TMI Blog2018 (2) TMI 512X X X X Extracts X X X X X X X X Extracts X X X X ..... lts in income being assessed lower than the returned income, that would be the true and correct income of the assessee and it would be the duty of the revenue to assess the correct tax liability of the assessee. We deem it fit and appropriate, in the interest of justice and fairplay. Addition being amortization of premium paid for purchase of securities - Held that:- We find that this issue is covered in favour of the assessee by the order of this tribunal in assessee’s own case for the Asst Year 2008-09 [2016 (6) TMI 181 - ITAT KOLKATA] wherein held AO disallowed the claim of the assessee on the assumption that full purchase consideration of all the securities was included in the said investment trading account and amortization amount i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of additional ground raised by the assessee for the Asst Year 2007-08. ITA No. 127/Kol/2011 Asst Year 2007-08 Assessee Appeal 2. The additional ground raised by the assessee is as under:- That the Learned Assessing Officer may be directed to allow deduction of ₹ 77,90,374/- and ₹ 21,41,903/- in respect of interest and rent respectively after verification of all necessary documents in support of claim of the appellant bank . 3. The brief facts of this issue is that the ld AO disallowed a sum of ₹ 3,17,32,734/- u/s 40(a)(ia) of the Act for non-deduction of tax at source based on tax audit report u/s 44AB of the Act. Since this disallowance was made voluntarily by the assessee in the original return of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he payment made / credited to the payee did not exceed the threshold limit prescribed u/s 194I of the Act. Hence in the opinion of the assessee, the interest paid in the sum of ₹ 21,41,903/- does not require deduction of tax at source u/s 194I of the Act and consequential disallowance u/s 40(a)(ia) of the Act ought not to have been made by the assessee at the first instance and confirmed by the ld AO in his assessment order. 4. We have heard the rival submissions. We find that the assessee had raised an additional ground to address its grievance in this regard vide its petition dated 15.11.2012 filed in this office on 15.5.2013. The ld AR argued that the assessee never had any occasion to address this issue before the lower authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the statute. The assessee is only pleading for claim of deduction which had been erroneously disallowed by it in the return of income and considered as such by the ld AO in the assessment. Though there was no occasion for the revenue to adjudicate this issue on merits, the revenue could not take advantage of the mistake committed by the assessee. The scheme of taxation is primarily governed by the principles laid down in the Constitution of India and as per Article 265 of the Constitution of India, no tax shall be levied or collected unless by an authority of law. When a particular item is not to be taxed as per the statute, then taxing the same would amount to violation of constitutional principles and revenue would be unjustly en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is appeal is as to whether the ld CITA was justified in deleting the addition of ₹ 91,30,00,000/- being amortization of premium paid for purchase of securities in the facts and circumstances of the case. 7. We have heard the rival submissions. We find that this issue is covered in favour of the assessee by the order of this tribunal in assessee s own case for the Asst Year 2008-09 in ITA No. 1199 1282/Kol/2012 dated 1.6.2016, which was the basis for recalling of the order in the miscellaneous application proceedings. We find that this tribunal for the Asst Year 2008-09 in assessee s own case had held as under:- 42. We have considered the rival submissions. The assessee while computing its total income claimed deduction under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me premium is separately claimed in the profit and loss account again as a deduction. The plea of the Assessee that there is no such double claim for same cost has been found to correct by the CIT(A). The order of the AO is silent on this aspect. The Assessing Officer disallowed the claim of the assessee on the assumption that full purchase consideration of all the securities was included in the said investment trading account and amortization amount is charged separately in the Profit and Loss Account again and he therefore held that the claim of the Assessee cannot be allowed in computation of total income. This factual assumption of the AO is wrong as found by the CIT(A) which has not been disputed before us. In these circumstances, we a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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