M/s. Stella Industries Ltd., New Delhi V. DCIT,

ITA 6308/DEL/2013

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 6481 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-12-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: G
• Next Hearing Date: 01-12-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 28-11-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S K JAIN
• Assessee Lawyers: K R MANJANI
• Keywords: Revised return
• Section: 43B; 143(3); 80G

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER AND SHRI O.P. KANT, ACCOUNTANT MEMBER I.T.A. NO. 6308/DEL/2013 AY. 2009-10 M/S STELLA INDUSTRIES LTD., 402, KHASRA NO. 548, LAL SINGH BUILDING, MAIN VASANT KUNJ ROAD, MAHIPALPUR, NEW DELHI 110 037 (PAN: AAACS3243C) VS. DCIT, CIRCLE 9(1), NEW DELHI (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. K.R. MANJANI, ADV. DEPARTMENT BY : SH. S.K. JAIN, SR. DR ORDER PER H.S. SIDHU, JM ASSESSEE HAS FILED THE APPEAL AGAINST THE ORDER DATED 19 .9.2013 PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS)X I, NEW DELHI PERTAINING TO ASSESSMENT YEAR 2009-10. 2. THE GROUNDS RAISED BY THE ASSESSEE READ AS UNDER:- LD. A.O. HAS ERRED ON FACTS AS WELL AS IN LAW IN DENYI NG BENEFIT OF 80G, DEDUCTION U/S. 43B, TOTAL RS. 3,49,371/- AS SHO WN IN FACTS OF THE APPEAL MEMO FILED WITH C.I.T.(A) ON THE PLEA THAT IT WAS NOT CLAIMED IN RETURN EVEN THOUGH IT IS SETTLED L AW THAT ANY CLAIM MADE DURING THE COURSE OF ASSESSMENT PROCEEDINGS HAS TO BE CONSIDERED AND ALLOWED, IF IT IS PERMISSIBLE UNDER LA W. 2 IN THIS REGARD, LD. C.I. T.(A) HAS ALSO ERRED IN NOT A LLOWING CLAIM OF APPELLANT WHICH IS ALLOWABLE AS PER DECISIONS AND ARGU MENTS GIVEN IN LETTER DATED 19-09-2013 WHICH LD. C.I.T.(A ) REFUSED TO ACCEPT EVEN THOUGH IT WAS FILED IN RESPONSE TO HIS CONTRAR Y OBSERVATIONS INDICATED DURING THE COURSE OF APPELLATE PROCEEDINGS. LD. AO AS WELL AS C.I.T.(A) HAVE ERRED ON FACTS AS WELL AS IN LAW IN SUSTAINING THE ADDITION RS. 1,86,291/- OUT OF FOREIGN TRAVELLIN G EXPENSES. LD C.I.T.(A) HAS ERRED ON FACTS AS WELL AS IN LAW IN DI RECTING TO ALLOW CLAIM U/S. 115JA AFTER VERIFICATION EVEN THOUG H COMPLETE DETAILS IN THIS REGARD ARE ON RECORD AND IT IS THE EXP ERIENCE OF APPELLANT THAT LD. A.O. DOES NOT TAKE ACTION ON THIS . IT IS PRAYED THAT THE ABOVE ADDITIONS MAY KINDLY BE D ELETED AND DIRECTIONS TO ALLOW CREDIT OF TAX OF RS. 7,21,110/- DU E U/S. 115JA MAY KINDLY BE ISSUED. 3. THE BRIEF FACTS OF THE CASE ARE THAT ASSESSEE COMPANY IS ENGAGED IN THE BUSINESS. THE ASSESSEE FILED THE RETURN OF INCOME DECLA RING AN INCOME OF RS. 54,86,410/- ON 30.9.2009. THE RETURN WAS PROCESSED U/S. 143(1) OF THE I.T. ACT, 1961. THE CASE WAS SELECTED FOR SCRUTINY AND ASSESSM ENT WAS COMPLETED BY THE AO U/S. 143(3) OF THE I.T. ACT, 19 61 VIDE ORDER DATED 23.12.2011 AT AN INCOME OF RS. 63,26,300/- BY MAKING VARIOUS ADDITIONS. 4. AGAINST THE ASSESSMENT ORDER DATED 23.12.2011, ASSESSEE APPEALED BEFORE THE LD. CIT(A), WHO VIDE IMPUGNED ORDER DATE D 19.9.2013 HAS PARTLY ALLOWED THE APPEAL OF THE ASSESSEE. 3 5. AGGRIEVED WITH THE AFORESAID ORDER OF THE LD. CIT (A), ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 6. DURING THE HEARING, LD. COUNSEL OF THE ASSESSEE WITH REGARD TO CLAIM FOR 80G HAS SUBMITTED THAT THE CA OF THE ASSESSEE WHILE CO MPUTING THE INCOME NEITHER ADDED THE AMOUNT OF DONATION OF RS. 4, 01,100/- NOR DID HE CLAIM DONATION OF RS. 1,00,000/- IN RESPECT OF DONATION OF RS. 2,00,000/- ADMISSIBLE U/S. 80G AS INFORMED TO AO VIDE LETTER DATE D 9.11.2011. 6.1 LD. COUNSEL OF THE ASSESSEE FURTHER STATED THAT SINCE AO MADE THE ADDITION OF RS. 4,01,100/- HE SHOULD HAVE ALLOWED D EDUCTION OF RS. 1,00,000/- U/S. 80G ALSO. WITH REGARD TO DEDUCTION U /S. 43B, HE STATED THAT ASSESSEES CA WHILE COMPUTING INCOME WRONGLY ADDED RS. 1,97 ,450/- U/S. 43B IN RESPECT OF ESI AND PF EVEN THOUGH THESE PAID BEFORE DUE DATE OF FILING OF RETURN. HE STATED THAT THIS MISTAKE OCCURRED BECAUSE HE DID NOT TAKE INTO THE CONSIDERATION, THE 1 ST PROVISIO TO SECTION 43B. 6.2 WITH REGARD TO ADDITION OF TRAVELLING ALLOWAN CE IS CONCERNED, LD. COUNSEL OF THE ASSESSEE HAS SUBMITTED THAT LD. CIT(A) HAS ERRED IN SUSTAINING THE ADDITION OF RS. 1,86,291/- OUT OF FORE IGN TRAVELLING EXPENSES WHICH WAS ONLY FOR BUSINESS TRIP. 6.3 WITH REGARD TO DIRECTING TO ALLOW THE CLAIM U/S. 115JA AFTER VERIFICATION EVEN THOUGH COMPLETE DETAILS IN THIS REGARD ARE ON REC ORD AND IT IS THE EXPERIENCE OF ASSESSEE THAT THE AO DOES NOT TAKE ACTION O N THIS AND ADDITION IN THIS REGARD MAY BE DELETED AND CREDIT OF TAX OF RS. 7,21,110/- DUE U/S/ 115JA MAY BE ISSUED. 7. ON THE OTHER HAND, LD. DR RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW AND REQUESTED THAT SAME MAY BE UPHELD. 4 8. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE REL EVANT RECORDS AVAILABLE WITH US, ESPECIALLY THE ORDERS PASSED BY THE REVENUE AUTHORITIES. WE FIND CONSIDERABLE COGENCY IN THE CONTENTION OF THE A SSESSEE WITH REGARD TO CLAIM U/S. 80G OF THE I.T. ACT, 1961. THE ASSESSEE S CA WHILE COMPUTING THE INCOME NEITHER ADDED THE AMOUNT OF DONATION NOR DID HE CLAIM DONATION WHICH IS ADMISSIBLE U/S. 80G OF THE I.T. ACT, 1961. ON ASKING THE AO VIDE ORDER SHEET DATED 4.11.2011 THE ASSESSEE FILED ITS REPLY DATED 9.11.2011 AND SUBMITTED THAT THE ASSESSEE IS A LAYMAN HAVING HEAVY TURNOVER AND DOES NOT KNOW THE INCOME TAX INTRICACIES. THE CA DID NO T ADD BACK THE DONATION WHICH SHOULD BE ALLOWED TO THE ASSESSEE. THE AO DID NOT ACCEPT THE REQUEST OF THE ASSESSEE AND DISALLOW THE DONATION UN DER THE HEAD CHARITY AND DONATION AND ADDED BACK TO THE TOTAL INCOM E OF THE ASSESEE WHICH IN OUR CONSIDERED OPINION IS CONTRARY TO LAW, B ECAUSE THERE IS NO NEED TO FILE THE REVISED RETURN AND DURING THE COURSE OF A SSESSMENT PROCEEDINGS THE ASSESSEE HAS REQUESTED VIDE LETTER DATED 19.11.2011 A ND CLAIMED THE DEDUCTION OF DONATION WHICH HAS NOT BEEN FOUND FALSE/ F ORGED OR WRONG BY THE AO. WE ALSO FIND THAT THE ASSESSEE HAS MADE THE PAY MENT OF DONATION IN DISPUTE TO BENGAR SHIKSHA SAMITI WHICH IS APPROVED UNDER SECTION 80G OF THE I.T. ACT AND ASSESSEE HAS ALSO PRODUCED THE RECEIPT OF THE SAME WHICH HAS NOT BEEN FOUND FALSE, BOGUS BY THE AO. THEREFORE, IN OUR CONSIDERED VIEW, THE ASSESSEE IS ENTITLED FOR THE DONATION CLAIMED B Y THE ASSESSEE AND 5 ACCORDINGLY, WE DIRECT THE AO TO ALLOW THE BENEFIT OF DONATION IN DISPUTE CLAIMED BY THE ASSESSEE U/S. 80G OF THE I.T. ACT, 1961. 8.1. WITH REGARD TO CLAIM OF 43B OF THE ACT IS CONCERNE D, WE NOTE THAT IN RESPECT OF PAYMENT OF ESI AND PF IS CONCERNED, THE ASSESSEE HAS NOT FURNISHED ANY EVIDENCE EITHER BEFORE THE AO OR BEFORE THE LD. CIT(A), WHICH IS VERY MUCH ESSENTIAL TO CLAIM IN DISPUTE. IN THE INT EREST OF JUSTICE, WE REMIT BACK THE ISSUE IN DISPUTE TO THE FILE OF THE AO TO CONSIDER THE SAME AFRESH AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HE ARD AND ASSESSEE IS DIRECTED TO FURNISH THE EVIDENCE BEFORE THE AO TO SUBSTA NTIATE HIS CLAIM. 8.2 WITH REGARD TO ADDITION OF TRAVELLING ALLOWANCE IS CONCERNED, WE NOTE THAT LD. CIT(A) HAS OBSERVED THAT NO DETAIL IN THE SH APE OF COPIES OF TICKETS, BILLS AND VOUCHERS OR EXPENSES WERE FILED BEFORE THE A O. HOWEVER, THE ASSESSEE HAS SUBMITTED THE DETAILS OF FOREIGN TRAVELLING A LONGWITH THE DETAILS OF COUNTRY VISITED, TICKET NUMBER, DATE OF VISIT, AMOU NT OF AIR FARE, DETAILS OF OTHER INCIDENTAL EXPENSES AND THE PERIOD OF STAY AND FILED THE AFFIDAVIT BEFORE THE AO STATING THEREIN THAT THE PURPOSE OF VI SIT WAS BUSINESS TRIP. THEREFORE, LD. CIT(A) HAS RESTRICTED THE DISALLOWANCE AT RS. 1,86,291/- (1/3 RD OF RS. 5,58,872/) AS AGAINST RS. 4,32,790/- AND ADDED BACK IN THE HANDS OF THE ASSESSEE. KEEPING IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE, WE ARE OF THE VIEW THAT THE ISSUE REQUIRES FRE SH ADJUDICATION BECAUSE THE ASSESSEE HAVE NOT PRODUCED EVIDENCE BEFORE TH E AO AND AO HAS NOT AFFORDED ANY OPPORTUNITY TO VERIFY THE DETAI LS/ EVIDENCES. ACCORDINGLY, THE ISSUE IN DISPUTE IS REMITTED BACK TO FI LE OF THE AO FOR FRESH ADJUDICATION, AFTER GIVING ADEQUATE OPPORTUNITY OF B EING HEARD TO THE ASSESSEE. ASSESSEE IS ALSO DIRECTED TO FULLY COOPERATE WITH T HE AO AND PRODUCE ALL THE DETAILS/ EVIDENCES BEFORE HIM. 6 8.4 WITH REGARD TO DIRECTING TO ALLOW THE CLAIM U/S. 115JA AFTER VERIFICATION IS CONCERNED, WE FIND THAT THE LD. CIT(A) HAS GIVEN A CORRECT FINDING BECAUSE THE ALLOWABILITY OF CREDIT OF TAX U/S. 115 JA REQUIRES VERIFICATION. HENCE, WE UPHOLD THE DECISION OF THE LD. CIT(A) ON THI S ISSUE WHEREIN HE DIRECTED THE AO TO MAKE NECESSARY VERIFICATION AND ALLOW THE CREDIT AS PER LAW. ACCORDINGLY, THE GROUND RAISED BY THE ASSESSEE STANDS D ISMISSED. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE PARTL Y ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 16/12/2016. SD/- SD/- [O.P. KANT] [H.S. SIDHU] ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 16/12/2016 SRBHATNAGAR COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR, ITAT TRUE COPY BY OR DER, ASSISTANT REGISTRAR, ITAT, DELHI BENCHES