DCIT (OSD) 9(1), MUMBAI V. UNITED RUBBER INDUSTRIES INDIA P.LTD, MUMBAI

ITA 6198/MUM/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 75568 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-02-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2009-2010
• Appeal Filed On: 10-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHRI R K SAHU
• Keywords: Revised return

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL F B ENCH, MUMBAI . , !'# , $% &'() , $* +, $ # BEFORE SHRI D.MANMOHAN, VP AND SHRI N.K. BILLAIY A, AM ./ I.T.A. NO.6198/MUM/2012 ( - - - - / ASSESSMENT YEAR :2009-10 THE DCIT-9(3), AAYAKAR BHAVAN, MUMBAI-400 020 / VS. M/S. UNITED RUBBER INDUSTRIES INDIA PVT. LTD, 13, ASHIANA TOWER, I.C. COLONY, BORIVLI (W), MUMBAI-400 103 ,. $* ./ /0 ./ PAN/GIR NO. : AAACU 6911F ( .1 / APPELLANT ) .. ( 23.1 / RESPONDENT ) .1 4 $ / APPELLANT BY: SHRI SHRI R.K. SAHU 23.1 5 4 $ / RESPONDENT BY: SHRI ANUJ KISNADWALA 5 6* / DATE OF HEARING :19.02.2014 7- 5 6* / DATE OF PRONOUNCEMENT :19.02.2014 +$8 / O R D E R PER N.K. BILLAIYA, AM: THIS IS AN APPEAL BY THE REVENUE AGAINST THE ORDER OF THE LD. CIT(A)-19, MUMBAI DT.09.08.2012 PERTAINING TO A.Y. 2009-10. 2. THE SOLE GRIEVANCE OF THE REVENUE IS THAT THE LD . CIT(A) ERRED IN ALLOWING THE ADDITIONAL CLAIM OF DEDUCTION OF RS. 1 ,15,75,388/- U/S. 35(2AB) OF THE ACT. ITA NO.6198/M/2012 2 3. FACTS OF THE CASE ARE THAT DURING THE COURSE OF THE SCRUTINY ASSESSMENT PROCEEDINGS VIDE LETTER DT. 26.12.2011 T HE ASSESSEE MADE AN ADDITIONAL CLAIM FOR ALLOWING THE DEDUCTION U/S. 35 (2AB) OF THE ACT. THE AO NOTICED THAT THIS DEDUCTION WAS NOT CLAIMED BY T HE ASSESSEE IN ITS ORIGINAL RETURN OF INCOME. THE ASSESSEE HAS ALSO N OT CLAIMED THIS DEDUCTION IN ITS REVISED RETURN OF INCOME. WITHOUT GOING INTO THE MERITS OF THE CLAIM, THE AO STRAIGHTAWAY REJECTED THE CLAI M OF THE ASSESSEE RELYING UPON THE DECISION OF THE HONBLE SUPREME CO URT IN THE CASE OF GOETZE (INDIA) LTD VS CIT 284 ITR 323. 4. THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. C IT(A) AND STRONGLY RELIED UPON THE DECISION OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS PRUTHVI BROKERS & SHARES PVT. LTD 349 ITR 33 6. THE LD. CIT(A) WAS CONVINCED THAT THE RATIO LAID DOWN BY TH E HONBLE BOMBAY HIGH COURT IN THE CASE OF PRUTHVI BROKERS & SHARES PVT. LTD (SUPRA) SQUARELY APPLY ON THE FACTS OF THE CASE AND DIRECTE D THE AO TO DO NECESSARY VERIFICATION , TO EXAMINE THE CLAIM AND A LLOW RELIEF AS ADMISSIBLE. THE LD. CIT(A) ALSO DIRECTED THE ASSESS EE TO PRODUCE ALL THE RELEVANT DETAILS AND EVIDENCES TO THE AO IN SUPPORT OF ITS CLAIM. 5. AGGRIEVED BY THIS, THE REVENUE IS BEFORE US. TH E LD. DEPARTMENTAL REPRESENTATIVE RELIED ON THE DECISION OF THE HIGH COURT OF ORISSA IN THE CASE OF ORISSA RURAL HOUSING DEVELOPM ENT CORPN. LTD. VS ACIT 343 ITR 316. IT IS THE SAY OF THE LD. DR THAT THE LD. CIT(A) ERRED IN LAW IN ADMITTING THE ADDITIONAL CLAIM OF THE ASS ESSEE. 6. THE LD. COUNSEL FOR THE ASSESSEE REITERATED WHAT HAS BEEN STATED BEFORE THE LD. CIT(A). ITA NO.6198/M/2012 3 7. WE HAVE CAREFULLY PERUSED THE ORDERS OF THE LOWE R AUTHORITIES AND THE DECISIONS RELIED UPON BY THE RIVAL PARTIES. IT IS NOT IN DISPUTE THAT THE ASSESSEE DID NOT CLAIM DEDUCTION U/S. 35(2AB) OF TH E ACT IN ITS RETURN OF INCOME NEITHER IN ORIGINAL RETURN NOR BY REVISING T HE RETURN OF INCOME. THE CLAIM WAS MADE BY WAY OF A LETTER DT. 26.12.201 1. IT IS ALSO NOT IN DISPUTE THAT THE DECISION OF THE HONBLE SUPREME CO URT IN THE CASE OF GOETZ INDIA (SUPRA) DOES NOT ALLOW THE AO TO ENTERT AIN ANY CLAIM OTHERWISE THAN BY A RETURN OF INCOME. THE HONBLE BOMBAY HIGH COURT IN THE CASE OF PRUTHVI BROKERS & SHARES PVT. LTD ( SUPRA) HAS HELD AS UNDER: IT IS CLEAR TO US THAT THE SUPREME COURT DID NOT H OLD ANYTHING CONTRARY TO WHAT WAS HELD IN THE PREVIOUS JUDGMENTS TO THE EFFECT THAT EVEN IF A CLAIM IS NOT MADE BEFORE THE AO, IT CAN BE MADE BEFORE THE APPELLATE AUTHORITIES. THE JURISDICTION OF THE APPELLATE AUT HORITIES TO ENTERTAIN SUCH A CLAIM HAS NOT BE NEGATED BY THE SU PREME COURT IN THIS JUDGEMENT. IN FACT, THE SUPREME COUR T MADE IT CLEAR THAT THE ISSUE IN THE CASE WAS LIMITED TO THE POWER OF THE ASSESSING AUTHORITY AND THAT THE JUDGMENT DOES NOT IMPINGE ON THE POWER OF THE TRIBUNAL U/S. 254. 8. THIS DECISION OF THE JURISDICTIONAL HIGH COURT H AS AMPLY MADE IT CLEAR THAT THE ASSESSEE CAN MAKE AN ADDITIONAL CLAI M WITH THE APPELLATE AUTHORITY AND THE APPELLATE AUTHORITY IS WITHIN HIS POWER TO ADMIT THE ADDITIONAL CLAIM. THE LD. CIT(A) HAS VERY CORRECTL Y FOLLOWED THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT , THEREFORE, NO INTERFERENCE IS CALLED FOR. 9. BEFORE CLOSING , THE DECISION RELIED UPON BY THE LD. DR IS OF ORISSA HIGH COURT, WE HAVE CONFIRMED THE ORDER OF T HE LD. CIT(A) WHO HAS FOLLOWED THE DECISION OF THE JURISDICTIONAL HIG H COURT. ITA NO.6198/M/2012 4 10. IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 19.2.2014 . +$8 5 - * $ 9 :+ ; 19.2.2014 5 < SD/- SD/- (D.MANMOHAN ) (N.K. BILLAIYA) !'# / VICE PRESIDENT $* +, / ACCOUNTANT MEMBER MUMBAI; :+ DATED 19.2.2014 . . ./ RJ , SR. PS +$8 +$8 +$8 +$8 5 55 5 26& 26& 26& 26& =$&-6 =$&-6 =$&-6 =$&-6 / COPY OF THE ORDER FORWARDED TO : 1. .1 / THE APPELLANT 2. 23.1 / THE RESPONDENT. 3. > ( ) / THE CIT(A)- 4. > / CIT 5. &?< 26 , , / DR, ITAT, MUMBAI 6. < / GUARD FILE. +$8 +$8 +$8 +$8 / BY ORDER, 3&6 26 //TRUE COPY// ! !! ! / / / / / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI