ITO 1(1)-4, MUMBAI V. GOLCONDE PROPERTIES P.LTD, MUMBAI

ITA 6254/MUM/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 3938 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-08-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: G
• Next Hearing Date: 14-07-2016
• Assessment Year: 2011-2012
• Appeal Filed On: 09-10-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIVEK PERAMPURNADR
• Assessee Lawyers: NISHITH KHATRI

Judgement Text

, INCOME-TAX APPELLATE TRIBUNAL -GBENCH MUMBAI , , , BEFORE S/SHRI RAJENDRA,ACCOUNTANT MEMBER AND RAM LAL NEGI,JUDICIAL MEMBER ./ITA/6254/MUM/2014, /ASSESSMENT YEARS: 2011-12 INCOME TAX OFFICER-1(1)-4 ROOM NO.531 A/579 AAYAKAR BHAVAN MUMBAI-20. VS. M/S. GOLCONDE PROPERTIES PVT. LTD . 2 ND FLOOR, 5, ROSHERA BUILDING, DINSHAW VACCHA ROAD, CHURCHGATE MUMBAI-400 020. PAN:AACCG 4199 B ( /APPELLANT ) ( / RESPONDENT) /CO/103/MUM/2016 ARISING OUT OF 6254/MUM/14, /ASSESSMENT YEARS: 2011-12 M/S. GOLCONDE PROPERTIES PVT. LTD . MUMBAI-20. VS. INCOME TAX OFFICER-1(1)-4 MUMBAI-20. ( CROSS OBJECTOR / ) ( / RESPONDENT) REVENUE BY: SHRI VIVEK PERAMPURNA-DR ASSESSEE BY: SHRI NISHITH KHATRI / DATE OF HEARING: 04.08.2016 / DATE OF PRONOUNCEMENT: 04.08.2016 ,1961 254(1) ORDER U/S.254(1)OF THE INCOME-TAX ACT,1961(ACT) PER RAJENDRA, AM - CHALLENGING THE ORDER DT.30.07.2014 OF CIT(A)-1,MUM BAI,THE ASSESSING OFFICER (A.O.) AND THE ASSESSEE HAVE FILED APPEAL/CROSS OBJECTIONS FOR THE YEAR UNDER CONSIDERATION.ASSESSEE- COMPANY,FILED ITS RETURN OF INCOME ON 14.02.2013 DE CLARING TOTAL AT RS.NIL.THE AO COMPLET - ED ASSESSMENT,ON 13.12.113,U/.S143(3) OF THE ACT,DE TERMINING INCOME OF THE ASSESSEE AT RS.35.34 LAKHS. ITA/6254/MUM/2014 2. EFFECTIVE GROUND OF APPEAL IS ABOUT ALLOWING THE CL AIM MADE BY THE ASSESSEE U/S.80GGA OF THE ACT.DURING THE ASSESSMENT PROCEEDINGS,THE AO FOUND THAT THE ASSESSEE HAD MADE A DONATION OF RS.35.30 LAKHS, THAT IT HAD SHOWN RENTA L INCOME OF RS.49.70 LAKHS, THAT WHILE WORKING OUT THE INCOME FROM BUSINESS IT HAD REDUCED THE DONATION BY AN AMOUNT OF RS.30, 000/-, ONLY THAT IT HAD DEBITED DONATION OF RS.35. 30 LAKHS. HE DIRECTED THE ASSESSEE TO EXPLAIN AS TO WHY IT HAD NOT REDUCED THE FULL AMOUNT OF DON ATION WHILE COMPUTING THE INCOME, AS IT WAS NOT WHOLLY AND EXCLUSIVELY FOR THE PURPOSE OF B USINESS. THE ASSESSEE REPLIED THAT THE AMOUNT OF RS.35 LAKHS WAS DONATED TO AUROBINDO ASHR AM TRUST PONDICHERRY, THAT IT HAD BEEN CLAIMED AS DEDUCTION U/S. 35(1)(II) OF THE ACT. VID E ITS ORDER SHEET ENTRY NOTING 22.11.2013, HE ASKED THE ASSESSEE TO FURNISH SUBMISSIONS WITH REGA RD TO ALLOWABILITY OF DEDUCTION U/S.35(1) (II),AS IT HAD OFFERED RENTAL INCOME UNDER THE HEAD INCOME FROM HOUSE PROPERTY. IN ITS REPLY 6254/M/14 & C.O.103-GOLCONDE PROPERTIES 2 ,DTD.28.11.2013,THE ASSESSEE ARGUED THAT THE DEDUCT ION FOR DONATION WAS ALLOWABLE AT 100% , THAT SAME WAS TAKEN AS BUSINESS LOSS,THAT AS PER TH E PROVISIONS OF SECTION 71 OF THE ACT, BUSINESS LOSS COULD BE SET OFF AGAINST THE INCOME F ROM OTHER HEADS. THE ASSESSEE MADE SUBMISSION ABOUT THE CLAIM.HOWEVER, THE AO RELYING UPON THE CASE OF GOETZE(INDIA) LTD. (284ITR323)HELD THAT THE AO COULD NOT DECIDE THE IS SUE OF A NEW CLAIM OR AN ADDITIONAL CLAIM.FINALLY,HE MADE A DISALLOWANCE OF RS.35.30 LA KHS. 3 .AGGRIEVED BY THE ORDER OF AO, THE ASSESSEE PREFERR ED AN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY (FAA).BEFORE HIM,IT WAS ARGUED THAT IT HA D ORIGINALLY CLAIMED THE SAID DONATION U/S.35(1)OF THE ACT,THAT DURING THE COURSE OF ASSES SMENT PROCEEDING A REVISED CLAIM WAS MADE FOR CONSIDERING THE SAID DONATION AS EXEMPT U/S.80G GA, THAT THE AO HAD TAKEN A CONTRARY VIEW,THAT IT HAD IN ITS RETURN OF INCOME CLAIMED TH AT DONATION OF RS.35.00 LAKHS WAS MADE TO SRI AUROBINDO ASHRAM TRUST AS EXPENDITURE BY DEBITI NG THE P&L ACCOUNT, THAT THE AO APPLIED THE RATIO OF GOETZE (I) LTD.(SUPRA), THAT T HE CASE WAS COVERED BY THE JUDGMENT OF PRUTHVI BROKERS AND SAHREHOLDERS PVT. LTD. (349/336 ) OF THE HON'BLE BOMBAY HIGH COURT. AFTER CONSIDERING THE SUBMISSION OF THE ASSESSEE AN D THE ASSESSMENT ORDER, THE FAA HELD THAT IT WAS ON RECORD THAT DONATION OF RS.35.30 LAKHS WA S MADE TO SRI AUROBINDO ASHRAM TRUST, THAT DONATION WAS DEBITED TO P&L ACCOUNT FOR DEDUCT ION U/S.35(1) OF THE ACT, THAT THE ASSESSEE MADE A REVISED CLAIM FOR ALLOWING SAID AMOUNT U/S. 80GGA. REFERRING TO JUDGMENT OF PRUTHVI BROKERS AND SAHREHOLDERS PVT. LTD.(SUPRA), THE FAA HELD THAT FACTS AND CIRCUMSTANCES OF BOTH THE CASES WERE SIMILAR.HE ALLOWED THE APPEAL FILED BY THE ASSESSEE HOLDING THAT DEDUCTION OF DONATION OF RS.35.30 LAKHS WAS LIABLE TO BE ALLOWED U/S. 80GGA. 4. DURING THE COURSE OF HEARING BEFORE US THE DEPARTME NTAL REPRESENTATIVE (DR) SUPPORTED THE ORDER OF THE AO.THE AUTHORISED REPRESENTATIVE (AR) RELIED UPON THE CASE OF PRUTHVI BROKERS AND SAHREHOLDERS PVT. LTD. (SUPRA), AND REFERRED TO PG.NO.7 OF THE PAPER BOOK. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT THERE IS NO DOUBT ABOUT THE GENUINENESS OF THE DONATION T O THE ASHRAM,THAT THE ASSESSEE HAD CLAIMED THE DEDUCTION U/S.35(1) OF THE ACT,THAT DUR ING ASSESSMENT PROCEEDING A FRESH CLAIM U/S. 80GGA WAS MADE,THAT THE AO DID NOT ADMIT THE C LAIM,THAT THE FAA FOLLOWING THE JUDGMENT OF PRUTHVI BROKERS AND SAHREHOLDERS PVT. L TD.(SUPRA) ADMITTED THE CLAIM MADE BY THE ASSESSEE.IN OUR OPINION AFTER JUDGMENT OF PRUTH VI BROKERS AND SAHREHOLDERS PVT. LTD.(SUPRA),THE APPELLATE AUTHORITY CAN ADMIT NEW C LAIM IF IT IS SUPPORTED BY REQUISITE 6254/M/14 & C.O.103-GOLCONDE PROPERTIES 3 DOCUMENTS.THE FAA,EXERCISING HIS POWERS,HAS HELD TH AT THE AMOUNT IN QUESTION SHOULD BE TREATED FOR EXEMPTION U/S. 80GGA. IN OUR OPINION, T HERE IS NO LEGAL INFIRMITY IN HIS ORDER, SO, CONFIRMING THE SAME, WE ARE DECIDING THE EFFECTIVE GROUND OF APPEAL AGAINST THE AO. CO/103/MUM/2016 8. THE CO WAS FILED LATE BY 4 MONTHS AND 11 DAYS.IN TH E AFFIDAVIT FILED BY THE DIRECTOR OF THE COMPANY, IT IS STATED THAT INITIALLY THE MATTER WAS HANDLED BY A FIRM OF CA.S, LATER ON ANOTHER FIRM ADVISED IT TO FILE THE CO. IN OUR OPINION, THE REASON GIVEN BY THE ASSESSEE FOR FILING THE CO BELATEDLY IS NOT REASONABLE.HENCE, THE CO FILED BY THE ASSESSEE IS BEING DISMISSED. SECONDLY,WE HAVE ALREADY DISMISSED THE APPEAL OF AO AND HAVE DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE ON MERITS. AS A RESULT,APPEAL OF THE AO AND THE CO FILED BY TH E ASSESSEE STAND DISMISSED. . ORDER PRONOUNCED IN THE OPE N COURT ON 4 TH AUGUST,2016. 4 , 2016 SD/- SD/- ( / R.L.NEGI ) ( / RAJENDRA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 04 .08.2016. JV.SR.PS. / COPY OF THE ORDER FORWARDED TO : 1. APPELLANT / 2. RESPONDENT / 3. THE CONCERNED CIT(A)/ !' , 4. THE CONCERNED CIT / !' 5. DR BENCH, ITAT, MUMBAI / # , , . . . 6. GUARD FILE/ $% //TRUE COPY// / BY ORDER, / DY./ASST. REGISTRAR , /ITAT, MUMBAI.