Smt. Gomtiben Hareshbhai Jodhi, Banaskantha V. The ACIT.,B.K.Circle, Palanpur

MA 47/AHD/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 7435 (ITAT-AHMEDABAD)
• Duration Of Justice: 9 month(s) 1 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 20-01-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2004-2005
• Appeal Filed On: 19-04-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: N C AMIN
• Keywords: Salary income

Judgement Text

, , . .. . . .. . , . ! ! ! ! ! ! ! ! , ' ' ' ' # # # # IN THE INCOME TAX APPELLATE TRIBUNAL : C BENCH : AHMEDABAD BEFORE SHRI D.K.TYAGI, J.M. & HONBLE SHRI A.MOHA N ALANKAMONY, A.M.) $$ $$ $$ $$ ! ! ! ! (M.A.) NO.47/AHD/2011 : ASSESSMENT YEAR 2004-05 (ARISING OUT OF ITA NO.1899/AHD./2009) GOMTIBEN HARESHBHAI JOSHI, DIST- BANASKANTHA .... ( / APPLICANT) -VS- PAN: ADXPJ 7192A ACIT, B. K. CIRCLE, PALANPUR ( %&' / RESPONDENT) ( ) /APPLICANT BY : SHRI N. C. AMIN, A.R. %&' ( ) / RESPONDENT BY : SHRI VINOD TANWANI, SR.D.R. *!+ ( ,' / DATE OF HEARING : 20/01/2012 - . ( ,' / DATE OF PRONOUNCEMENT : 20/01/2012 / / / / / ORDER PER SHRI A.MOHAN ALANKAMONY, ACCOUNTANT MEMBER : THE ASSESSEE HAS FILED THIS MISCELLANEOUS APPLICAT ION SEEKING RECTIFICATION OF THE ORDER PASSED BY THE TRIBUNAL D ATED 18.02.2011 IN ITA NO.1829/AHD/2009 FOR THE ASSESSMENT YEAR 2004-05. 2. THE LD. A.R. SUBMITTED THAT THE ASSESSEE, VIDE H IS M.A. DATED 19.04.2011, HAS STATED AS UNDER: THE HUSBAND OF THE APPLICANT WAS A LEADING DEVELOPM ENT OFFICER OF LIC OF INDIA DIST.BANASKANTHA , GUJARAT. HE HAS EXP IRED ON 20.11.02 AND THE LEGAL HEIR OF THE DECEASED FILED RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION. DURING THE YEAR UNDER CONSIDER ATION, THE 2 M.A.NO. 47-AHD-2011 APPLICANT WIDOW HAS RECEIVED BONUS SALARY INCLUDING INCENTIVE BONUS COMMISSION ETC. OF RS.7,65,8137- WHICH INCLUDES INC ENTIVE BONUS COMMISSION ETC OF RS. 5,52,218/- RECEIVED AS ARREAR S PERTAINING TO FINANCIAL YEAR 2002-03 RELEVANT TO A.Y. 2003-04 ON 17.9.03 AND THEREFORE RETURN OF INCOME FOR THE AAY.2004-05 WAS FILED. THE INCENTIVE BONUS AND ARREARS WAS RECEIVED PERTAI NING TO THE ACCOUNTING YEAR. 2002-03 RELEVANT TO A.Y.2003-04 AN D THEREFORE DEDUCTION OF EXPENDITURE FROM INCENTIVE BONUS WAS C LAIMED IN A.Y. 2004-05. THE EXPENDITURE INCURRED FOR ACCOUNTING YE AR 2002-03 OF WHICH DETAILS HAS BEEN FILED BEFORE LOWER AUTHORITI ES WHICH IS APPEARING IN MY PAPER BOOK AT SR.NO.1 TO 35. HOWEVE R, THE LEARNED CIT(A) HAS DISALLOWED MY CLAIM OF DEDUCTION OUT OF INCENTIVE BONUS @ 30% ON THE GROUND THAT ONLY STANDARD DEDUCTION IS ELIGIBLE U/S 16(1) AND NO OTHER EXPENDITURE IS ADMISSIBLE. EVEN THOUGH THE HON'BLE GUJARAT HIGH COURT ON IDENTICAL FACTS HAS A LLOWED 30% FROM SALARY INCOME IN THE CASE OF CIT VS. KIRANBHAI H. S HELAT & OTHERS REPORTED IN 235 ITR PAGE 635. (COPY FILED ON PAGE N O.38 TO 66) ON PERUSAL OF ORDER OF THE HON'BLE ITAT, IN PARA 6 THE FINDING GIVEN ON PAGE 9 BOTTOM IS AS UNDER: 'ACCORDINGLY, HON'BLE HIGH COURT HELD THAT THE ASSE SSEE WAS ENTITLED TO CLAIM SUCH DEDUCTION BUT ONLY TO THE EX TENT OF REIMBURSEMENT OF EXPENSES ACTUALLY INCURRED UP TO T HE MAXIMUM LIMIT OF THIRTY PER CENT OF THE INCENTIVE BONUS EARNED BY THE ASSESSEE. HOWEVER, NEITHER BEFORE THE A.O. NOR BEFORE JHE LD. CIT(A). EVEN WHEN THE LATTER SPECIFICALLY REQUESTED VIDE LETTER DATED 12.8.2008 TO SUBMJT DETAILS/PROOF OF EXPENDITURE ACTUALLY INCURR ED, THE ASSESSEE SUBMITTED ANY EVIDENCE OF EXPENDITURE ACTUALLY INCU RRED DURING THE YEAR UNDER CONSIDERATION. THE PHOTOCOPIES OF THE VO UCHERS SUBMITTED BEFORE THE ID. CIT(A) PERTAINED TO THE F.Y.2002-03 RELEVANT TO THE A.Y.2003-04 AND NOT TO THE YEAR UNDER CONSIDERATION . EVEN BEFORE US SITUATION IS NO BETTER IN THE ABSENENCE OF ANY MATE RIAL, SO AS TO ENABLE US TO TAKE A DIFFERENT VIEW IN THE MATTER, W E ARE NOT INCLINED TO INTERFERE WITH THE FINDINGS OF THE LD.CLT(A). THERE FORE, GROUND NOS. 7 TO 9 IN THE APPEAL ARE ALSO DISMISSED.' IN FACT THE APPELLANT HAS RECEIVED INCENTIVE BONUS COMMISSION OF RS.5,52,218/- DURING THE YEAR UNDER CONSIDERATION P ERTAINING TO THE 3 M.A.NO. 47-AHD-2011 ACCOUNTING PERIOD 1.4.02 TO 31.3.2003 WHICH IS APPE ARING ON PAGES 74 TO 89 OF PAPER BOOK. THE DOCUMENTARY EVIDENCES HAS BEEN FILED BY THE APP ELLANT BEFORE LEARNED CIT(A) ALONG WITH LETTER DT. 27.12.0 8 WHICH IS APPEARING IN PAGE NO.1 OF PAPER BOOK. THE INCOME RE CEIVED DURING THE ACCOUNTING YEAR 1.4.2003 TO 31.3.2004 PERTAININ G TO PERIOD 1.4,2002 TO 30.3.2003 AS PER AUDIT OF LIC. THE VOUC HERS AND OTHER DETAILS FOR RECEIPT OF INCENTIVE BONUS IS APPEARING ON PAGES 74 TO 89 AND THEREFORE THERE IS A FACTUAL MISTAKE WHICH IS A PPARENT ON THE FACE OF THE RECORD WHICH REQUIRES TO BE RECTIFIED U/S 25 4(2) OF THE I.T.ACT 1961. 3. THE LD. D.R. DID NOT OBJECT TO THE SUBMISSIONS O F THE LD. A.R. 4. CONSIDERING THE SUBMISSIONS OF THE LD. A.R. AND PERUSING THE MATERIALS ON RECORD BEFORE US, IT APPEARS THAT CERT AIN APPARENT MISTAKES ARE REQUIRED TO BE RECTIFIED IN THE ORDER OF THE TRIBUN AL. THEREFORE, IN THE INTEREST OF JUSTICE, WE HEREBY RECALL THE ORDER OF THE TRIBU NAL DATED 18.02.2011 IN ORDER TO RECTIFY THE MISTAKES TO THE EXTENT STATED ABOVE AND THE APPEAL IS FIXED FOR HEARING ON 26.03.2012. SINCE THE ORDER H AS BEEN PRONOUNCED IN THE OPEN COURT AND BOTH THE PARTIES HAVE BEEN INFOR MED ABOUT THE DATE OF HEARING IN THE COURT, IT IS NOT NECESSARY TO SERVE THE NOTICE OF HEARING TO BOTH THE SIDES. 5. IN THE RESULT, THE MISCELLANEOUS APPLICATION FIL ED BY THE ASSESSEE IS ALLOWED. 0 / ( - . 1!2 20 / 01 /201 2 3 ( + 4 SD/- SD/- (D.K.TYAGI) (A.MOHAN ALANKAMONY) JUDICIAL MEMBER ACCOUNTANT M EMBER DATED : 20/01/2012 4 M.A.NO. 47-AHD-2011 / / / / ( (( ( %,$ %,$ %,$ %,$ 6$.,2 6$.,2 6$.,2 6$.,2- -- - 1. &' 2. %&' 3. , *; 4. *;- - 5. $> %,!, , 4 6. A0 / , B/ D , 4 TALUKDAR/ SR. P.S.