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2015 (10) TMI 10 - ITAT MUMBAIRevision u/s 263 - disallowance u/s 43B being provision made for liability on account of pension scheme - Held that:- There is a complete lack of enquiry on the part of the Assessing Officer so far as the issue of provision towards the pension scheme liability. The lack of enquiry and non application of mind itself renders the assessment order erroneous so far as prejudicial to the interest of revenue as held by the Hon'ble Supreme Court in the case of Malabar Ind. Co. Ltd. Vs. CIT (2000 (2) TMI 10 - SUPREME Court). Thus we are of the view that the Commissioner was justified in invoking the provisions of section 263 as there was a lack of enquiry and non application of mind on the part of the Assessing Officer while framing the assessment u/s 143(3) dated 16.12.2010. However, when the assessee in the revision proceedings has brought to the notice of Commissioner that the said claim is an allowable claim being ascertained liability based on actuarial valuation report and as per Accounting Standard 15 then the Commissioner was supposed to examine the claim on its own or ought to have directed the Assessing Officer to examine the same as there was no enquiry on this issue at the time of framing the original assessment u/s 143(3 ). The assessee has submitted that the pension scheme in question does not make any regular contribution to any fund or trust and, therefore, the liability on this account would not fall under the provisions of section 43B. Since this aspect has not been examined by the Assessing Officer, therefore, in the facts and circumstances of the case and in the interest of justice, we modify the impugned order of the Commissioner and set aside this issue to the record of Assessing Officer for proper verification and examination of claim of the assessee and then decided the same as per law by considering the decisions relied upon by the assessee. - Decided in favour of assessee for statistical purposes.
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