TMI Blog2017 (10) TMI 1538X X X X Extracts X X X X X X X X Extracts X X X X ..... n made by the CAG. This plea in our view, in the facts and circumstances of the present case was enough to disregard the findings of the AO Since the issue is identical with the issue raised in AYs. 2003-04 to 2005-06 which is squarely covered in favour of the assessee and the Ld. DR could not controvert the facts and since there is no change in facts or law, we respectfully following the aforesaid order we confirm the order of ld CIT(A) and dismiss the ground of appeal of revenue. Addition on account of Hire Charges of Bus Ambulance - AO disallowed the same as the assessee was unable to produce any acceptable reason as to why the expenses should not be disallowed - CIT-A allowed claim - HELD THAT:- As in assessee s own case for AYs 2003-04 to 2005-06 incurring of the expenses by the Assessee cannot be disputed and in fact has not been disputed by the revenue. There appears to be only a dispute with regard to the evidence of incurring of the expenses. The details to which our attention was drawn by the learned counsel for the Assessee, in our view, requires to be verified by the AO. We, therefore set aside the order of the CIT(A) on this issue and remand the question of i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en the AO after verification finds that the issue raised has already been settled by this Tribunal then the claim of the assessee should be allowed. Disallowance u/s. 40A(9) - As according to the assessee, since the payments were made to the labourers working in farflung collieries where no banking facilities were available falls under the exemption given under Rule 6DD(i) of the Rules, therefore, the assessee s mistake of inadvertently disallowing the said amount needs to revisited and claim needs to be allowed we admit this issue also and restore the issue back to the file of the AO to decide as to whether the claim made by the assessee is allowable as per Rule 6DD(i) of the Rules. Appeal of the assessee is allowed for statistical purposes. - I.T.A No. 2119/Kol/2014, 2130/Kol/2014 - - - Dated:- 18-10-2017 - Shri A. T. Varkey, JM And Shri M. Balaganesh, AM For the Assessee: Shri Arvind Agarwal, Advocate For the Revenue: Shri Sairabh Kumar, Addl. CIT, DR ORDER Shri A.T.Varkey, These cross appeals filed by the assessee and the revenue are against the order of Ld. CIT(A), Asansol dated 19.09.2014 for AY 2007-08. 2. First we take up revenue appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esaid clause clearly reveals that the Assessee was bound to provide as part of the conditions of service to its employees, sports and recreational facilities. The grant in question is in pursuance of the aforesaid agreement. Therefore it cannot be said that the grants given by the Assessee are not for the purpose of business of the Assessee. As an employer provision of grants to provide better conditions of service will be part of the labour cost of the Assessee and it has to be allowed as deduction. As far as the plea of the revenue that the evidence of area-wise expenses were not produced, the plea of the Assessee was that the coal area is scattered over a large area and that the Assessee being a Government of India undertaking, its accounts are subject to review by CAG and no adverse comments have been made by the CAG. This plea in our view, in the facts and circumstances of the present case was enough to disregard the findings of the AO. Taking into consideration the overall facts and circumstances of the case, we are of the view that the deduction claimed had to be allowed. The same is directed to be allowed. The relevant grounds of appeal of the Assessee are allowed. 4. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idental to the business and are revenue in nature. Similar evidence has been produced in respect of the other two AYs also. The only dispute is with regard to evidence with regard to incurring of these expenses. The plea of the Assessee has been that these are statutory levies and the payments. It can be seen from the evidence on record that the payment relates to aforestation/tree plantation Land reclamation and Payment of statutory duty for environment clearance like Water cess consent fees to Pollution Control Board etc. As rightly contended by the learned AR such payments cannot be disputed on the ground that there was want of proper vouchers. But for payment of these statutory dues the Assessee could not have carried on its business. In the given circumstances of the case, we are of the view that the deduction in question ought to be allowed. We direct the same to be allowed as deductions. The relevant grounds of appeal of the assessee are allowed. 7. Since the issue is identical with the issue raised in AYs. 2003-04 to 2005-06, which is squarely covered in favour of the assessee and the Ld. DR could not controvert the facts and since there is no change in facts or law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h consideration with liberty to the Assessee to let in evidence to substantiate its claim for deduction of the aforesaid expenditure. For statistical purposes the relevant grounds of appeal are treated as allowed. 10. Since the issue is identical with the issue raised in AYs. 2003-04 to 2005-06, and the Ld. DR could not controvert the aforesaid finding of the Tribunal by producing any material before us, following the aforesaid order of the Tribunal, cited supra, we remit this issue to the file of the AO for fresh consideration as per the direction given in the Tribunal s order dated 27.07.2016 in AYs 2003-04 to 2005-06. This ground of appeal of revenue is allowed for statistical purposes. 11. Ground no. 4 of revenue s appeal is against the order of Ld. CIT(A) in respect of deleting the addition of ₹ 63,74,000/- made by the AO on account of Uniform and Stitching Charges. Briefly stated facts are that the assessee company has debited to P L Account a sum of ₹ 63,74,000/- towards Uniform and Stitching charges. The AO disallowed the same by observing that these expenses are not incidental to business of the assessee and added to the total income of the assessee. Aggr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground raised before him albeit first. Briefly stated facts are that when the Ld. CIT(A) remanded the fresh claim made by the assessee for the first time before him, the AO in his remand report observed that the additional grounds of appeal of the assessee relates to fresh claim of deduction which were not claimed in the return of income. According to AO, since the Hon ble Supreme Court in a similar case of Goetze (India) Ltd. Vs. CIT (2006) 204 CTR (SC) 182 has accepted the view of the department that a claim for a deduction not made in the return cannot be entertained by Assessing Officer and can be done only by filing revised return. In view of the above he submitted that the additional grounds of appeal filed by the assessee may not be accepted. On appeal, the Ld. CIT(A) did not admit and adjudicate the additional grounds of appeal filed by the assessee by observing as under: 11. The legal provision regarding additional grounds is admissible in view of provisions of section 250(5). As per decision in Ganpatrai Son Ltd. Vs. Commissioner of Excess Profits Tax 24 ITR 362 (Bom), as long as omission is not wilful or unreasonable, the additional ground can be admitted. 12. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ying a verified return was emphasised. Appeal proceedings arise only as a result of grievance and majority of the assessees are not aggrieved after filing return of income. Those not aggrieved do not get benefit of extended statutory limit, if the argument of appellant is accepted. Grievance, if the argument of appellant is accepted, can extend statutory limit to longer periods by continued litigation and goes against principles in Income Tax Act 1961 which puts caps on almost every statutory procedure in regard to time limit. There is a statutory bar on considering the points raised as additional grounds of appeal. In view of all the facts recorded in paragraphs 12 to 15, I decline to admit additional grounds of appeal. Aggrieved, assessee is in appeal before us. 14. We have heard rival submissions and gone through the facts and circumstances of the case. We note that the assessee inadvertently in the tax audit column 21B(j) has disallowed an amount of ₹ 2,52,25,000/- as not allowable u/s. 40A(3) of the Act. Likewise, the assessee at column 21B(h)(b) has disallowed ₹ 2.33 cr. as inadmissible u/s. 40A(3) of the Act read with Rule 6DD of Income-tax Rules, 1962 (he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alia, the authorities under the Income-tax Act, 1961 are under an obligation to act in accordance with law. Tax can be collected only as provided under the Act. If an assessee, under a mistake, misconception or on not being properly instructed, is over-assessed, the authorities under the Act are required to assist him and ensure that only legitimate taxes due are collected. Further, we rely on the decision of the Hon ble Supreme Court in CIT Vs. V. MR. P. Firm, Muar (1965) 56 ITR 67 (SC) and Circular No. 114XL 35 of 1955 issued by the CBDT on April 11, 1955 that an officer must not take advantage of ignorance of the assessee as to his rights. The judgment of Hon ble Supreme Court in the case of Goetz (India) Ltd. (supra) was limited to the power of the AO and did not impinge upon the power of the appellate authorities/Tribunal. Therefore, we are inclined to admit this claim of the assessee and restore this issue back to the file of AO to verify the claim made by the assessee. The assessee is directed to bring all the facts before the AO and in case the issue is already covered by the decision of this Tribunal as claimed by the assessee, then the AO after verification finds that t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
