TMI Blog2012 (6) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... ded or averred that the amounts in question were paid on or before the due date of filing of the return. Petition dismissed - W.P.(C) 2130/1990 - - - Dated:- 22-5-2012 - Sanjiv Khanna and R V Easwar, JJ. For Appellant: Mr R Sanganathan, Adv JUDGEMENT 1. This writ petition under Article 226 and 227 of the Constitution of India impugns intimation dated 29.3.1990 issued by the Assessing Officer under Section 143(1)(a) of the Income Tax Act, 1961 (for short 'the Act') creating a demand of Rs.4,36,108/-. The amount determined was subsequently revised by an order dated 19.3.1991 under Section 154 of the Act. 2. For the assessment year 1989-90, the petitioner had field a return claiming loss of Rs.99,99,575/-. In the adjustment explanatory sheet enclosed with the intimation under Section 143(1)(a), the Assessing Officer had made adjustments on following grounds/reasons:- Loss 4,26,92,420/- (i) Interest not paid being disallowable u/s 43-B 37,02,281/- (ii) Entry tax u/s 43-B 5,981/- (iii) Welfare cess u/s 43-B 4,419/- (iv) P.F. unpaid u/s 43-B 18,548/- (v) cash payme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, it is clause (iii) of the proviso which was sought to be applied by the Income-tax Officer. The said clause clearly provides that the Income-tax Officer can make an adjustment to the income or loss declared in the return if, on the basis of the information available in such return, accounts or documents, the deduction allowance or relief claimed is prima facie inadmissible. The conclusion that the claim of the assessee is inadmissible must, in other words, flow from the return as filed. No power is given to the Income-tax Officer to disallow a claim for the reason that there is no proof in support of the claim made by the assessee. In a way, the said clause (iii) of the proviso is analogous to section 154 of the Act. Where it is evident from the return as filed, along with the documents in support thereof, that a claim of the assessee is inadmissible, only then an adjustment under the said proviso can be made. If proof in support of the claim is not, furnished by an assessee, then for the lack of proof, no disallowance or an adjustment can be made. The only option which is open to the Income-tax Officer, in such a case, is that he can require the assessee to furnish proof in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orward speculation loss set off against income from business or profession or against income under any other head. (vi) Loss under any head, other than under the head 'Profits and gains of business or profession', carried forward and set off against the current income. (vii) Carried forward loss of business set off against income of the current year under other heads. (viii) Old loss of more than eight assessment years set off against the current business income, if the information is available in the return or the accompanying documents. (ix) Deduction under section 80C in respect of provident fund contributions or life insurance premia or N. S. C. VI or VII Issue not claimed, though the information is available in the documents accompanying the return, or claimed at a figure which is less than or is in excess of the permissible amount. (x) Deduction under section 80L not claimed or claimed at a figure which is less than or is in excess of the permissible amount. (xi) Deduction under section 80G not claimed, although allowable on the basis of the information available in the return or the accompanying documents or claimed at a figure which is less than or i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... :- Provided that nothing contained in this section shall apply in relation to any sum referred to in clause (a) or clause (c) or clause (d) which is actually paid by the assessee on or before the due date applicable in his case for furnishing the return of income under sub-section (1) of section 139 in respect of the previous year in which the liability to pay such sum was incurred as aforesaid and the evidence of such payment is furnished by the assessee along with such return: 11. As per the said proviso the assessee could pay the sums covered by clauses (a) to (f) in respect of liability of the previous year, at any time but before the due date of filing of the return. However, the proviso mandates that evidence of such payments should be furnished by the assessee along with the return of income. In the case of S.R.F. Charitable Trust (supra) distinction has been drawn between the documents which are mandated and required to be filed with the return and documents or evidences which an assessee may be required to produce in the assessment proceedings. Reference to Clause (iii) of Section 143(1)(a) supports the stand and stance of the Revenue. In the present case, there wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
