VALUABLE INFRASTRUCTURE P. LTD, MUMBAI V. DCIT CIR 8(3), MUMBAI

ITA 5981/MUM/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 2850 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-06-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: F
• Assessment Year: 2010-2011
• Appeal Filed On: 24-09-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ANU KRISHNA AGGARWAL
• Assessee Lawyers: RISHABH S HAH
• Keywords: Earning of tax free income; Revised return
• Section: 43B; 143(3); 14A; 80G

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH F, MUMBAI BEFORE SHRI G.S.PANNU, ACCOUNTANT MEMBER AND SHRI SANJAY GARG, JUDICIAL MEMBER ITA NO. 5981/MUM/2014 (ASSESSMENT YEAR : 2010-11) ITA NO. 6107/MUM/2014 (ASSESSMENT YEAR : 2011-12) M/S. VALUABLE INFRASTRUCTURE PVT.LTD., VALUABLE TECHNOPARK PLOT NO.53/1, ROAD NO.7, MAROL, MIDC, ANDHERI (EAST), MUMBAI- 400093 PAN:AACCV 2734M ... APPELLANT VS. THE DCIT, CIR.8(3), MUMBAI .... RESPONDENT APPELLANT BY : SHRI RISHABH SHAH RESPONDENT BY : SHRI ANU KRISHNA AGGARWAL DATE OF HEARING : 09/06/2016 DATE OF PRONOUNCEMENT : 22 /06/2016 ORDER PER G.S. PANNU,AM: THE CAPTIONED APPEALS FILED BY THE ASSESSEE PERTAIN ING TO ASSESSMENT YEARS 2010-11 & 2011-12 ARE DIRECTED AGA INST ORDERS PASSED BY CIT(A)-18, MUMBAI DATED 4/7/2014 & 25/07/2014 RE SPECTIVELY, WHICH IN TURN HAVE ARISEN OUT OF ORDERS DATED 13/03 /2013 & 2 ITA NO. 5981&6107/MUM/2014 (ASSESSMENT YEAR : 2010-11) 31/03/2013 PASSED BY THE ASSESSING OFFICER UNDER SE CTION 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT). 2. FIRST WE MAY TAKE UP THE APPEAL IN ITA NO.5981/ MUM/2014. IN THIS APPEAL ASSESSEE HAS RAISED THE FOLLOWING GROUN DS OF APPEAL:- 1) ON THE FACT AND CIRCUMSTANCES OF THE CASE AS WE LL AS IN LAW, THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE ACTION O F LEARNED ASSESSING OFFICER IN DISALLOWING A SUM OF RS.87, 15 0/- U/S2(24)(X) R.W.S.36(1)(VA) OF THE INCOME TAX ACT, 1961, WITHOU T CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE. 2) ON THE FACT AND CIRCUMSTANCES OF THE CASE AS WE LL AS IN LAW, THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE ACTION O F LEARNED ASSESSING OFFICER IN DISALLOWING A SUM OF RS.11,21, 866/- U/S.14A OF THE INCOME TAX ACT' 1961 BY INVOKING THE RULE BD, W ITHOUT GIVING THE FINDINGS THAT WHY THE METHOD ADOPTED BY THE APPELLA NT FOR MAKING DISALLOWANCE OF EXPENSES OF RS.4,616/- AGAINST THE EXEMPT INCOME IS NOT TO BE ACCEPTED. 3) ON THE FACT AND CIRCUMSTANCES OF THE CASE AS WEL L AS IN LAW, THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE ACTION O F LEARNED ASSESSING OFFICER IN DISALLOWING THE CLAIM OF RS.35 ,00,000/- U/S.8OG OF THE INCOME TAX ACT' 1961, WITHOUT CONSIDERING TH E FACTS AND CIRCUMSTANCES OF THE CASE. 4) ON THE FACT AND CIRCUMSTANCES OF THE CASE AS WE LL AS IN LAW, THE LEARNED ASSESSING OFFICER HAS ERRED IN NOT ALLOWING THE CLAIM OF SPONSORSHIP EXPENSES OF RS.25,00,000/- INSTEAD OF R S.5,33,333/- ON THE ALLEGED PLEA THAT THE SAID CLAIM WAS NOT MADE B Y THE APPELLANT, WHILE FILING THE RETURN OF INCOME FOR THE A.Y.2010- 11. 5) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS W ELL AS IN LAW, THE LEARNED CIT(A) HAS ERRED IN NOT ADJUDICATING THE AD DITIONAL GROUND OF APPEAL RAISED ON ACCOUNT OF NOT ALLOWING THE CLA IM OF SPONSORSHIP EXPENSES OF RS.25,00,000/- INSTEAD OF RS.5,33,333/- ON THE ALLEGED PLEA THAT THIS ISSUE WAS NOT DISCUSSED IN THE ASSES SMENT ORDER AND NO ADDITION HAS BEEN MADE ON THIS ACCOUNT, WITHOUT CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. THE FIRST ISSUE IN THIS APPEAL IS WITH REGARD TO A DISALLOWANCE OF RS.87,150/- REPRESENTING CONTRIBUTION TOWARDS EMPL OYEES PROVIDENT FUND, WHICH HAS BEEN DISALLOWED ON THE GROUND THAT IT HAS BEEN 3 ITA NO. 5981&6107/MUM/2014 (ASSESSMENT YEAR : 2010-11) DEPOSITED SUBSEQUENT TO THE DUE DATE PRESCRIBED UND ER THE RESPECTIVE ACT. BEFORE THE CIT(APPEALS), ASSESSEE RAISED A P LEA TO THE EFFECT THAT SINCE THE AMOUNTS HAVE OTHERWISE BEEN PAID BEFORE T HE DUE DATE OF FILING OF THE RETURN OF INCOME , THEREFORE, THE SA ME SHOULD NOT SUFFER THE DISALLOWANCE UNDER SECTION 2(24)(X) R.W.S. 36( 1)(VA) OF THE ACT. THE AFORESAID PLEA OF THE ASSESSEE WAS REJECTED BY THE CIT(APPEALS) ON THE GROUND THAT THERE WAS NO EVIDENCE TO PROVE THE DATE OF PAYMENT OF AFORESAID AMOUNT. 4. BEFORE US, THE LD. REPRESENTATIVE FOR THE ASSESS EE REFERRED OUT TO PARA-2.1 OF THE ORDER OF CIT(APPEALS), WHEREIN THE ACTUAL DATE OF PAYMENTS OF THE AMOUNT TOTALLING TO RS.87,150/- HAV E BEEN NOTED, WHICH CLEARLY SHOW THAT THE PAYMENTS HAVE BEEN MADE BEFORE THE DUE DATE OF FILING OF THE RETURN AS SPECIFIED IN SECTIO N 139(1) OF THE ACT. LD. REPRESENTATIVE FOR THE ASSESSEE POINTED OUT THAT TH E AFORESAID DATES HAVE BEEN ADOPTED BY THE INCOME TAX AUTHORITIES FRO M THE TAX AUDIT REPORT FURNISHED BY THE DEPARTMENT UNDER SECTION 44 AB OF THE ACT AND, THEREFORE, THE SAME DESERVES TO BE ACCEPTED. 5. THE LD. DEPARTMENTAL REPRESENTATIVE FOR THE REVE NUE REITERATED THE OBJECTION TAKEN BY THE CIT(APPEALS), WHICH WE H AVE ADVERTED TO EARLIER. 6. WE HAVE CONSIDERED THE RIVAL STANDS. IN THE CAS E OF CIT VS. AIMIL LIMITED, 321 ITR 508 (DEL) AS ALSO IN THE CASE OF G HATGE PATIL TRANSPORT, 368 ITR 749(BOM), THE HONBLE DELHI AND BOMBAY HI GH COURTS HAVE HELD THAT EVEN EMPLOYEES CONTRIBUTION TOWARDS PROV IDENT FUND PAID BEFORE DUE DATE OF FILING OF RETURN OF INCOME DOES NOT SUFFER THE 4 ITA NO. 5981&6107/MUM/2014 (ASSESSMENT YEAR : 2010-11) DISALLOWANCE UNDER SECTION 43B OF THE ACT. IN THE PRESENT CASE, THE ACTUAL DATES OF PAYMENT ADOPTED BY THE LOWER AUTHOR ITIES TO MAKE THE DISALLOWANCE ITSELF SHOWS THAT THE PAYMENTS HAVE BE EN MADE BEFORE THE DUE DATE OF FILING OF RETURN OF INCOME UNDER SE CTION 139(1) AND, THEREFORE, FOLLOWING THE RATIO OF THE AFORESAID JUD GMENTS THE DISALLOWANCE IS HEREBY DIRECTED TO BE DELETED. THU S, ON THIS ASPECT ASSESSEE SUCCEEDS. 7. THE SECOND GROUND RELATES TO THE DISALLOWANCE OF RS.11,21,886/- UNDER SECTION 14A OF THE ACT, WHICH HAS NOT BEEN P RESSED AT THE TIME OF HEARING AND THE SAME IS ACCORDINGLY DISMISSED . 8. BY WAY OF GROUND OF APPEAL NO.3, THE GRIEVANCE O F THE ASSESSEE IS AGAINST THE REJECTION OF ITS CLAIM FOR DEDUCTION UN DER SECTION 80G OF THE ACT OF RS.35.00 LACS. THE ASSESSING OFFICER DENIED THE CLAIM OF THE ASSESSEE FOR DEDUCTION UNDER SECTION 80G OF THE ACT ON THE GROUND THAT THE SAME WAS NOT MADE IN THE RETURN OF INCOME BUT W AS CLAIMED BY THE ASSESSEE BY WAY OF A LETTER DATED 22/01/2013 DURING THE COURSE OF ASSESSMENT PROCEEDINGS. IN THE COURSE OF ASSESSMEN T PROCEEDINGS, ASSESSEE HAD CLAIMED DEDUCTION UNDER SECTION 80G ON ACCOUNT OF DONATION OF RS.35.00 LACS MADE TO VALUABLE LIFE FOU NDATION. THE ASSESSING OFFICER RELIED UPON THE JUDGMENT OF HONB LE SUPREME COURT IN THE CASE OF GOETZE (INDIA) LTD. VS. CIT, 284 ITR 32 3(SC) AND REJECTED THE PLEA SINCE IT WAS NOT MADE BY WAY OF ANY RETURN OF INCOME. THE CIT(A) HAS ALSO DENIED THE CLAIM OF THE ASSESSEE FOR THE R EASONS ADVANCED BY THE ASSESSING OFFICER. 9. BEFORE US, LD. REPRESENTATIVE FOR THE ASSESSEE P OINTED OUT THAT THE CIT(A) ERRED IN NOT APPRECIATING THAT THE JUDGM ENT OF THE HON'BLE 5 ITA NO. 5981&6107/MUM/2014 (ASSESSMENT YEAR : 2010-11) SUPREME COURT IN THE CASE OF GOETZE (INDIA)LTD (SUP RA) DID NOT EFFECT HIS POWERS TO ADMIT AN ADDITION GROUND OF APPEAL. LD. REPRESENTATIVE FOR THE ASSESSEE FURTHER POINTED OUT THAT BEFORE TH E CIT(A), ASSESSEE HAD RAISED AN ADDITIONAL GROUND OF APPEAL RELATING TO THE CLAIM OF DEDUCTION UNDER SECTION 80G OF THE ACT, WHICH HAS B EEN DENIED ON UNJUST GROUND. RELIANCE HAS ALSO BEEN PLACED ON TH E JUDGMENT OF HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. PR UTHVI BROKERS & SHAREHOLDERS PVT. LTD., IN ITA NO.3908 OF 2010 DATE D 21/06/2012 FOR THE PROPOSITION THAT THE JURISDICTION OF THE APPELLATE AUTHORITIES TO ENTERTAIN AN ADDITIONAL CLAIM HAS NOT BEEN NEGATED BY THE HON'BLE SUPREME COURT IN THE CASE OF GOETZE (INDIA) LTD. (S UPRA). 10. ON THE OTHER HAND, LD.DEPARTMENTAL REPRESENTATI VE HAS PRIMARILY RELIED UPON THE STAND OF LOWER AUTHORITIES TO THE E FFECT THAT SINCE THE CLAIM WAS NOT MADE IN THE RETURN OF INCOME, THE SAM E COULD NOT HAVE BEEN ENTERTAINED. 11. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSI ONS. IN OUR VIEW, HAVING REGARD TO THE FACTUAL MATRIX OF THE CASE, TH E CIT(A) HAS FAILED TO APPRECIATE THE ISSUE IN ITS PROPER PERSPECTIVE. BE FORE THE CIT(A), ASSESSEE HAD RAISED THE CLAIM FOR DEDUCTION UNDER S ECTION 80G AMOUNTING TO RS.35.00 LACS AS AN ADDITIONAL GROUND BASED ON PARITY REASONING LAID DOWN BY THE HON'BLE SUPREME COURT IN THE CASE OF JUTE CORPORATION OF INDIA LTD. VS. CIT, 187 ITR 688 (SC) AS ALSO IN THE CASE OF NATIONAL THERMAL POWER CO. LTD. VS. CIT, 229 ITR 38 3 (SC). SO HOWEVER, THE CIT(A) DISPOSED OF THE SAME BY NOTICING THAT SU CH CLAIM WAS NOT RAISED BEFORE THE ASSESSING OFFICER BY WAY OF ANY REVISED RETURN BUT 6 ITA NO. 5981&6107/MUM/2014 (ASSESSMENT YEAR : 2010-11) ONLY THROUGH A WRITTEN COMMUNICATION DURING THE ASS ESSMENT PROCEEDINGS. OSTENSIBLY, THE CIT(A) WAS GUIDED BY THE RATIO LAID DOWN IN THE CASE OF GOETZE (INDIA) LTD.(SUPRA). IN OUR CON SIDERED OPINION, WHAT WAS REQUIRED BY THE CIT(A) TO DECIDE WAS WHETHER TH E IMPUGNED GROUND COULD BE ADMITTED AS AN ADDITIONAL GROUND ON AN ISSUE WHICH WAS HITHERTO NOT ADMITTED BY THE ASSESSING OFFICER. THE JUDGMENT OF THE HON'BLE SUPREME COURT IN THE CASE OF GOETZE (IN DIA) LTD.(SUPRA) OPERATES IN AN ALTOGETHER DIFFERENT FIELD AND DOES NOT IMPINGE UPON THE POWERS OF APPELLATE AUTHORITIES TO ENTERTAIN FRESH CLAIMS, A PROPOSITION WHICH HAS BEEN UPHELD BY HON'BLE BOMBAY HIGH COURT IN THE CASE OF PRUTHVI BROKERS & SHAREHOLDERS PVT. LTD. (SUPRA) AS WELL AS BY THE HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. JAI PARABOLIC SPRINGS LTD. (2008) 306 ITR 42 (DEL.). SO FAR AS, THE MERITS OF THE ADMISSION OF SUCH ADDITIONAL GROUND IS CONCERNED, IN OUR VIEW, THE SA ME DESERVES TO BE ADMITTED FOR ADJUDICATION, INASMUCH AS, BEFORE THE CIT(A) ASSESSEE POINTED OUT THAT THE RECIPIENT OF DONATION ENJOYS R ECOGNITION UNDER SECTION 80G OF THE ACT VIDE ORDER NO. DIT(E)/MC/80G /2051/2010-11 ISSUED BY THE DI EXEMPTION, MUMBAI. WE, THEREFORE , DEEM IT FIT AND PROPER TO ADMIT THE AFORESAID GROUND FOR ADJUDICATI ON AND SINCE IT IS REQUIRED TO BE VERIFIED, THE SAME IS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL VER IFY THE PLEA OF THE ASSESSEE AND ALLOW APPROPRIATE RELIEF UNDER SECTION 80G OF THE ACT IN ACCORDANCE WITH LAW. THUS, ON THIS ASPECT, ASSESSE E SUCCEEDS FOR STATISTICAL PURPOSES. 12. GROUNDS OF APPEAL NO.4 & 5 ABOVE WERE NOT PRESS ED AT THE TIME OF HEARING AND THEY ARE ACCORDINGLY DISMISSED. 7 ITA NO. 5981&6107/MUM/2014 (ASSESSMENT YEAR : 2010-11) 13. IN THE RESULT, APPEAL OF THE ASSESSEE FOR ASSES SMENT YEAR 2010-11 IS PARTLY ALLOWED. 14. IN SO FAR AS THE APPEAL IN ITA NO.6107/MUM/2014 FOR ASSESSMENT YEAR 2011-12 IS CONCERNED, THE ONLY GROUND RAISED I N THE MEMO OF APPEAL IS WITH RESPECT TO THE DISALLOWANCE UNDER SE CTION 14A OF THE ACT. AT THE TIME OF HEARING, THE SAID GROUND OF APPEAL H AS NOT BEEN PRESSED AND IS ACCORDINGLY DISMISSED. 15. IN THE RESULT, WHEREAS THE APPEAL OF THE ASSESS EE FOR 2010-11 IS PARTLY ALLOWED, THAT FOR ASSESSMENT YEAR 2011-12 IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 22/06/2016 SD/- SD/- (SANJAY GARG) (G.S. PANNU) JUDICIAL MEMBER ACCOUNTANT ME MBER MUMBAI, DATED 22/06/2016 VM , SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT , 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