Shri Dipak S Buch, RAJKOT-GUJARAT V. The Income Tax Officer, Ward 2(4), PORBANDAR

ITA 560/RJT/2008

• Counselvise Citation: 56024914 RSA 2008
• Duration Of Justice: 2 year(s) 6 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-05-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2002-2003
• Appeal Filed On: 31-10-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AVINASH KUMAR
• Assessee Lawyers: DR ADHIA
• Keywords: Corroborative evidences
• Section: 10(14)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL RAJKOT BENCH, RAJKOT BEFORE SHRI A.L. GEHLOT (AM) AND SHRI N.R.S. GANESA N (JM) I.T.A. NO.560 TO 562/RJT/2008 (ASSESSMENT YEARS 2002-03, 2003-04 & 2004-05) SHRI DIPAK H BUCH VS THE ITO, WD.2(4) DEVELOPMENT OFFICER PORBANDAR LIC OF INDIA, MG ROAD PORBANDAR PAN : ADRPV1198C (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI DR ADHIA RESPONDENT BY: SHRI AVINASH KUMAR O R D E R PER N.R.S. GANESAN, JM ALL THE THREE APPEALS OF THE ASSESSEE WERE DISPOSE D OFF BY AN ORDER OF THIS TRIBUNAL DATED 29-05-2009. HOWEVER, THE ASSESSEE FI LED MISCELLANEOUS APPLICATIONS IN MA NOS 45 TO 47/RJT/2010. THIS TRI BUNAL RECALLED THE ORDER DATED 29-05-2009 BY AN ORDER DATED 18-02-2011 IN THE MISC ELLANEOUS APPLICATIONS. ACCORDINGLY ALL THE THREE APPEALS WERE FIXED FOR DI SPOSAL AFRESH. 2. THE ONLY ISSUE ARISES FOR CONSIDERATION IN ALL T HE THREE APPEALS IS WITH REGARD TO THE DISALLOWANCE OF CONVEYANCE ALLOWANCE / ADDITIONAL CONVEYANCE ALLOWANCE. SHRI DR ADHIA, THE LD.REPRESENTATIVE F OR THE ASSESSEE SUBMITTED THAT THE ASSESSEE IS A DEVELOPMENT OFFICER IN LIC OF IND IA AND RECEIVED CONVEYANCE ALLOWANCE AND ADDITIONAL CONVEYANCE ALLOWANCE AND C LAIMED THE SAME AS EXEMPT U/S 10(14) OF THE INCOME-TAX ACT. ACCORDING TO THE LD.REPRESENTATIVE, THE CONVEYANCE ALLOWANCE / ADDITIONAL CONVEYANCE ALLOWA NCE HAS TO BE ALLOWED AS EXPENDITURE WHILE COMPUTING THE TOTAL INCOME. THE LD. REPRESENTATIVE PLACED RELIANCE ON THE DECISION OF THE SPECIAL BENCH OF TH IS TRIBUNAL IN THE CASE OF P DAYAKAR VS ITO 53 ITD (HYD)(SB) 25 AND ALSO DECISIO N OF THIS TRIBUNAL IN THE CASE OF PANKAJ P JANI VS ITO IN ITA NO.696/RJT OF 2 010 ORDER DATED 14-07- ITA NO.560 TO 562/RJT/2008 2 2010. THE LD.REPRESENTATIVE HAS AGAIN PLACED RELIA NCE ON THE JUDGMENT OF THE APEX COURT IN THE CASE OF CIT VS LARSEN & TOUBRO LT D 313 ITR 1 (SC) AND SUBMITTED THAT IT IS NOT NECESSARY FOR THE ASSESSEE TO PRODUCE ANY EVIDENCE IN SUPPORT OF THE ABOVE EXPENDITURE. WE HEARD SHRI AV INASH KUMAR, THE LD.DR ALSO 3. AS RIGHTLY SUBMITTED BY THE LD.REPRESENTATIVE OF THE ASSESSEE, THE ONLY ISSUE ARISES FOR CONSIDERATION IS DISALLOWANCE OF C ONVEYANCE ALLOWANCE / ADDITIONAL CONVEYANCE ALLOWANCE RECEIVED BY THE ASS ESSEE AS DEVELOPMENT OFFICER FROM LIC OF INDIA. THIS ISSUE WAS ELABORAT ELY CONSIDERED BY THE SPECIAL BENCH OF THIS TRIBUNAL AT HYDERABAD IN P DAYAKAR VS ITO (SUPRA) AND IT WAS FOUND THAT 40% OF THE EXPENDITURE CAN BE ALLOWED ON ESTIMATE BASIS. WE HAVE ALSO CAREFULLY GONE THROUGH THE JUDGMENT OF THE APE X COURT IN THE CASE OF LARSEN & TOUBRO LTD (SUPRA). IN THE CASE BEFORE THE APEX COURT IN LARSEN & TOUBRO LTD (SUPRA) THE ASSESSEE CLAIMED THAT THE EMPLOYER WAS NOT EXPECTED TO COLLECT AND EXAMINE THE SUPPORTING EVIDENCE IN RESPECT OF LEAVE TRAVEL CONCESSION / CONVEYANCE ALLOWANCE WHILE DEDUCTING TAX U/S 192 OF THE INCOME-TAX ACT. THE APEX COURT FOUND THAT THE BENEFICIARY OF THE EXEMPT ION IS THE INDIVIDUAL EMPLOYEE AND THERE WAS NO CIRCULAR OF THE CBDT REQUIRING THE EMPLOYER UNDER SECTION 192 TO COLLECT AND EXAMINE THE SUPPORTING EVIDENCE TO T HE DECLARATION TO BE SUBMITTED BY AN EMPLOYEE. IN THE CASE BEFORE US, AN EMPLOYEE OF THE LIC OF INDIA IS THE APPELLANT. THEREFORE, THE JUDGMENT OF THE APEX COU RT DELIVERED IN THE CONTEXT OF EMPLOYER MAY NOT BE STRICTLY APPLICABLE TO THE FACT S OF THIS CASE. HOWEVER, THE LOWER AUTHORITY HAS NOT CONSIDERED THE DECISION OF THE SPECIAL BENCH OF THE TRIBUNAL AT HYDERABAD IN THE CASE OF SHRI P DAYAKAR VS ITO (SUPRA). PROBABLY THE ATTENTION OF THE LOWER AUTHORITIES MAY NOT HAVE BEEN DRAWN TO THE DECISION OF THE SPECIAL BENCH OF THIS TRIBUNAL. THEREFORE, IN OUR OPINION, THE MATTER NEEDS TO BE RE-EXAMINED BY THE LOWER AUTHORITIES. ACCORDING LY, WITHOUT EXPRESSING ANY OPINION ON MERIT, WE SET ASIDE THE ORDER OF THE LOW ER AUTHORITIES AND REMAND BACK THE MATTER BACK TO THE FILE OF THE ASSESSING OFFICE R. THE ASSESSING OFFICER SHALL EXAMINE THE ISSUE AFRESH AND THEREAFTER DECIDE THE ISSUE IN ACCORDANCE WITH LAW AFTER GIVING REASONABLE OPPORTUNITY OF HEARING TO T HE ASSESSEE. ITA NO.560 TO 562/RJT/2008 3 4. IN THE RESULT, ALL THE THREE APPEALS OF THE ASSE SSEE ARE ALLOWED, FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 13-05-2011. SD/- SD/- (A.L. GEHLOT) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER RAJKOT, DT : 13 TH MAY, 2011 PK/- COPY TO: 1. ASSESSEE 2. REVENUE 3. THE CIT(A), JAMNAGAR 4. THE CIT, JAMNAGAR 5. THE DR, I.T.A.T., RAJKOT (TRUE COPY) BY ORDER ASSTT.REGISTRAR, ITAT, RAJKOT