JALAJ ASHWIN DANI, MUMBAI V. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-15(1)(1), MUMBAI

ITA 5375/MUM/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 6269 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-09-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: F
• Assessment Year: 2016-2017
• Appeal Filed On: 16-08-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Earning of tax free income
• Section: 154; 234B; 201; 22; 20

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI BEFORE SHRI AMARJIT SINGH, JM AND SHRI MANOJ KUMAR AGGARWAL , AM / I.T.A. NO. 5375 /MUM/20 19 ( / ASSESSMENT YEAR: 20 1 6 - 17 ) JALAJ ASHWIN DANI HOME VILLA, 48, KRISH NA SANGHI PATH, GAMDEVI, MUMBAI - 400007 . / VS. ACIT,CIR - 15(1)(1) AAYAKAR BHAVAN, MAHARSHI KARVE ROAD, MUMBAI - 400020. ./ ./ PAN/GIR NO. : AAAPD5466F ( / APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING: 22 / 07 /202 1 /DATE OF PRONOUNCEMENT: 03 /09 /2021 / O R D E R PER AMARJIT SINGH, JM: THE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER DATED 08 . 05 . 201 9 PASSED BY THE COMMISS IONER OF INCOME TAX (APPEALS) - 24 , MUMBAI (HEREINAFTER REFERRED TO AS THE CIT( A)) RELEVANT TO THE A.Y.20 16 - 1 7 . 2 . THE ASSESSEE HAS RAISED THE FOLLOWIN G GROUNDS: - ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) - 24, MUMBAI, ERRED IN CONFIRMING THE DISALLOWANCE OF RS.15,00,000 CLAIMED U/S 35AC ON THE GROUND THAT SUCH DONATIONS ARE INADMISSIBLE AGAINST THE EXEMPT INCOME FROM PARTNERSHIP FIRM IGNORI NG THE FACT THAT THE SAID DEDUCTION U/S 35AC IS TO BE SHOWN IN THE SCHEDULE BP OF ITR 3. ASSESSEE B Y : SHRI DALPAT SHAH (AR) REVENUE BY: MS. USHA GAIKWAD ( D R) ITA NO. 5375 /M UM /20 19 A.Y.20 1 6 - 17 2 WITHOUT PREJDUCE, THE SAID CIT(A) ALSO ERRED IN NOT ALLOWING ALTERNATE CLAIM OF DEDUCTION U/S 80GGA(2)(BB) FOR THE SAID DONATIONS WHICH IS ALLOWABLE BY THE LAW AND ERR ED IN NOT APPRECIATING THE FACT THAT THE SAID AO OUGHT TO HAVE ALLOWED THE SAME AS A RECTIFICATION U/S 154 AS THE POWER OF AO IS QUASI - JUDICAL IN NATURE AND HE IS DUTY BOUND TO ACT FAIRLY IN THE DISCHARGE OF HIS FUNCTIONS AS DIRECTED BY CBDT VIDE CIRCULAR NO.14 (XL - 35) DATED 11.04.1955. WITHOUT PREJUDICE , THE SAID CIT(A) ERRED IN NOT APPRECIATING THE FACT THAT IF A DEDUCTION FOR AN EXPENDITURE IS ALLOWABLE UNDER DIFFERENT SECTION THE CLAIM FOR SUCH DEDUCTION CANNOT BE REJECTED IN THE APPEAL PROCEEDINGS. THE APPELLANT SUBMITS THAT THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF GOETZE (INDIA) LTD. VS. CIT 284 ITR 323 DOES NOT DEBAR THE APPELLANT AUTHORITIES IN ADMITTING ALTERNATE LEGAL CLAIM AS HELD IN THE CASE OF CIT VS. PRUTHVI BROKERS & SHAREHOLDE RS PVT. LTD. 349 ITR 336 (BOM). LEVY OF INTEREST U/S 234B & U/S 234D THE SAID CIT(A) ERRED IN CONFIRMING THE LEVY OF INTEREST U/S 234B OF RS.2.04,032/ - AND U/S 234D OF RS.7,125/ - WHEN NO SUCH INTEREST CAN BE CHARGED THE APPELLANT CRAVES LEAVE TO ADD, AMEND , ALTER, MODIFY AND / OR DELETE ALL OR ANY OF THE ABOVE GROUNDS ON OR BEFORE THE DATE OF HEARING. ISSUE NO.1.2 3 . WE HAVE HEARD THE ARGUMENT S ADVANCED BY THE LD. REPRESENTATIVE OF THE PARTIES AND PERUSED THE RECORD . THE CONTENTION OF THE LD. REPRESENTATI VE OF THE ASSESSE E IS THAT THE AO DID NOT CONSIDER THE ALTERNATIVE CLAIM IN VIEW OF THE PROVISIONS U/S 80GGA(2)(BB) OF THE ACT, THEREFORE, THE ISSUE SHOULD BE REMANDED TO THE AO IN VIEW OF CBDT CIRCULAR NO.14(XL - 35) DATED ITA NO. 5375 /M UM /20 19 A.Y.20 1 6 - 17 3 11.04.1955. HOWEVER, ON THE OTHER HAND, THE LD. REPRESENTATIVE OF THE DEPARTMENT HAS REFUTED THE SAID CONTENTION. ON APPRAISAL OF THE FINDING OF THE AO AS WELL AS CIT(A), WE FIND THAT THE ALTERNATIVE CLAIM OF THE ASSESSE IN VIEW OF PROVISIONS U/S 80GGA(2)(BB) OF THE ACT HAS NOT BEEN CONSID ERED AND DECIDED, THEREFORE, WITHOUT GOING IN TO THE MERITS OF THE CASE, WE REMAND THE ISSUE BEFORE THE AO TO CONSIDER THE ALTERNATIVE CLAIM IN VIEW OF THE PROVISIONS U/S 80GGA(2)(BB) OF THE ACT IN ACCORDANCE WITH LAW BY GIVING AN OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ACCORDINGLY, THIS ISSUE IS DECIDED IN FAVOUR OF THE ASSESSEE AGAINST THE REVENUE. ISSUE NOS.1.1 & 1.3 4. IN VIEW OF THE DECISION OF THE ISSUE NO. 1.2, WE LEFT OP EN THE GROUND TO CONTEST AS AND WHEN THE NECESSARY STAGE CAME BEFORE US. 6 . I N THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS HEREBY PARTLY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 03 / 09 /202 1 SD/ - SD/ - ( MAN OJ KUMAR AGGARWAL ) (AMARJIT SINGH) / ACCOUNTANT MEMBER /JUDICIAL MEMBER MUMBAI; DATED : 03 / 09 /202 1 VIJAY PAL SINGH (SR. PS) ITA NO. 5375 /M UM /20 19 A.Y.20 1 6 - 17 4 / COPY OF THE ORDER FORWARDED TO : 1. / THE A PPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. / BY ORDER, //TRUE COPY// / /(DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI