COTTON CLUB (INDIA), MUMBAI V. ASST CIT 18(1), MUMBAI

ITA 6687/MUM/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 75317 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-01-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 15-01-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 02-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Revised return

Judgement Text

, LH LHLH LH IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL C CC C BENCH, BENCH, BENCH, BENCH, MUMBAI MUMBAI MUMBAI MUMBAI , . , . , ! ! ! ! '# '# '# '# BEFORE BEFORE BEFORE BEFORE SHRI SHRI SHRI SHRI VIJAY PAL RAO, JM VIJAY PAL RAO, JM VIJAY PAL RAO, JM VIJAY PAL RAO, JM & & & & SHRI SHRI SHRI SHRI D. KARUNAKARA RAO D. KARUNAKARA RAO D. KARUNAKARA RAO D. KARUNAKARA RAO, AM , AM , AM , AM ./ I.T.A. NO.6687/MUM/2012 I.T.A. NO.6687/MUM/2012 I.T.A. NO.6687/MUM/2012 I.T.A. NO.6687/MUM/2012 ( $% $% $% $% & & & & / ASSESSMENT YEAR :2009-10) M/S COTTON CLUB (INDIA), 32, VIJAYA HOUSE, STATION ROAD, VIKHROLI (WEST), MUMBAI-400083 % % % % / VS. THE ASSISTANT COMMISSIONER OF INCOME TAX 18(1), PIRAMAL CHAMBERS, 1 ST FLOOR, JIJIBHOY LANE, LALBAUG, PAREL, MUMBAI #' ! ./ ( ./ PAN/GIR NO. :AACFC6675R ( ') / APPELLANT APPELLANT APPELLANT APPELLANT) .. ( *+') / RESPONDENT RESPONDENT RESPONDENT RESPONDENT) $% $%$% $% ,- ,- ,- ,- . / . / . / . / /ASSESSEE BY : SHRI NITESH JOSHI # # # # . / . / . / . / / REVENUE BY : SHRI RAVI PRAKASH % % % % . .. . - -- -! !! ! / DATE OF HEARING : 15 TH JANUARY 2014 01& 01& 01& 01& . .. .-! -! -! -! /DATE OF PRONOUNCEMENT: 22 ND JANUARY 2014 ' 2 / O R D E R PER : , . . / VIJAY PAL RAO, JM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER DATED 24.7.2012 OF COMMISSIONER OF INCOME TAX(APPEALS) FO R THE ASSESSMENT YEAR 2009-10. 2. THE ASSESSEE HAS RAISED THE VARIOUS GROUNDS IN T HIS APPEAL HOWEVER, THE ONLY ISSUE ARISES FOR OUR CONSIDERATION AND ADJ UDICATION IS WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE AUTHORI TIES BELOW ARE JUSTIFIED IN DISALLOWING THE CLAIM OF DEDUCTION OF ` 6,95,439 /- BEING PAYMENT OF EMPLOYEES CONTRIBUTION OF PF U/S 43B. WE HAVE HEARD THE LD. A.R AS WELL AS LD. D.R AND CONSIDERED THE RELEVANT MATERIAL ON RECORD. THE A.O HAS ITA NO.6687/M/2012 COTTON CLUB (INDIA) 2 DISALLOWED THE CLAIM ON THE GROUND THAT THE ASSESSE E HAS FAILED TO FURNISH ANY EVIDENCE THAT THE PAYMENT HAS BEEN MADE ON OR B EFORE THE DUE DATE. THE ASSESSEE THOUGH CLAIMED BEFORE THE A.O THAT THE PAYMENT HAS BEEN MADE BEFORE THE DUE DATE OF FILING THE RETURN OF IN COME AND THEREFORE, THE SAME CANNOT BE DISALLOWED U/S 43B. THE A.O DID NOT ENTERTAIN THE CLAIM OF THE ASSESSEE IN THE ABSENCE OF REVISED RETURN IN VI EW OF THE DECISION OF HONBLE SUPREME COURT IN CASE OF GOETZE (INDIA) LTD . VS CIT 204 CTR 182. ON APPEAL, THE CIT(A) CONFIRMED THE ACTION OF THE A .O BY RECORDING THE SIMILAR REASONS IN PARA 4 AS UNDER: 4. THE CASE HAS BEEN FIXED FOR HEARING AND NO ONE HAS APPEARED. THERE IS ALSO NO REQUEST FOR ADJOURNMENT. THEREFORE, I PROCEED TO DECIDE THE ISSUE ON THE BASIS OF MATERIA L AVAILABLE ON RECORD. THE CLAIM OF THE APPELLANT CANNOT BE ALLOWED FOR TH E FOLLOWING REASONS. (1) THERE WAS NO SUCH CLAIM IN RETURN OF INCOME AND THE RE HAS BEEN NO REVISED RETURN FILED BY THE APPELLANT. (2) THE DECISION OF SUPREME COURT IN THE CASE OF GOETZE INDIA LTD. MAKES IT VERY CLEAR THAT NO FRESH CLAIM CAN BE MADE BEFORE ASSESSING OFFICER WITHOUT FILING A REVISED R ETURN OF INCOME. (3) EVEN THE EVIDENCE FOR PROOF OF PAYMENT HAS NOT BEEN FILED DURING APPEAL PROCEEDINGS. 3. SINCE THE ISSUE HAS NOT BEEN EXAMINED BY THE AUT HORITIES BELOW BY CONSIDERING THE FACT WHETHER THE AMOUNT HAS BEEN DE POSITED BEFORE THE DUE DATE OF FILING RETURN OF INCOME OR NOT. THE A.O DISALLOWED THE CLAIM OF THE ASSESSEE ON TECHNICAL REASON AND SIMILARLY THE CIT(A) HAS ALSO DISALLOWED WITHOUT GIVING AN EFFECTIVE HEARING TO T HE ASSESSEE. IT IS PERTINENT TO NOTE THAT THE BAR OF ENTERTAINING THE FRESH CLAIM IS ONLY TO THE ITA NO.6687/M/2012 COTTON CLUB (INDIA) 3 POWER OF THE ASSESSING OFFICER AND NOT OF THE APPEL LATE AUTHORITY. ACCORDINGLY, IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN THE INTEREST OF JUSTICE WE SET ASIDE THIS ISSUE TO THE RECORD OF THE ASSESSING OFFICER FOR PROPER VERIFICATION AND EXAMINATION OF THE FACT OF DEPOSITING THE CONTRIBUTION IN THE PF BEFORE THE DUE DATE OF FILIN G THE RETURN AND THEN DECIDE THE SAME AS PER LAW. NEEDLESS TO SAY THE ASS ESSEE BE GIVEN AN OPPORTUNITY OF HEARING BEFORE PASSING THE FRESH ORD ER. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 22 ND DAY OF JANUARY 2014 SD/- SD/- ( . ) ! '# (D. KARUNAKARA RAO) ACCOUNTANT MEMBER ( ) $ '# (VIJAY PAL RAO) JUDICIAL MEMBER PLACE: MUMBAI : DATED: 22 ND JANUARY 2014 SUBODH COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR, ITAT, MUMBAI