Shri Jitendra S Vyas, RAJKOT-GUJARAT V. The Income Tax Officer, Ward 2 (3), PORBANDAR

ITA 565/RJT/2008

• Counselvise Citation: 56524914 RSA 2008
• Duration Of Justice: 2 year(s) 8 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-08-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 08-08-2011
• Assessment Year: 2003-2004
• Appeal Filed On: 23-11-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MK SINGH
• 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.565/RJT/2008 (ASSESSMENT YEAR 2003-04) SHRI JITENDRA SHANTILAL VYAS VS THE ITO, WD.2(3) C/O LIC OF INDIA PORBANDAR PORBANDAR PAN : ABCPV0582D (APPELLANT) (RESPONDENT) DATE OF HEARING 08-08-2011 DATE OF PRONOUNCEMENT 12-08-2011 APPELLANT BY : WRITTEN SUBMISSION RESPONDENT BY: SHRI MK SINGH O R D E R PER N.R.S. GANESAN, JM THIS APPEAL OF THE ASSESSEE WAS DISPOSED OFF BY AN ORDER OF THIS TRIBUNAL DATED 29-05-2009. HOWEVER, THE ASSESSEE FILED MISCE LLANEOUS APPLICATION IN MA NO 48/RJT/2010. THIS TRIBUNAL RECALLED THE ORDER D ATED 29-05-2009 BY AN ORDER DATED 25-03-2011 IN THE MISCELLANEOUS APPLICATION. ACCORDINGLY THIS APPEAL WAS FIXED FOR DISPOSAL AFRESH. 2. NOBODY WAS PRESENT ON BEHALF OF THE ASSESSEE AT THE TIME OF HEARING. HOWEVER, A WRITTEN SUBMISSION WAS FILED ON 05-08-20 11. THEREFORE, THE MATTER WAS PROCEEDED EXPARTE QUA THE ASSESSEE AND IS DISPO SED OFF AFTER HEARING THE LD.DR AND ON CONSIDERATION OF THE WRITTEN SUBMISSIO N FILED BY THE ASSESSEE. 3. THE ONLY ISSUE ARISES FOR CONSIDERATION IN THE A PPEAL IS WITH REGARD TO THE DISALLOWANCE OF CONVEYANCE ALLOWANCE / ADDITIONAL C ONVEYANCE ALLOWANCE. THE ASSESSEE, IN ITS WRITTEN SUBMISSION SUBMITS THAT TH E ASSESSEE IS A DEVELOPMENT OFFICER IN LIC OF INDIA AND HAS RECEIVED CONVEYANCE ALLOWANCE AND ADDITIONAL ITA NO.565/RJT/2008 2 CONVEYANCE ALLOWANCE AND CLAIMED THE SAME AS EXEMPT U/S 10(14) OF THE INCOME-TAX ACT. ACCORDING TO THE LD.REPRESENTATIVE , THE CONVEYANCE ALLOWANCE / ADDITIONAL CONVEYANCE ALLOWANCE HAS TO BE ALLOWED A S EXPENDITURE WHILE COMPUTING THE TOTAL INCOME. THE LD. REPRESENTATIVE PLACED RELIANCE ON THE DECISION OF THE SPECIAL BENCH OF THIS TRIBUNAL IN T HE CASE OF P DAYAKAR VS ITO 53 ITD (HYD)(SB) 25 AS ALSO THE DECISION OF THIS TRIBU NAL IN THE CASE OF PANKAJ P JANI VS ITO IN ITA NO.696/RJT OF 2010 ORDER DATED 1 4-07-2010. THE LD.REPRESENTATIVE HAS AGAIN PLACED RELIANCE ON THE JUDGMENT OF THE APEX COURT IN THE CASE OF CIT VS LARSEN & TOUBRO LTD 313 ITR 1 (S C) AND SUBMITTED THAT IT IS NOT NECESSARY FOR THE ASSESSEE TO PRODUCE ANY EVIDE NCE IN SUPPORT OF THE ABOVE EXPENDITURE. SHRI MK SINGH, THE LD.DR RELIED ON TH E ORDERS OF AUTHORITIES BELOW. 4. AS RIGHTLY SUBMITTED BY THE ASSESSEE IN ITS WRIT TEN SUBMISSION, 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 ITA NO.565/RJT/2008 3 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. 5. IN THE RESULT, ALL THE THREE APPEALS OF THE ASSE SSEE ARE ALLOWED, FOR STATISTICAL PURPOSE. ORDER PRONOUNCED IN THE OPEN COURT ON 12-08-2011. SD/- SD/- (A.L. GEHLOT) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER RAJKOT, DT : 12 TH AUGUST, 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