Dinesh Kumar Gupta, Aligarh V. A.C.I.T. Circle-(2), Agra

ITA 77/AGR/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 62836 (ITAT-AGRA)
• Duration Of Justice: 1 year(s) 5 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-08-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 09-08-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 07-03-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A K SHARMA
• Assessee Lawyers: RAKESH GUPTA
• Keywords: Revised return
• Section: 10(14); 27; 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI A.L. GEHLOT, ACCOUNTANT MEMBER ITA NO. 77/AGRA/2011 ASSTT. YEAR : 2006-07 DINESH KUMAR GUPTA, VS. A.C.I.T., CIRCLE-2, 13, KAVERI VIHAR, PHASE-I, AGRA. SHAMSHABAD ROAD, AGRA. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI RAKESH GUPTA, ADVOCATE. RESPONDENT BY : SHRI A.K. SHARMA, JR. D.R. DATE OF HEARING : 09.08.2012 DATE OF PRONOUNCEMENT OF ORDER : 23.08.2012 ORDER PER BHAVNESH SAINI, J.M.: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF LD. CIT(A)-I, AGRA DATED 24.11.2010 FOR THE ASSESSMENT YEAR 2006- 07 ON THE FOLLOWING GROUNDS : 1. BECAUSE THE REJECTION OF THE CONVEYANCE ALLOWAN CE AND ADDITIONAL CONVEYANCE ALLOWANCE GRANTED BY THE EMPL OYER TO MEET THE EXPENSES INCURRED NECESSARILY AND EXCLUSIVELY IN PE RFORMANCE OF DUTIES AS EXEMPT UNDER SUB-CLAUSE (I) OF CLAUSE 14 OF SECTION 10 OF I.T. ACT, 1961, IS ILLEGAL AND UNJUSTIFIED. 2. BECAUSE THE REJECTION OF CLAIM OF INTEREST, DED UCTIBLE FROM THE INCOME UNDER SECTION 24(B) OF I.T. ACT, 1961, IS QU ITE ILLEGAL AND UNJUSTIFIED. ITA NO. 77/AGRA/2011 2 2. WE HAVE HEARD THE LD. REPRESENTATIVES OF BOTH TH E PARTIES, PERUSED THE FINDINGS OF THE AUTHORITIES BELOW AND CONSIDERED TH E MATERIAL AVAILABLE ON RECORD. 3. THE FACTS OF THE CASE ARE THAT THE ASSESSEE IS A DEVELOPMENT OFFICER OF LIC OF INDIA. THE AO IN THE REASONS FOR REOPENING OF AS SESSMENT NOTED THAT THE ASSESSEE HAS CLAIMED EXEMPTION OF CONVEYANCE ALLOWANCE AMOUN TING TO RS.2,06,284/-, BUT NEITHER THE EMPLOYER HAS SHOWN EXEMPTION ON ACCOUNT OF CONVEYANCE ALLOWANCE IN FORM NO. 16 NOR THE ASSESSEE HAS FILED ANY CERTIFIC ATE OF LIC IN THIS REGARD. THE ASSESSEE DESPITE GIVING OPPORTUNITY HAS NOT FILED A NY DOCUMENTARY EVIDENCE REGARDING ACTUAL EXPENDITURE INCURRED ON CONVEYANCE WHOLLY, NECESSARILY AND EXCLUSIVELY IN PERFORMANCE OF DUTIES OF AN OFFICE O R EMPLOYMENT OF PROFIT AS PER PROVISIONS OF SECTION 10(14) READ WITH RULE 2BB(1)( C) OF THE IT RULES. THE AO, THEREFORE, HELD THAT THE ASSESSEE DID NOT PRODUCE A NY EVIDENCE TO PROVE EXPENSES WHOLLY, NECESSARILY AND EXCLUSIVELY INCURRED ON CON VEYANCE IN PERFORMANCE OF DUTIES. SINCE THE CLAIM OF THE ASSESSEE WAS NOT SUB STANTIATED THROUGH ANY EVIDENCE, THEREFORE, THE ADDITION WAS MADE OF RS.2,06,284/-. FURTHER, THE ASSESSEE WAS REQUIRED TO PRODUCE THE EVIDENCE FOR CLAIMING OF EX EMPTION OF INTEREST U/S. 24(B). ON THIS QUERY ALSO, THE ASSESSEE COULD NOT PRODUCE ANY EVIDENCE REGARDING INTEREST PAID BY HIM. ACCORDINGLY, THE AO DISALLOWED RS.41,5 65/-. ITA NO. 77/AGRA/2011 3 3.1 THE ASSESSEE CHALLENGED BOTH THE ADDITIONS BEF ORE THE LD. CIT(A) AND SAME FACTS WERE REITERATED AND IT WAS SUBMITTED THAT THE CONVEYANCE ALLOWANCE WAS INCURRED FOR THE PURPOSE OF DUTIES AND RELIED UPON THE DECISION OF RAJASTHAN HIGH COURT IN THE CASE OF LIC VS. UNION OF INDIA, 260 IT R 41. IT WAS ALSO SUBMITTED THAT THE ASSESSEE IS ENTITLED FOR DEDUCTION FROM INCOME U/S. 24(B), AS THE PROPERTY HAD BEEN ACQUIRED ON DATED 28.02.2005 AS IS EVIDENT FRO M THE ALLOTMENT LETTER. THE LD. CIT(A), CONSIDERING THE EXPLANATION OF THE ASSESSEE AND THE PROVISIONS OF SECTION 10(14)(I) READ WITH RULE 2BB(1)(C), CONFIRMED THE A DDITION ON ACCOUNT OF CLAIM OF EXEMPTION OF CONVEYANCE ALLOWANCE BECAUSE NO EVIDEN CE IN THIS REGARD HAS BEEN FURNISHED. THE LD. CIT(A) ALSO REFERRED TO BOARDS CIRCULAR TO SAY THAT SAME CONVEYANCE ALLOWANCE IS NOT EXEMPT UNLESS THE CRITE RIA LAID DOWN IN THE ABOVE SECTION/RULE ARE FULLY MET TO THE ENTIRE SATISFACTI ON OF THE AO. THE LD. CIT(A) ALSO NOTED THAT THE DECISION IN THE CASE OF LIC VS. UNIO N OF INDIA (SUPRA) HAS PROVIDED THAT DEVELOPMENT OFFICERS IN THE LIC ARE ENTITLED T O CLAIM EXEMPTION U/S. 10(14) IN RESPECT OF CONVEYANCE ALLOWANCE / ADDL. CONVEYANCE ALLOWANCE BY SATISFYING THE CONDITIONS THAT SUCH ALLOWANCE HAVE BEEN SPENT FOR THE PURPOSE FOR WHICH THEY WERE GIVEN WHOLLY, NECESSARILY AND EXCLUSIVELY IN P ERFORMANCE OF DUTIES. THE LD. CIT(A) ALSO OBSERVED THAT WHILE RENDERING THE ABOVE DECISION, HONBLE HIGH COURT TOOK INTO CONSIDERATION CERTIFICATE GIVEN BY THE LI C OF THE MINIMUM AMOUNT, WHICH THE LIC CERTIFIES THAT IT WAS ACTUALLY SPENT BY THE DEVELOPMENT OFFICERS IN ITA NO. 77/AGRA/2011 4 PERFORMANCE OF THEIR DUTIES. THE LD. CIT(A), THEREF ORE, NOTED THAT AT LEAST THE ASSESSEE SHOULD HAVE FURNISHED THE CERTIFICATE FROM LIC FOR CLAIMING EXEMPTION FROM CONVEYANCE ALLOWANCE WHICH WAS ALSO NOT FILED IN THIS CASE. THEREFORE, THE ASSESSEE FAILED TO SATISFY THE REQUIREMENT OF ABOVE PROVISION TO PROVE THAT THE AMOUNTS WERE ACTUALLY INCURRED IN PERFORMANCE OF DU TIES. THE LD. CIT(A), THEREFORE, HELD THAT SINCE THE ASSESSEE COULD NOT M EET THE CRITERIA OF SECTION 10(14) READ WITH RULE 2BB(1)(C) TO THE SATISFACTION OF THE AO, THEREFORE, THE ASSESSEE IS NOT ENTITLED FOR ANY RELIEF AND, THEREFORE, DISMISS ED THE APPEAL OF THE ASSESSEE. 3.2 AS REGARDS THE ADDITION OF RS.41,565/- U/S. 24( B) OF THE IT ACT, THE LD. CIT(A) NOTED THAT NO DEDUCTION WAS ALLOWED BY THE A O U/S. 24(B) AND THEN THIS AMOUNT WAS AGAIN ADDED IN THE GROSS SALARY OF THE A SSESSEE. FURTHER, IT WAS CLAIMED THAT THE ASSESSEE ACQUIRED HIG HOUSE NO. 159/16A, A VAS VIKAS COLONY, SIKANDARA, AGRA ON 17.02.2005 AS CERTIFIED BY ALLOTMENT LETTER DATED 28.02.2005 AND AS SUCH, THE DEDUCTION CLAIMED BY THE ASSESSEE DESERVES TO B E ALLOWED. THE LD. CIT(A), CONSIDERING THE ALLOWANCE OF DEDUCTION U/S. 24(B), ELABORATELY DISCUSSED THE ISSUE AND REJECTED THE CLAIM OF THE ASSESSEE. HIS FINDING S ON THIS ISSUE FROM PARA 8.3 TO 8.5 ARE REPRODUCED AS UNDER : 8.3. NOW COMING TO THE QUESTION OF ALLOWING DEDUCT ION U/S 24(B) ON ACCOUNT OF PAYMENT OF INTEREST OF RS.41,56 5/-ON BORROWED ITA NO. 77/AGRA/2011 5 CAPITAL FOR PURCHASE OF HOUSE PROPERTY. IN RESPECT OF THIS CLAIM MADE IN THE APPELLATE PROCEEDING AGAIN, IT IS IMPORTANT TO NOTE THAT THE APPELLANT HIMSELF DURING THE COURSE OF ASSESSMENT P ROCEEDING CONCEDED THAT THIS AMOUNT IS NOT ALLOWABLE U/S 24{B ). THEREFORE, IN HIS LETTER DATED 10.12.2007 FILED DURING THE COURSE OF ASSESSMENT PROCEEDING, HE SUBMITTED BEFORE THE AO THAT HE IS F ILING REVISED RETURN BY MAKING TWO ADDITIONS OF RS.41,279/- AND RS. 41,5 65/- IN THE INCOME SHOWN IN THE RETURN OF INCOME FILED ON 31.07.2006 B ECAUSE OF THE FOLLOWING REASONS:- (I) THE SAVING BANK INTEREST OF RS 41279/- WAS NOT INCLUDED IN THE ORIGINAL RETURN OF INCOME AND THIS FACT HAS COME TO THE KNOWLEDGE OF THE ASSESSEE RECENTLY. (II) THE DEDUCTION ON THE HOUSING LOAN TAKEN FOR RS .41565/-{INTEREST AMOUNT) WAS WRONGLY CLAIMED BY THE ASSESSEE IN VIEW OF THE FACT THAT THE ACTUAL POSSESSION AND COMPLETION OF HOUSE PROPE RTY WAS DONE IN THE SUBSEQUENT ASSESSMENT YEAR. DURING APPEAL PROCEEDING BEFORE ME, THE LD. AR FURT HER SUBMITTED THAT HE FILED REVISED RETURN ON 24/12/200 7. AS PER THIS RETURN, INCOME OF THE APPELLANT FROM SALARY AS PER FORM NO. 16 IS RS.8,47,436/-. OUT OF WHICH RS.2,06,286/- ARE EXEMP T INCOME U/S 10(14) OF THE IT ACT. AS SUCH REMAINING RS.6,40,593 AND RS. 42,934/- AS INTEREST INCOME HAD TO BE ADDED, AMOUNTING TO RS . 6,83,527/-. OUT OF WHICH RS.1 ,00,457/- ARE TO BE DEDUCTED U NDER CHAPTER VIA, AS SUCH TOTAL INCOME REMAINS RS.5,83,0701/- ON WHICH T AX COMES TO RS. 1,27,419. AS TDS RS.1,66.500/- IS MORE THAN TAX PAY ABLE OF RS.1,27,419/- AS SUCH RESULTING INTO A REFUND OF RS . 39,081/-. IN THIS SUBMISSION ALSO, NOTHING HAS BEEN STATED AB OUT PROVIDING DEDUCTION U/S 24{B) AND AGAIN THE PLEA IS BEING TAKEN BEFORE ME THAT DEDUCTION U/S 24(B) SHOULD BE PROVID ED FOR PAYMENT OF THIS INTEREST. IT APPEARS THAT THE APPELLANT AS WEL L AS THE LD. AR IS NOT VERY CLEAR WHETHER THE APPELLANT IS ELIGIBLE FOR TH E DEDUCTION U/S 24{B) FOR PAYMENT OF THIS INTEREST. FIRST, HE CLAIMED DED UCTION IN THE ORIGINAL RETURN, AND THEN HE WITHDREW HIS CLAIM IN THE REVIS ED RETURN BECAUSE ACTUAL POSSESSION OF THE HOUSE WAS NOT TAKEN. DURIN G THE APPEAL PROCEEDING AT ONE PLACE, HE FIRST ARGUED THAT HIS I NCOME AS PER THE REVISED RETURN FILED ON 24/12/2007 SHOULD BE ACCEPT ED IN WHICH HE ITA NO. 77/AGRA/2011 6 WITHDREW HIS CLAIM FOR DEDUCTION OF INTEREST PAYMEN T U/S 24(B). NOW, AGAIN HE IS MAKING CLAIM FOR PROVIDING DEDUCTION UN DER SECTION 24(B) ON ACCOUNT OF PAYMENT OF INTEREST OF RS. 41,565/- T AKING THE PLEA THAT THE PROPERTY HAD BEEN ACQUIRED ON THE DATE 28.02.20 05 AS EVIDENT FROM THE ALLOTMENT LETTER. IN THE OPINION OF THE LD . AR, ACQUISITION DOES NOT REQUIRE THE PHYSICAL POSSESSION OF THE PRO PERTY OR EXECUTION OF SALE DEED. 8.4 TO RESOLVE THE ISSUE OF PROVIDING DEDUCTION TO THE APPELLANT U/S 24(B) FOR INTEREST PAID BY HIM, I HAVE GONE THR OUGH THE PROVISIONS OF CHAPTER IV(C) OF THE INCOME-TAX ACT RELATING TO 'INCOME FROM HOUSE PROPERTY'. AS PER THESE PROVISIONS, INCOME FR OM ONLY THOSE HOUSE PROPERTY IS CHARGEABLE TO TAX FOR WHICH THE A PPELLANT IS OWNER AND THAT IS REASONABLY BE EXPECTED TO LET OR LET OU T DURING THE YEAR. AS PER SECTION 23(2) READ WITH SECTION 23(4), FOR ONLY ONE SELF OCCUPIED PROPERTY (OF WHICH THE ASSESSEE IS OWNER ALSO), THE ANNUAL VALUE OF THE PROPERTY IS TAKEN TO BE 'NIL'. 8.5 AS PER THE SUBMISSION MADE BY THE APPELLANT BEF ORE THE AO DURING THE COURSE OF ASSESSMENT PROCEEDING VIDE LET TER DATED 27.09.2007, HE OWNED ONE RESIDENTIAL HOUSE AT 13, K AVERI VIHAR. SAMSABAD ROAD, AGRA WHICH WAS PURCHASED IN FINANCIA L YEAR 1997-98 AND HE RESIDES IN THIS HOUSE. IN ADDITION TO THE HO USE AT SAMSABAD ROAD, HE GOT ALLOTMENT OF ANOTHER HOUSE NO. 159/16A , AVAS VIKAS PARISHAD , SIKANDRA , AGRA AND FOR PAYMENT OF INTER EST ON THE LOAN TAKEN TOWARDS MAKING PAYMENT OF INSTALLMENTS FOR TH IS HOUSE, HE IS CLAIMING DEDUCTION OF INTEREST U/S 24(B). AS PER HI S OWN ADMISSION MADE DURING THE COURSE OF ASSESSMENT PROCEEDING VID E LETTER DATED 10/12/2007, THE ACTUAL POSSESSION AND COMPLETION OF HOUSE PROPERTY WAS DONE IN THE SUBSEQUENT ASSESSMENT YEAR. AS THIS HOUSE PROPERTY IS THE SECOND HOUSE PROPERTY PURCHASED BY THE APPELLAN T, ITS ANNUAL VALUE FOR THE PURPOSE OF TAXATION WOULD BE DETERMIN ED AS PER THE SECTION 23(1) BECAUSE THE FIRST HOUSE IN WHICH HE I S RESIDING, THE ANNUAL VALUE IS ALREADY TAKEN AS 'NIL'. FOR DETERMI NING THE ANNUAL VALUE OF THIS HOUSE PROPERTY, THE APPELLANT SHOULD BE OWNER OF THE PROPERTY AND ALSO THE PROPERTY SHOULD BE IN THE CON DITION OF BEING LET. OWNER OF HOUSE PROPERTY IS DEFINED IN SECTION 27 OF THE INCOME-TAX ACT 1961. AS PER THIS DEFINITION, FOR BEING OWNER O F A HOUSE PROPERTY AND ABLE TO LET IT OUT, THE ASSESSEE SHOULD BE IN P OSSESSION OF THE PROPERTY. EVEN FOR RESIDING IN THE HOUSE PROPERTY I N CASE OF SELF ITA NO. 77/AGRA/2011 7 OCCUPIED PROPERTY, THE PROPERTY SHOULD BE IN THE PO SSESSION OF THE ASSESSEE. THE APPELLANT HAS ALREADY CONCEDED THAT T HE ACTUAL POSSESSION OF THIS PROPERTY WAS TAKEN BY HIM IN SUB SEQUENT ASSESSMENT YEAR AND THEREFORE, HE WITHDREW HIS CLAI M FOR DEDUCTION U/S 24(B) BUT NOW ONLY FOR SAKE OF ARGUMENT, THE LD . AR IS AGAIN RAISING THE ISSUE OF CLAIMING DEDUCTION U/S 24(B). SINCE HE PROPERTY IS NOT IN THE POSSESSION OF THE APPELLANT, HE CAN NEIT HER RESIDE IN IT NOR HE CAN LET IT OUT AND THEREFORE ITS ANNUAL TAXABLE VALUE UNDER THE HEAD 'INCOME FROM HOUSE PROPERTY CANNOT BE DETERMINED. SINCE THERE IS NO ANNUAL TAXABLE VALUE OF THIS PROPERTY, NO DEDUCTION U/S 24(B) CAN BE PROVIDED AGAINST THIS PROPERTY. 4. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW. HE HAS RELIED UPON THE ORDER OF ITAT, AGRA BENCH IN THE CASE OF ASHOK KUMAR SHARMA VS. ACIT IN ITA NO. 276/AGRA/200 6 DATED 23.07.2010, IN WHICH THE DISALLOWANCE WAS REDUCED TO 20%. WITH REG ARD TO THE DEDUCTION OF INTEREST, HE HAS SUBMITTED THAT SINCE THE ASSESSEE WAS ALLOTTED A PROPERTY, THEREFORE, IT SHOULD BE TREATED AS ACQUISITION OF PROPERTY AND DEDUCTION SHOULD HAVE BEEN GRANTED IN FAVOUR OF THE ASSESSEE. ON THE OTHER HAN D, THE LD. DR RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT THE ASSESSEE HAD NOT FURNISHED ANY EVIDENCE WITH REGARD TO CLAIM MADE FOR DEDUCTIO N OF CONVEYANCE ALLOWANCE AND ADDL. CONVEYANCE ALLOWANCE AND, THEREFORE, THE CONDITIONS OF SECTION 10(14)(I) HAVE NOT BEEN SATISFIED IN THIS CASE. THE LD. DR SU BMITTED THAT THE LD. CIT(A) HAS DISCUSSED THIS ISSUE IN PARA 6.12 OF THE ORDER THAT THE ASSESSEE HAS NOT FURNISHED ANY EVIDENCE TO PROVE THAT ANY EXPENSES WERE INCURRED W HOLLY AND EXCLUSIVELY FOR PERFORMANCE OF DUTIES. THEREFORE, THE CLAIM WAS RIG HTLY REJECTED. WITH REGARD TO ITA NO. 77/AGRA/2011 8 REDUCTION OF INTEREST, THE LD. DR SUBMITTED THAT TH E ASSESSEE DID NOT FURNISH ANY EVIDENCE BEFORE THE AO AND FURTHER NO POSSESSION WA S GIVEN TO THE ASSESSEE, THEREFORE, THE INCOME COULD NOT BE COMPUTED U/S. 23 (1) AND FURTHER THE ASSESSEE WITHDREW THE CLAIM BEFORE THE AO AT THE ASSESSMENT STAGE. THEREFORE, THE APPEAL OF THE ASSESSEE IS NOT MAINTAINABLE. THE LD. DR RELIED UPON THE DECISION OF HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS. FOUR FIELDS (P) LTD., (231/ITR/262) IN WHICH IT WAS HELD THAT NO SPECIFIC BORROWING MADE BY ASSESSEE FROM ERSTWHILE PARTNERS TO ACQUIRE BUILDING UN-DI SCHARGED LIABILITY PAYABLE TO OUTGOING PARTNERS WAS NOT BORROWED CAPITAL AS THERE WAS NO RELATIONSHIP OF BORROWER AND LENDER BETWEEN ASSESSEE AND OUTGOING P ARTNERS ASSESSEE NOT ENTITLED TO DEDUCTION OF INTEREST. THE LD. DR ALSO RELIED UPON THE DECISION OF HONBLE ALLAHABAD HIGH COURT IN THE CASE OF CIT VS. SMT. INDRAMANI DEVI SINGHANIA, 189 ITR 124. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND DO NOT FIND ANY MERIT IN BOTH THE GROUNDS OF APPEAL OF THE ASSESSEE. SECTION 10(1 4)(I) OF THE IT ACT PROVIDES AS UNDER : (14) (I) ANY SUCH SPECIAL ALLOWANCE OR BENEFIT, N OT BEING IN THE NATURE OF A PERQUISITE WITHIN THE MEANING OF CL AUSE (2) OF SECTION 17, SPECIFICALLY GRANTED TO MEET EXPENSES WHOLLY, N ECESSARILY AND EXCLUSIVELY INCURRED IN THE PERFORMANCE OF THE DUTI ES OF AN OFFICE OR EMPLOYMENT OF PROFIT AS MAY BE PRESCRIBED, TO THE E XTENT TO WHICH SUCH EXPENSES ARE ACTUALLY INCURRED FOR THAT PURPOSE. ITA NO. 77/AGRA/2011 9 IT IS ADMITTED FACT THAT THE ASSESSEE HAS NOT PRODU CED ANY EVIDENCE BEFORE THE AUTHORITIES BELOW THAT THE EXPENSES WHOLLY, NECESSA RILY AND EXCLUSIVELY WERE INCURRED ON CONVEYANCE IN PERFORMANCE OF DUTIES OF AN OFFICE OR EMPLOYMENT. THUS, THE ASSESSEE FAILED TO PROVE THE NECESSARY IN GREDIENTS OF SECTION 10(14)(I) OF THE ACT. THE LD. CIT(A) VERY ELABORATELY DISCUSSED THIS ISSUE IN THE IMPUGNED ORDER AND ALSO CONSIDERING THE DECISION OF HONBLE RAJAST HAN HIGH COURT IN THE CASE OF LIC OF INDIA VS. UNION OF INDIA, 260 ITR 41 RIGHTLY HELD THAT THE ASSESSEE WOULD BE ENTITLED FOR DEDUCTION IF THE AMOUNTS WERE ACTUALLY INCURRED IN PERFORMANCE OF DUTIES. HOWEVER, NO EVIDENCES WERE FURNISHED BEFORE THE AUTHORITIES BELOW TO SATISFY THE CONDITIONS OF THE ABOVE PROVISIONS AND EVEN NO CERTIFICATE FROM THE EMPLOYER, I.E., LIC, WAS FURNISHED TO CERTIFY IF TH E ASSESSEE SPENT ANY AMOUNT IN PERFORMANCE OF HIS DUTIES. THEREFORE, IT WAS VERY C LEAR ON RECORD THAT THE ASSESSEE DID NOT ADDUCE ANY EVIDENCE TO PROVE THAT ANY EXPEN SES WERE INCURRED IN PERFORMANCE OF DUTIES. THEREFORE, THE LD. CIT(A) RI GHTLY REJECTED THE CLAIM OF THE ASSESSEE. THE ASSESSEES COUNSEL RELIED UPON UNREPO RTED DECISION OF AGRA BENCH IN THE CASE OF ASHOK KUMAR SHARMA (SUPRA) IN WHICH NO REASONS HAVE BEEN GIVEN AS TO WHY DEDUCTION WAS RESTRICTED TO 20% ON THE ISSUE . IN THE ABSENCE OF ANY EVIDENCE ON RECORD, THE ASSESSEE WOULD NOT BE ENTIT LED FOR ANY DEDUCTION ON THIS ITA NO. 77/AGRA/2011 10 ISSUE. FURTHER, THE HONBLE ALLAHABAD HIGH COURT IN THE CASE OF CIT VS. RAMESH CHAND AGARWAL , 286 ITR 566 HELD INCENTIVE BONUS RECEIVED BY DEVELOPMENT OFFICER OF LIC FORMS PART OF SALARY AND EXPENDITURE INCURRED OVER AND AB OVE STANDARD DEDUCTION UNDER S. 16(I) FOR EARNING THAT INCOME IS NOT ALLOWABLE DEDUCTION. 5.1 IN VIEW OF THE ABOVE DISCUSSION AND FOLLOWING T HE DECISION OF HONBLE ALLAHABAD HIGH COURT, WE DO NOT FIND ANY MERIT IN G ROUND NO. 1 OF ASSESSEES APPEAL. THE SAME IS ACCORDINGLY DISMISSED. 6. ON GROUND NO.2, THE LD. CIT(A) HAS DISCUSSED THE ISSUE IN DETAIL AND NOTED THAT THE ASSESSEE CONCEDED AT THE ASSESSMENT STAGE THAT HE IS NO ENTITLED FOR DEDUCTION U/S. 24(B) OF THE IT ACT BECAUSE THE CLAI M WAS MADE WRONGLY WHICH WAS ALSO ACCEPTED BY FILING THE REVISED RETURN. THUS, T HE ASSESSEE AGREED FOR THE ADDITION BEFORE THE AO AND AS SUCH THE APPEAL OF THE ASSESSE E WOULD NOT BE MAINTAINABLE IN SUCH CIRCUMSTANCES. WE RELY UPON THE FOLLOWING DECI SIONS : (I). DECISION OF HONBLE BOMBAY HIGH COURT IN THE C ASE OF JIVATLAL PURTAPSHI VS CIT, 65 ITR 261 IN WHICH IT WAS HELD - HELD, THAT THE DEPARTMENT, HAVING AGREED TO DELETE THE AMOUNT FROM THE ASSESSMENT AND HAVING CONCEDED THE DELETION BEF ORE THE APPELLATE ASSISTANT COMMISSIONER CANNOT BE HELD TO BE AGGRIEV ED BY THIS PART OF THE ORDER TO ENABLE IT TO FILE AN APPEAL TO THE TRI BUNAL; THE APPEAL OF ITA NO. 77/AGRA/2011 11 THE DEPARTMENT REGARDING THE DELETION OF THE AMOUNT WAS NEITHER COMPETENT NOR CAPABLE OF BEING ENTERTAINED BY THE T RIBUNAL. (II). DECISION OF HONBLE PUNJAB & HARYANA HIGH COU RT IN THE CASE OF BANTA SINGH KARTAR SINGH VS CIT, 125 ITR 239, IN WH ICH IT WAS HELD - AN ORDER BASED ON AN AGREEMENT CANNOT GIVE RISE TO GRIEVANCES AND THE SAME CANNOT BE AGITATED IN APPEAL. IT WAS HELD: HELD, THAT IT WAS ON THE AGREEMENT OF THE ASSESSEE , WHICH AGREEMENT MENTIONED THE RATE AS WELL AS THE FIGURE, THAT PENA LTY HAD BEEN LEVIED. THE ASSESSEE HAD NO RIGHT TO AGITATE THIS QUESTION IN APPEAL. THE TRIBUNAL WAS RIGHT IN LAW IN NOT GOING INTO THE QUE STION WHETHER THE PENALTY WAS IN LAW THE MINIMUM PENALTY LEVIABLE UND ER S. 271(1) ( C ) OF THE I. T. ACT,1961. (III). DECISION OF HONBLE KERALA HIGH COURT IN THE RECENT DECISION IN THE CASE OF CIT VS VAMADEVAN BHANU, 330 ITR 559, IN WHI CH IT WAS HELD - ASSESSMENT ASSESSMENT ON AGREED BASIS ASSESSEE CANNOT APPEAL AGAINST SUCH ORDER INCOME TAX ACT, 1961. FURTHER, THE DEDUCTION U/S. 24(B) COULD BE GRANTED WHERE THE PROPERTY HAS BEEN ACQUIRED, CONSTRUCTED, REPAIRED, RENEWED OR RECONST RUCTED WITH BORROWED CAPITAL AND ON SUCH SITUATION IF INTEREST IS PAID ON BORROW ED CAPITAL, THE DEDUCTION WOULD BE ALLOWABLE. SECTION 23(1)(A) OF THE IT ACT PROVID ES THAT FOR THE PURPOSE OF SECTION 22, THE ANNUAL VALUE OF THE PROPERTY SHALL BE DEEMED TO BE THE SAME, FOR WHICH THE PROPERTY MIGHT REASONABLY BE EXPECTED TO LET FROM YEAR TO YEAR. THEREFORE, FOR THE PURPOSE OF GRANTING DEDUCTION U/ S. 24(B), THERE SHOULD BE THE ITA NO. 77/AGRA/2011 12 COMPUTATION OF ANNUAL VALUE OF THE PROPERTY AND THE WORD LET IN SECTION 23(1)(A) WOULD PROVIDE THAT PROPERTY SHOULD BE CAPABLE OF CR EATING THE INTEREST. WHEN THE POSSESSION OF THE PROPERTY WAS NOT GIVEN TO THE ASS ESSEE, THERE IS NO QUESTION OF CREATING INTEREST THEREIN. THEREFORE, THE LD. CIT(A ) ON PROPER APPRECIATION OF FACTS AND MATERIAL ON RECORD RIGHTLY DISALLOWED THE CLAIM OF THE ASSESSEE. FURTHER, ON THIS ISSUE ALSO, THE ASSESSEE DID NOT PRODUCE ANY EVIDEN CE BEFORE THE AO AND AS SUCH THE AUTHORITIES BELOW HAVE RIGHTLY REJECTED THE CLA IM OF THE ASSESSEE. IN VIEW OF THE ABOVE DISCUSSION, WE DO NOT FIND ANY MERIT IN GROUN D NO. 2 OF APPEAL OF THE ASSESSEE. THE SAME IS ALSO DISMISSED. 7. NO OTHER POINT IS ARGUED OR PRESSED. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DIS MISSED. ORDER PRONOUNCED IN THE OPEN COURT. SD/- SD/- (A.L. GEHLOT) (BHAVNESH SAINI) ACCOUNTANT MEMBER JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE SR. PRIVATE SECRETARY TRUE COPY