TMI Blog2013 (11) TMI 273X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on the Assessing Officer for not entertaining any claim for deduction otherwise than by filing a revised return and not on the appellate authorities. We, therefore, set aside the impugned order and remit the matter to the file of the Assessing Officer for deciding the question of deductibility or otherwise in respect of such fresh claims as per law after allowing a reasonable opportunity of being heard to the assessee. - matter remanded back. Claim for deduction of security deposit with government, written off - Major amount is against deposits given to Electricity Board; to Collector of Custom against import clearance; to Indian Oil Corporation against gas cylinders; and to Posts & Telegraphs Department against telephone connections ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certificates and hence the amount of TDS certificates not recovered should be allowed as deduction as business loss – Held that:- except for internal documents, there is no material on record to indicate as to why so many parties refused to issue TDS certificates to the assessee after duly deducting the same. No reason worth the name has been stated as to why the assessee did not take any action as prescribed under the law against such erring parties – Decided against the Assessee. - ITA No.3145/Mum/2012, ITA No.3146/Mum/2012 - - - Dated:- 13-9-2013 - Shri R. S. Syal, AM And Shri Vivek Varma, JM,JJ. For the Appellant : Shri R. Santhanam Suresh Malik For the Respondent : Shri Kishan Vyas ORDER Per R. S. Syal (AM) :- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the assessee incurred the expenditure of Rs. 2.89 lakh on issuance of shares. By no standard this expenditure can be considered as revenue. Since the Assessing Officer himself has allowed deduction u/s 35DD at the rate of 1/5th of the total expenses, we hold that no further relief can be allowed. This ground is, therefore, not allowed. 4. Second ground is against the confirmation of disallowance of Rs. 1,11,918 on account of postal expenses incurred in relation issuance of shares. The assessee claimed expenditure of Rs. 1,31,718 as deductible u/s 37(1). The Assessing Officer allowed deduction u/s 35DD at 1/5th of the expense and disallowed the remaining part. The learned CIT(A) confirmed the order on this issue. 5. We have heard the r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is obvious that the restriction has been placed on the Assessing Officer for not entertaining any claim for deduction otherwise than by filing a revised return and not on the appellate authorities. We, therefore, set aside the impugned order and remit the matter to the file of the Assessing Officer for deciding the question of deductibility or otherwise in respect of such fresh claims as per law after allowing a reasonable opportunity of being heard to the assessee. 8. In the result, the appeal is partly allowed for statistical purposes. Assessment Year 2007-2008 9. First ground of the appeal is against the confirmation of disallowance of Rs. 1,29,855 written off in respect of security deposits not recoverable. The assessee claimed de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot accept that the Government has failed to refund any sum legitimately becoming due to its citizens. When the amount has not become due for refund because of the continuation of business, how the assessee becomes entitled to its refund, is beyond our comprehension. Under such circumstances, we are of the considered opinion that the authorities below were justified in refusing deduction for such amount on a mere write off. 11. Second ground is against the confirmation of disallowance of Rs. 8,59,952 in respect of custom duty draw back not recoverable. Here also the facts are almost similar to the first ground. The assessee wrote off this sum due from Government being duty draw back. No material has been placed on record to show as to h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further the amount of TDS certificates also stood deposited in the Government exchequer, the position of the assessee vis- -vis the parties stands neutralized as nothing remains due from them. In such a situation, there can be no question of incurring any business loss or treating the amount of TDS certificates not received as short receipts. Since this amount represents tax deducted at source by the parties on behalf of the assessee, the same is in the nature of TDS receivable. It is settled position that tax payment is not a charge against but application of income. That is why section 40(a)(ii) clearly provides that any sum paid on account of taxes on the profits or gains of any business or profession, is not deductible. The Hon'ble Sup ..... X X X X Extracts X X X X X X X X Extracts X X X X
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