ALLANASONS LTD, MUMBAI V. ITO 1(1)(1), MUMBAI

ITA 6741/MUM/2013

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4238 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 2 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-02-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 10-02-2016
• Assessment Year: 2003-2004
• Appeal Filed On: 21-11-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: APURVA R SHAH
• Keywords: Opportunity of being heard; Retrospective amendment; Question of law
• Section: 43B; 80HHC; 260A; 263

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES A, MUMBAI .. , , , BEFORE, SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI JOGINDER SINGH, JUDICIAL MEMBER ITA NO.6741/MUM/2013 ASSESSMENT YEAR: 2003-04 M/S ALLANASONS LIMITED. ALLANA HOUSE, 4, J.A. ALLAN MARG, COLABA, MUMBAI-400001 / VS. ITO-1(1)(1), RO. NO.534, 5 TH FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI-400020 ( !'#$ /ASSESSEE) ( % / REVENUE) PAN. NO. AAACA4533D !'#$ / ASSESSEE BY SHRI APURVA R. SHAH % / REVENUE BY SHRI YOGESH KAMAT & %'($) / DATE OF HEARING : 10/02/2016 ($) / DATE OF ORDER: 01/03/2016 / O R D E R PER JOGINDER SINGH (JUDICIAL MEMBER) THE ASSESSEE IS AGGRIEVED BY THE IMPUGNED ORDER D ATED 26/09/2013 OF THE LD. FIRST APPELLATE AUTHORITY, MU MBAI. ITA NO.6741/MUM/2013 ALLANASONS LTD. 2 THE FIRST GROUND RAISED BY THE ASSESSEE PERTAINS TO CLAIMED DEDUCTION OF RS.3,19,40,999/- U/S 80HHC OF THE ACT. THE CRUX OF ARGUMENT ADVANCED BY THE LD. COUNSEL FOR TH E ASSESSEE IS THAT 5 TH PROVISO TO SECTION 80HHC (3) OF THE ACT, INSERTED BY THE TAXATION LAWS (AMENDMENT) ACT 2005 WOULD BE APPLICABLE TO THE CASE OF THE ASSESSEE, WHEREBY, LOSS FROM EXPORT ACTIVITY IS TO BE SET OF AGAINST EXPORT INCE NTIVES AND FURTHER THE DECISION FROM HONBLE BOMBAY HIGH COURT , IN THE CASE OF ASSESSEE (ITA NO.6837 OF 2010) ORDER DATED 06/02/2015 AND ANOTHER DECISION IN THE CASE OF CIT VS M/S AVANI EXPORTS & ORS. (2015) TIOL-46-SC-IT ORDER DAT ED 30/03/2015 WAS NOT CONSIDERED BY THE LD. COMMISSION ER OF INCOME TAX (APPEALS). ON THE OTHER HAND, THE LD. D R, SHRI YOGESH KAMAT, DEFENDED THE CONCLUSION ARRIVED AT IN THE IMPUGNED ORDER BY ADDING THAT THE AFORESAID DECISIO NS WERE NOT CITED BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS). 2. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE FACTS , IN BRIEF, ARE THAT THE ASSESSEE IS AN EXPORTER OF VARIOUS MER CHANDISE AND ALSO A REGISTERED EXPORT HOUSE. ON THE TOTAL TU RNOVER FROM THE EXPORT AMOUNTING TO RS.956,78,17,636/-, TH E ASSESSEE CLAIMED DEDUCTION OF RS.6,72,64,009/-, U/S 80HHC OF THE ACT IN ITS RETURN OF INCOME. THE LD. ASSESSI NG OFFICER ASKED THE ASSESSEE AS TO SHOW CAUSE AS TO WHY THE C LAIMED DEDUCTION U/S 80HHC SHOULD BE GIVEN ON EXPORT INCEN TIVES, ITA NO.6741/MUM/2013 ALLANASONS LTD. 3 WHEN THERE IS A LOSS BEFORE EXPORT INCENTIVES. THE ASSESSEE EXPLAINED THAT IN VIEW OF TAXATION LAWS (AMENDMENT) ACT 2005, EXPORTERS ARE PERMITTED TO ADJUST INCENTIVES TO THE RESULT OF THEIR MANUFACTURING AND TRADING EXPORT AC TIVITIES U/S 80HHC(3) OF THE ACT. ON APPEAL, BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS), THE STAND TAK EN IN THE ASSESSMENT ORDER WAS AFFIRMED. THE ASSESSEE IS IN APPEAL BEFORE THIS TRIBUNAL. UNDER THE FACTS, NARRATED HER EINABOVE, WE FIND THAT IN THE CASE OF ASSESSEE, FOR ASSESSMEN T YEAR 2001-02 VIDE ORDER DATED 06/02/2015, (ITA NO.6837 O F 2010), THOUGH ON THE ISSUE OF INVOCATION OF REVISIO NAL JURISDICTION U/S 263 OF THE ACT, THE HONBLE HIGH C OURT HAS DELIBERATED UPON THE FIRST PROVISO TO SECTION 80HHC (3) OF THE ACT AND THE AMENDMENT TAXATION LAWS (AMENDMENT) ACT 2005 WITH RETROSPECTIVE EFFECT FROM 01/04/1992, INTER ALIA INCLUDED THE 5 TH PROVISO TO SECTION 80HCC(3) OF THE ACT HELD AS UND ER:- 1. THIS APPEAL BY THE REVENUE UNDER SECTION 260A OF TH E INCOME TAX ACT, 1961 (THE 'ACT') CHALLENGES THE ORDER DATE D 25 MARCH 2008 PASSED BY THE INCOME TAX APPELLATE TRIBUNAL (T HE TRIBUNAL'). 2. THE ASSESSMENT YEAR INVOLVED IS ASSESSMENT YEAR 2001-02. 3. THE APPEAL WAS ADMITTED ON 8 FEBRUARY 2011 ON TH E FOLLOWING QUESTION OF LAW : WHETHER ON THE FACTS AND THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE TRIBUNAL IS RIGHT IN HOLDING THAT THE ORDER OF THE ASSESSING OFFICER HAS GOT TO BE CONSIDERED AS HAVING BEEN MERGED IN THE ORDER OF THE COMMISSIONER OF INCOME TAX(APPEALS) WITHOUT APPRECIATING THE FAC T THAT THE ISSUE RAISED IN THE ORDER PASSED BY THE COMMISSIONER OF INCOME T AX U/S 263 OF THE I.T. ACT WAS NOT CONSIDERED BY THE ASSESSING OFFICER IN HIS ASSESSMENT ORDER ITA NO.6741/MUM/2013 ALLANASONS LTD. 4 AND WAS THEREFORE NOT A SUBJECT MATTER OF THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) AND HENCE THE DOCTRINE OF M ERGER RELIED UPON BY THE ITAT AND THE RESPONDENT IS NOT APPLICABLE TO TH IS CASE? 4. THE IMPUGNED ORDER OF THE TRIBUNAL ALLOWED THE ASSESSEE'S APPEAL ON THE SHORT POINT THAT THE COMMI SSIONER OF INCOME TAX COULD NOT HAVE EXERCISED JURISDICTION UN DER SECTION 263 OF THE ACT TO REVISE AN ORDER OF ASSESS MENT DATED 30 JANUARY 2004 WHEN THE SAME HAS BEEN A SUBJ ECT MATTER OF APPEAL BEFORE THE COMMISSIONER OF INCOME TAX (APPEALS). 5. BRIEFLY, THE FACTS ARE THAT THE RESPONDENT FILED ITS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2001-02 DECLARING AN INCOME RS.90,000/-. THIS WAS AFTER HAV ING CLAIMED A DEDUCTION OF RS.12.53 CRORES UNDER SECTIO N 80HHC OF THE ACT I.E. WITHOUT TAKING INTO ACCOUNT THE TRADIN G LOSS. THE ASSESSING OFFICER RESTRICTED THE CLAIM AFTER ADJUSTING THE TR ADING LOSS TO ITS MANUFACTURING PROFITS AND ADDING OF 90% EXPORT INCE NTIVES. THUS ON 30 JANUARY 2004 AN ASSESSMENT ORDER WAS PAS SED DETERMINING THE INCOME AT RS.1.76 CRORES AFTER ALLO WING DEDUCTION OF RS.4.67 CRORES UNDER SECTION 80HHC OF THE ACT. 6.THE ASSESSMENT ORDER DATED 30 JANUARY 2004 WAS CA RRIED IN APPEAL TO THE COMMISSIONER OF INCOME TAX (APPEAL S) (THE 'CIT(A)'). BY AN ORDER DATED 19 AUGUST 2004 THE CIT(A) UPHELD THE ORDER DATED 30 JANUARY 2014 OF THE ASSESSING OFFICE R. 7. ON 8 FEBRUARY 2005, THE COMMISSIONER OF INCOME T AX (THE CIT') ISSUED A NOTICE UNDER SECTION 263 OF THE ACT. THEREAFTER THE CIT BY ORDER DATED 14 MARCH 2005 HELD THAT THE RESP ONDENT IS NOT ENTITLED TO CLAIM DEDUCTION UNDER SECTION 80HHC OF THE ACT. THIS WAS BECAUSE THE NET BUSINESS RESULTS AFTER EXC LUSION OF EXPORT INCENTIVE WAS A LOSS. 8. BEING AGGRIEVED, THE RESPONDENT PREFERRED AN APP EAL TO THE TRIBUNAL. BY THE IMPUGNED ORDER THE TRIBUNAL HE LD THAT IN VIEW OF THE DOCTRINE OF MERGER, THE ASSESSMENT ORDE R DATED 30 JANUARY ITA NO.6741/MUM/2013 ALLANASONS LTD. 5 2004 OF THE ASSESSING OFFICER DID NOT EXIST AFTER T HE ORDER DATED 19 AUGUST 2004 WAS PASSED BY THE CIT(A). THUS THE IMPUGNED OR DER DATED 25 MARCH 2008 HELD THAT THE CIT , HAD NO JURISDICTION TO ISSUE NOTICE UNDER SECTION 263 OF THE 9. THE GRIEVANCE OF THE REVENUE AS ARTICULATED BY M R. SURESH KUMAR IS THAT ALTHOUGH THE ASSESSING OFFICER WHILE PASSING THE(ASSESSMENT ORDER DATED 30 JANUARY 2004 CONSIDERED THE RESPONDENT'S CLAIM FOR BENEFIT UNDER SECTION 80 HHC OF THE ACT YET IN APPEAL THE CIT(A) HAD NOT APPLIED HIS MIND AND CONS IDERED THE ISSUE OF EXPORT INCENTIVE BEING CONSIDERED FOR ARRI VING DEDUCTION AT SECTION 80 HHC OF THE ACT. THUS IT IS SUBMITTED EVE N IF AN APPEAL WAS FILED BY ASSESSEE FROM THE ORDER DATED 30 JANUARY 2 004 TO THE CIT(A), NO QUESTION OF MERGER INTO THE CIT(A)'S ORDER DATED 19 AUGUST 2004 CAN ARISE. 10. ON THE OTHER HAND, MR. JAIN, LEARNED COUNSEL AP PEARING FOR RESPONDENT-ASSESSEE POINTS THAT THE ISSUE OF EXPORT INCENTIVES WAS IN FACT SUBJECT OF CONSIDERATION BY THE CIT(A) WHILE CONSID ERING THE CLAIM FOR DEDUCTION UNDER SECTION 80HHC OF THE ACT AS THE ASSESSING OFFICER HAD CONSIDERED THE SAME IN HIS ORDER DATED 30 JANUA RY 2004. THEREFORE THE ISSUE STANDS MERGED INTO THE ORDER DA TED 19 AUGUST 2004 OF CIT(A). IN ANY CASE IT IS SUBMITTED THAT SECTION 80 HHC OF THE ACT STANDS AMENDED WITH RETROSPECTIVE EFFECT FROM 1 APR IL 1992 BY TAXATION LAWS(AMENDMENT) ACT, 2005. THIS AMENDME NT BY ADDITION OF THE 5 TH PROVISO TO SECTION 80HHC (3) OF THE ACT ALLOWS SETTING OFF OF LOSS AGAINST EXPORT INCENTIVES. IN T HESE CIRCUMSTANCES IT IS SUBMITTED THAT EVEN IF THE MATTER IS RESTORED FO R FRESH CONSIDERATION, THE ENTIRE EXERCISE WOULD BE ACADEMIC. 11. WE FIND THAT THE AMENDMENT BY TAXATION LAWS (AM ENDMENT) ACT, 2005,WITH RETROSPECTIVE EFFECT FROM 1 APRIL 1992 IN TERALIA INCLUDED THE 5 TH PROVISO TO SECTION 80HHC(3) OF THE ACT READS AS UN DER:- (PROVIDED ALSO THAT IN CASE THE COMPUTATION UNDER C LAUSE (A) OR CLAUSE (B) OR CLAUSE (C) OF THIS SUB-SECTION IS A L OSS, SUCH LOSS SHALL ITA NO.6741/MUM/2013 ALLANASONS LTD. 6 BE SET OFF AGAINST THE AMOUNT WHICH BEARS TO NINETY PET- CENT OF (A) ANY SUM REFERRED TO IN CLAUSE (IIIA) OR CLAUSE (II IB) OR CLAUSE (IIIC), AS THE CASE MAY BE, OR (B) ANY SUM REFERRED TO IN CLAUSE (IIID) OR CLAUSE (III C), AS THE CASE MAY BE, OF SECTION 28,AS APPLICABLE IN THE CASE OF AN ASSESSEE REFERRED TO IN THE SECOND OR THE THIRD OR THE FOURTH PROVISO, AS T HE CASE MAY BE, THE SAME PROPORTION AS THE EXPORT TURNOVER BEARS TO THE TOTAL TURNOVER OF THE BUSINESS CARRIED ON BY THE ASSESSEE .] THUS THIS AMENDMENT PERMITTED SET OFF OF LOSSES AGAIN ST EXPORT INCENTIVES. PRIOR TO THE ABOVE AMENDMENT IN TERMS O F THE FIRST PROVISO TO SECTION 80HHC(3) OF THE ACT ONLY PROFITS COULD BE IN CREASED BY THE EXPORT INCENTIVES. THE FIRST PROVISO TO SECTION 80HH C(3) AT ALL TIMES READ AS UNDER: 'PROVIDED THAT THE PROFITS COMPUTED UNDER CLAUSE (A ) OR CLAUSE (B) OR CLAUSE (C) OF THIS SUB-SECTION SHALL BE FURT HER INCREASED BY THE AMOUNT WHICH BEARS TO NINETY PER CENT OF ANY SU M REFERRED TO IN CLAUSE (IIIA) (NOT BEING PROFITS ON SALE OF A LI CENCE ACQUIRED FROM ANY OTHER PERSON), AND CLAUSES (IIIB) AND (III C) OF SECTION 28, THE SAME PROPORTION AS THE EXPORT TURNOVER BEARS TO THE TOTAL TURNOVER OF THE BUSINESS CARRIED ON BY THE ASSESSEE .' 12. IN VIEW OF THE ABOVE, WHEN THE ASSESSMENT ORDER WAS PASSED ABSENT THE ABOVE AMENDMENT OF 2005, IT WAS NOT OPEN TO THE ASSESSING OFFICER TO SET OFF LOSSES AGAINST EXPORT INCENTIVES . IN TERMS OF THE FIRST PROVISO, ONLY PROFITS COULD BE INCREASED BY E XPORT INCENTIVES AND THEREFORE THE ORDER OF ASSESSMENT DA TED 30 JANUARY 2004 WAS ERRONEOUS AND PREJUDICIAL TO THE I NTEREST BY THE REVENUE AND POWERS UNDER SECTION 263 OF THE ACT COU LD LEGITIMATELY BE EXERCISED BY THE CIT. HOWEVER THE OBJECTION IS T HAT AS THE ORDER DATED 30 JANUARY 2004 HAS MERGED INTO THE APPELLATE ORDER DATED 19 AUGUST 2004 THEREFORE, THE CIT WOULD CEASE TO HAVE JURISDI CTION UNDER SECTION 263 OF THE ACT. THE REVENUE CONTENDS IT HAS NOT MER GED AS THIS ITA NO.6741/MUM/2013 ALLANASONS LTD. 7 ISSUE WAS NOT CONSIDERED AND DECIDED IN APPEAL' AND IN SUPPORT PLACES RELIANCE UPON EXPLANATION-(C) TO SECTION 263 (1) OF THE ACT. FOR THE PURPOSES OF THIS APPEAL EVEN IF ASSUME (WITHOUT HAV ING EXAMINED THE SAME) THAT THE REVENUE IS CORRECT AND SET ASIDE THE IMPUGNED ORDER AND RESTORE THE MATTER TO ASSESSING OFFICER, YET THE ASSESSING OFFICER WILL WHILE RECOMPUTING THE BENEFI T AVAILABLE UNDER SECTION 80HHC OF THE ACT WILL HAVE TO EXTEND THE BENEFIT OF THE RETROSPECTIVE AMENDMENT RESULTING TO THE SAME RESULT AS FOUND IN THE ASSESSMENT ORDER DATED 30 JA NUARY 2004. IT IS RELEVANT TO NOTE THAT EVEN THE REVENUE DOES N OT DISPUTE THE APPLICABILITY OF RETROSPECTIVE AMENDMENT. 1P . -THE ABOVE VIEW, WE DO NOT DEEM IT NECESSARY TO ANSWER THE SUB STANTIAL QUESTION OF LAW AS FORMULATED PARTICULARLY IN VIEW OF THE RETROSPECTIVE AMENDMENT MAKING THE CHALLENGE ACADEMIC. 13. ACCORDINGLY, IN VIEW OF THE PECULIAR FACTS OF T HE PRESENT CASE, WE DISPOSE OF THE PRESENT APPEAL WITH THE ABO VE OBSERVATIONS. NO ORDER AS TO COSTS. IT IS ALSO NOTED THAT THE HONBLE APEX COURT IN THE CASE OF CIT VS AVANI EXPORTS VIDE ORDER DATED 30/03/2015, DULY CONSIDERED THE AMENDMENT IN SECTION 80HHC(3) WITH RETROSPECTIVE EFFECT FROM 01/04/1992 SUBSTITUTED TH E FOLLOWING IN THE DIRECTION OF THE HONBLE HIGH COURT:- HAVING SEEN THE TWIN CONDITIONS AND SINCE 80HHC BE NEFIT IS NOT AVAILABLE AFTER 04/04/2005, WE ARE SATISFIED THAT CASES OF EXPORTERS HAVING A TURNOVER BELOW AND THOS E ABOVE 10 CRORE. SHOULD BE TREATED SIMILARLY. THIS ORDER IS IN SUBSTITUTION OR THE JUDGMENT IN APPEAL. IN THE LIGHT OF THE ABOVE AND THE CLAIM OF THE ASSE SSEE THAT ITS TURNOVER IS MORE THAN 20 CRORES, WE DIRECT THE LD. ASSESSING ITA NO.6741/MUM/2013 ALLANASONS LTD. 8 OFFICER TO EXAMINE THE CLAIM OF THE ASSESSEE AND AF TER PROVIDING DUE OPPORTUNITY OF BEING HEARD TO THE ASS ESSEE DECIDE IN ACCORDANCE WITH LAW CONSIDERING THE AFORE SAID DECISIONS, THUS, THIS GROUND OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. 3. THE NEXT GROUND PERTAINS TO UPHOLDING DISALLOWA NCE OF 50% OF THE EXPENDITURE INCURRED ON FOREIGN TRAVE L OF THE SPOUSE OF THE DIRECTOR. THE CRUX OF ARGUMENT ON BEH ALF OF THE ASSESSEE IS THAT THE DISALLOWANCE IS EXCESSIVE, WHE REAS, THE LD. DR DEFENDED THE DISALLOWANCE. 3.1. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE LD. A SSESSING OFFICER NOTED THAT IN EARLIER YEAR, THE ASSESSEE EX PENDED RS.11,10,598/- ON THE FOREIGN TRAVEL EXPENSES OF TH E SPOUSE OF THE DIRECTOR, WHICH WERE ADDED TO THE INCOME OF THE ASSESSEE. ON THE SAME REASONING AND FOLLOWING VARI OUS DECISIONS, THE AMOUNT OF RS.9,73,594/- WHICH IS 50% OF THE EXPENSES WAS DISALLOWED. THE ASSESSEE CLAIMED THAT THE TRAVEL OF THE SPOUSE IS A NORMAL CUSTOM/BUSINESS PR ACTICE. ON APPEAL, THE LD. COMMISSIONER OF INCOME TAX (APPE ALS) AFFIRMED THE STAND OF THE LD. COMMISSIONER OF INCOM E TAX (APPEALS). THE HONBLE GUJARAT HIGH COURT IN CIT V S SAHIBAG ENTREPRENEUR PVT. LTD. HELD AS UNDER:- EXPENDITURE INCURRED ON FOREIGN TOUR OF WIFE OF A DIRECTOR WHO ACCOMPANIES HIM, IS NOT ALLOWABLE, WHE RE ITA NO.6741/MUM/2013 ALLANASONS LTD. 9 THERE IS NO EVIDENCE THAT HER VISIT WAS NECESSARY I N ORDER TO FACILITATE NEGOTIATION AT TOP LEVEL WITH F OREIGN CORPORATIONS. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE HAS NOT EXPLAINED AS TO HOW THE WIFE WAS NECESSARY IN FURTHERANCE OF BUSINESS INTEREST, HELPING THE DIRECTOR OF THE ASSESSEE FIRM . IT WAS CONTENDED THAT IT IS A CUSTOM THAT WIFE SHOULD ACCO MPANY WHILE TRAVELING ABROAD, NEITHER SUCH CUSTOM NOR ANY CASE LAW IN SUPPORT OF THE CLAIM WAS FURNISHED BEFORE US, TH EREFORE, IN THE ABSENCE OF ANY PLAUSIBLE REASONING WE AFFIRM TH E STAND OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS), THUS, THIS GROUND OF THE ASSESSEE IS HAVING NO MERIT, THEREFOR E, DISMISSED. 4. THE NEXT GROUND RAISED BY THE ASSESSEE PERTAINS TO CONFIRMING DISALLOWANCE OF PF DUE U/S 43B OF THE AC T BY CLAIMING THAT SUCH DUES WERE PAID DURING THE PREVIO US YEAR ITSELF I.E. WITHIN THE GRACE PERIOD. THE LD. DR, D EFENDED THE CONCLUSION. ON PERUSAL OF RECORD AND AFTER HEARING THE RIVAL SUBMISSIONS, WE ARE OF THE VIEW THAT AS PER PROVISI ONS OF SECTION 43B OF THE ACT ARE TO BE ALLOWED ONLY ON AC TUAL PAYMENT. THE LD. ASSESSING OFFICER IS DIRECTED THAT IF THE AMOUNT IS PAID WITHIN THE PRESCRIBED PERIOD INCLUDI NG GRACE PERIOD THEN THE SAME HAS TO BE ALLOWED, THEREFORE, THE ASSESSING OFFICER IS TO EXAMINE THE CLAIM OF THE AS SESSEE. THE ASSESSEE IS DIRECTED TO PRODUCE NECESSARY EVIDENCE FOR ITS ITA NO.6741/MUM/2013 ALLANASONS LTD. 10 CLAIM. THUS, THIS GROUND OF THE ASSESSEE IS ALSO AL LOWED FOR STATISTICAL PURPOSES. 5. THE LAST GROUND RAISED BY THE ASSESSEE PERTAINS TO NOT DIRECTING THE ASSESSING OFFICER THAT REVERSAL OF PR OVISION FOR GRATUITY CANNOT BE ADDED TO THE INCOME, WHILE SUCH PROVISIONS HAS NOT BEEN ALLOWED AS AN EXPENDITURE. DURING HEARING, IDENTICAL PLEA WAS RAISED BY THE LD. COUNS EL FOR THE ASSESSEE. THE LD. DR CONTENDED THAT IF THIS ISSUE I S ALLOWED THEN THE ASSESSING OFFICER SHOULD BE PROVIDED OPPOR TUNITY TO EXAMINE THE CLAIM OF THE ASSESSEE. CONSIDERING THE TOTALITY OF FACTS AND THE ARGUMENTS FROM BOTH SIDES, WE FIND TH AT IN COMPUTATION OF TOTAL INCOME, THE LD. ASSESSING OFFI CER HAS NOT DEDUCTED THE PROVISION FOR GRATUITY FOR REVERSE OF RS.2,97,462/- ALTHOUGH THE SAME WAS CLAIMED BY THE ASSESSEE IN ITS RETURN OF INCOME, THEREFORE, WE REM AND THIS ISSUE TO THE FILE OF THE LD. ASSESSING OFFICER TO E XAMINE THE CLAIM OF THE ASSESSEE AND DECIDE IN ACCORDANCE WITH LAW. THE ASSESSEE BE GIVEN OPPORTUNITY OF BEING HEARD WITH F URTHER LIBERTY TO FURNISH EVIDENCE, IF ANY, IN SUPPORT OF ITS CLAIM. THUS, THIS GROUND OF THE ASSESSEE IS ALSO ALLOWED F OR STATISTICAL PURPOSES. FINALLY, THE APPEAL OF THE ASSESSEE IS PARTLY ALLOW ED FOR STATISTICAL PURPOSES. ITA NO.6741/MUM/2013 ALLANASONS LTD. 11 THIS ORDER WAS PRONOUNCED IN THE OPEN COURT IN THE PRESENCE OF LD. REPRESENTATIVES FROM BOTH SIDES AT THE CONCLUSION OF THE HEARING ON 10/02/2016. SD/- SD/- ( G.S. PANNU ) (JOGINDER SINGH) '# / ACCOUNTANT MEMBER $# / JUDICIAL MEMBER & ' MUMBAI; + DATED : 01/03/2016 F{X~{T? P.S/. .. %$&'()(*& / COPY OF THE ORDER FORWARDED TO : 1. , -. / THE APPELLANT 2. /0-. / THE RESPONDENT. 3. 11 & 2$ ( , ) / THE CIT, MUMBAI. 4. 11 & 2$ / CIT(A)- , MUMBAI 5. 4%5/$! , 1, ),!6 , & ' / DR, ITAT, MUMBAI 6. 7'8' / GUARD FILE. / BY ORDER, 04$/$ //TRUE COPY// / (DY./ASSTT. REGISTRAR) , & ' / ITAT, MUMBAI