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2021 (6) TMI 138 - AT - Income TaxAlternative claim before the CIT(A) - AO made addition on account of bogus purchases though the assessee is entitled to claim of deduction u/s. 80IA(4)(b) - main contention of AR is that the assessee is eligible to claim deduction u/s. 80IA(4)(b) of the Act and there should not be a separate disallowance under the head alleged bogus purchases - alternative claim before the CIT(A) that if the alleged bogus purchases would be added to the infrastructural profit of the assessee which is exempt u/s. 80IA(4)(b) of the Act since the assessee is eligible for the deduction of claim u/s. 80IA(4)(b) - HELD THAT:- We note that the AO dealt the issues regarding the claim of deduction u/s. 80IA(4)(b) of the and disallowance under the alleged bogus purchases separately in his order. It is also true that the alternative claim made before the CIT(A) stating since the assessee is entitled for claiming deduction u/s. 80IA(4)(b) and the alleged disallowance under bogus purchases does not survive as it would be added to the total income of the assessee. Hon’ble High Court of Bombay in the case of CIT Vs. Gems Plus Jewellery Ltd.. [2010 (6) TMI 65 - BOMBAY HIGH COURT] the which held the alleged bogus purchases would be added to the infrastructural profit of the assessee which is exempt u/s. 80IA(4)(b) read with clause (c) of the explanation to section 80IA of the Act. The main controversy before us is that having made alternative claim before the CIT(A) which is not dealt by the CIT(A) by speaking order. Having squarely covered by the decision of Hon’ble High Court of Bombay in the case of CIT Vs. Gems Plus Jewellery Ltd. (supra) this Tribunal ought to have allowed additional ground in the main appeal, despite which the Tribunal remanded the matter to the file of AO. We note that it is true the AO dealt the above said two issues separately in his order. We note that admittedly, the CIT(A) did not deal with the alternative claim by speaking order. Miscellaneous Application filed by the assessee is allowed.
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