUND IS DUE AND PAYABLE, AND THE AUTHORITY CONCERNED, ON BEING SATISFIED, SHALL GRANT APPROPRIATE RELIEF. IN CASE S GOVERNED BY SECTION 240 OF THE ACT, AN OBLIGATION IS C AST UPON THE REVENUE TO REFUND THE AMOUNT TO THE ASSES SEE WITHOUT HIS HAVING TO MAKE ANY CLAIM IN THAT BEHALF . IN APPROPRIATE CASES THEREFORE, IT IS OPEN TO THE ASS ESSEE TO BRING FACTS TO THE NOTICE OF THE CONCERNED AUTHO RITY ON THE BASIS OF THE RETURN FURNISHED, WHICH MAY HAVE A BEARING ON THE QUANTUM OF THE REFUND, SUCH AS THOSE THE ASSESSEE COULD HAVE URGED UNDER SECTION 237 OF THE ACT . THE CONCERNED AUTHORITY, FOR THE LIMITED PURPOSE OF CALCULATING THE AMOUNT TO BE REFUNDED UNDER SECTION 240 OF THE ACT, MAY TAKE ALL SUCH FACTS INTO CONSIDERAT ION AND CALCULATE THE AMOUNT TO BE REFUNDED. SO VIEWED, AN ASSESSEE WILL NOT BE PLACED IN A MORE DISADVANTAGEO US POSITION THAT WHAT HE WOULD HAVE BEEN, HAD AN ASSES SMENT BEEN MADE IN ACCORDANCE WITH LAW. CONSIDERING THE APPARENT FACTS, FACTUAL EVIDENCE, C LAIM OF DEDUCTION AND DECISION OF APEX COURT, WE REMIT THE DISPUTED I SSUE TO THE FILE OF ASSESSING OFFICER TO VERIFY AND EXAMINE THE GENUINE SS OF THE CLAIM AND ITA NO.449/MDS/2016 :- 12 -: ALLOW DEDUCTION AND ASSESSING OFFICER SHALL PROVIDE ADEQUATE OPPORTUNITY OF BEING HEARD TO ASSESSEE BEFORE PASSI NG THE ORDER. 11. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON THURSDAY, THE 19TH DAY OF MA Y, 2016, AT CHENNAI. SD/- SD/- ( ) (CHANDRA POOJARI) / ACCOUNTANT MEMBER ( . ! ' ) (G. PAVAN KUMAR) / JUDICIAL MEMBER / CHENNAI 1 / DATED: 19.05.2016 VENU 2 ) +#-34 54&- / COPY TO: 1 . '( / APPELLANT 3. ! 6- () / CIT(A) 5. 4 9: +#-# / DR 2. +,'( / RESPONDENT 4. ! 6- / CIT 6. :% ; / GF