M/S ASIA STAR COMPANY LTD, MUMBAI V. DY CIT CC 2 (3), MUMBAI

ITA 7667/MUM/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 1058 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-07-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2015-2016
• Appeal Filed On: 12-12-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BRAJENDRA KUMAR
• Keywords: Opportunity of being heard; Revised return
• Section: 139; 80G

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI SHRI SHAMIM YAHYA (AM) & SHRI AMARJIT SINGH (JM) I.T.A. NO. 7667/MUM/2019 (ASSESSMENT YEAR 2015-16) M/S. ASIAN STAR COMPANY LTD. 114, MITTAL COURT-C NARIMAN POINT MUMBAI-400 021. PAN : AAACA4856B VS. DCIT, CC - 2(3) OLD CGO BLDG ANNEXE, ROOM NO. 803, M.K. ROAD MUMBAI-20. ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY SHRI SUCHEK ANCHALIYA DEPARTMENT BY SHRI BRAJENDRA KUMAR DATE OF HEARING 24 .0 5 .2021 DATE OF PRONOUNCEMENT 12 .0 7 .2021 O R D E R PER SHAMIM YAHYA (AM) :- THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LEARNED CIT(A) DATED 29.11.2019 PERTAINING TO ASSESSMENT YE AR 2015-16. 2. GROUNDS OF APPEAL RAISED BY THE REVENUE READ AS UNDER :- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND LAW, THE LEARNED CIT(A) ERRED IN UPHOLDING THE STAND OF LD. ASSESSIN G OFFICER IN NOT ALLOWING ADDITIONAL DEDUCTION U/S 35AC OF THE ACT AMOUNTING TO RS. 6,46,000/- WITHOUT APPRECIATING THE FACT THAT THE ADDITIONAL C LAIM OF THE APPELLANT IS GENUINE ALONG WITH SUPPORTIVE DOCUMENT. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND LAW, THE LEARNED CIT(A) ERRED IN UPHOLDING THE STAND OF LD. ASSESSIN G OFFICER IN NOT ALLOWING ADDITIONAL DEDUCTION U/S 80G OF THE ACT AMOUNTING T O RS. 33,42,500/- WITHOUT APPRECIATING THE FACT THAT THE ADDITIONAL C LAIM OF THE APPELLANT IS GENUINE WITH SUPPORTIVE DOCUMENTS. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE HA S EFILED ITS RETURN OF INCOME ON 30.11.2015 DECLARING TOTAL INCOME AT RS. 57,39,40,480/-. THE ASSESSEE COMPANY IS IN THE BUSINESS OF TRADING OF M ANUFACTURING OF POLISHED DIAMONDS AND JEWELLERY. DURING ASSESSMENT PROCEEDIN GS ASSESSEE FILED LETTER DATED 24.03.2017 CLAIMING ADDITIONAL DEDUCTION U/S. 80G AND U/S. 35AC OF RS. 38,42,500/-AND RS. 6,46,000/ - RESPECTIVELY AGAINST THE TOTAL DEDUCTION M/S. ASIAN STAR COMPANY LTD. 2 CLAIMED OF RS. 5,00,000/- IN THE RETURN OF INCOME. THE AO REJECTED THE CLAIM ON THE BASIS OF THE DECISION OF GOETZE (INDIA) LTD VS. CIT 284 ITR 323(SC). 4. UPON ASSESSEES APPEAL LEARNED CIT(A) UPHELD THE ASSESSING OFFICERS ACTION BY CONCLUDING AS UNDER : IN VIEW OF THE ABOVE POSITION OF LAW, ON PLAIN REA DING OF THIS SECTION WHEREIN, IT HAS BEEN VERY CLEARLY MENTIONED THAT, T HE DEDUCTION UNDER THIS SECTION SHALL NOT BE ALLOWED IF THE ASSESSEE FAILED TO FILE A CERTIFICATE FOR THE PAYMENT MADE TO ABOVE-REFERRED AUTHORITIES ALONG WI TH HIS RETURN OF INCOME. IN THE PRESENT CASE ASSESSEE HAS NOT COMPLIED WITH SUB CLAUSE (A) OF SECTION 35AC(2). THUS, ASSESSEE HAS NOT FULFILLED CONDITION GIVEN IN SEC. 35AC(2)(A) OF THE ACT. FURTHER, THE AMOUNT WHICH HAS BEEN DONATED BY A PERSON IS ALLOWED TO BE CLAIMED AS A DEDUCTION UNDER SECTION 80G, AT THE TIME OF FILING HIS INCOME TAX RETURN. THE ASSESSEE HAS CLAIMED RS. 5,0 0,000/- U/S. 80G IN THE RETURN OF INCOME, WHICH HAS DULY ACCEPTED BY AO AS IN MENTIONED IS THE ASSESSMENT ORDER. SINCE ASSESSEE HAS NEITHER REVISED THE RETURN AS PE R PROVISION OF SECTION 139 NOR HAS SPECIFICALLY COMPLIED WITH PROVISION OF SEC TION 35AC(2), THE APPEAL IS REJECTED AND STAND OF AO IS UPHELD. 5. AGAINST THE ABOVE ORDER THE REVENUE IS IN APPEAL BEFORE US. 6. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE R ECORDS. WE FIND THAT THE ASSESSEES CLAIM HAS BEEN BASICALLY REJECTED ON THE PREMISE THAT ASSESSEE HAS NOT MADE THE CLAIM THROUGH A VALID RETURN. IN T HIS REGARD REVENUE AUTHORITIES HAVE RELIED UPON HON'BLE SUPREME COURT DECISION IN GOETZE (INDIA) LTD. VS. CIT (284 ITR 323). WE NOTE THAT IN THE SAM E ORDER HON'BLE SUPREME COURT HAS HELD THAT THE AFORESAID ORDER WILL NOT IM PINGE UPON ITAT POWER TO ADMIT A CLAIM OTHERWISE THAN BY REVISED RETURN. ACC ORDINGLY WE IN THE SUBSTANTIAL INTEREST OF JUSTICE DIRECT THE ASSESSIN G OFFICER TO ADJUDICATE THE SAID GROUND/CLAIM ON MERITS AFTER GIVING THE ASSESS EE PROPER OPPORTUNITY OF BEING HEARD. M/S. ASIAN STAR COMPANY LTD. 3 7. IN THE RESULT, APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 12.07.2021 SD/- SD/- (AMARJIT SINGH) (SHAMIM YAHYA) JUDICIAL MEMBER AC COUNTANT MEMBER MUMBAI; DATED : 12/07/2021 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( ASSISTANT REGISTRAR) PS ITAT, MUMBAI