TMI Blog2007 (4) TMI 288X X X X Extracts X X X X X X X X Extracts X X X X ..... 351 out of crew wages on wrong appreciation of facts. 5. The learned CIT(A) has erred in sustaining the addition on account of car maintenance in the sum of Rs. 25,118. 6. The learned CIT(A) has erred in law and facts in sustaining the addition of Rs. 18,18,228 on account of social allowance. 7. The learned CIT(A) has erred in sustaining the disallowance under s. 80-O on wrong appreciation of facts, without considering the fact that the original claim was not entertained for want of certificate which was a curable defect and the CIT(A) should have given the appropriate directions." 3. Ground Nos. 1 to 5 were not pressed by the assessee, and the same are, therefore, dismissed for want of prosecution. 4. As regards ground No. 6, the relevant material facts are like this. The assessee is engaged in the business of supplying manpower to the various shipping lines. In the course of the assessment proceedings, the AO noticed that the assessee has received a sum of Rs. 18,18,228 from the principals and that the same is shown under the head 'Outstanding liabilities' in assessee's books of account. The AO inferred this amount, which was termed as 'social allowance', as having been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g perused the material on record, we are of the considered view that the additional evidences filed by the assessee which mainly consists of letter dt. 11th May, 2001 from Nomadic Management AS should be admitted. While the AO never requisitioned the details about assessee's obligation to refund the money and decided the matter against the assessee on the basis of his inferences about the same, the assessee could indeed have been under the bona fide impression, as the assessee claims that he was in, that this additional evidence could not have been produced before the CIT(A) We have taken note of assessee's contention that the chartered accountant appearing before the CIT(A) was not well conversant with the legal position, and that it was only in the course of handling of matter with the present tax consultant that the assessee realized that he could file this additional evidence. In any event, having perused the additional evidence filed by the assessee, we are also satisfied that this letter is an important piece of evidence which has to be taken into account in the interest of justice. We have also heard the learned Departmental Representative on the same. In view of these discu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling rate of exchange you have in all respect an amount equivalent to Indian Rupees 1,881,228 from us. The net amount with you to our credit on account of social allowance as on 31st March, 2001 is Indian Rupees 1,241,218.40, calculated as under: Gross amount remitted: 1,881,228.00 Less amount already disbursed: 640,009.60 ------------ Balance with you: 12,41,218.40 ------------ You have indicated to us that in India claims are lodged upto a period of 3 years. However keeping in view that the litigation by crew and its unions can take longer time, as per our experience we agreed to keep the deposit with you till the end of 2003. If till then there are no claims you will transfer the balance of the amount lying in your account in Indian Rupees, back to us, subject to necessary permissions, which will be taken by us from the appropriate authorities. If there are claims against us from the crew in USD we will only direct you to pay the amount to the extent lying with you in Indian Rupees and the difference if any, for remittance will be further remitted to you. You will under n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pply on the facts of the present case. In the case of Chowringhee Sales Bureau (P) Ltd., Hon'ble Supreme Court was in seisin of a situation in which while the auctioneer was issuing cash memos by including the amount of sales-tax, but declining to pay the same to the exchequer or to refund the same to the seller. It was the contention of the assessee that he is not liable to pay the same as he was not the seller, but only an auctioneer, and yet he collected the sales-tax from the persons to whom the auctioned goods was sold. It was on the fact that their Lordships held that the receipt in question was a trading receipt. While holding so, their Lordships observed as follows: "It is apparent from the order of the AAC and has not peen disputed before us in the present case that the cash memos issued by the appellant to the purchasers in the auction sale that it was appellant who was shown as the seller. The amount realized by the appellant from the purchaser included sales-tax. The appellant, however, did not pay the sales-tax to the actual owner of the goods auctioned because statutory liability to pay the sales-tax was of the appellant. The appellant company did not also deposit t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect to these observations, the grievance of the assessee is upheld. The AO is, accordingly, directed to delete the impugned addition. 9. Ground No. 6 is thus allowed. 10. As regards ground No. 7, learned representatives fairly agree that the issue is squarely covered by Tribunal's decision in the case of Dy. CIT vs. Tristar Consultants (2004) 91 TTJ (Mumbai) 1006 : (2004) 91 ITD 15 (Mumbai) even as learned Departmental Representative dutifully relied upon the orders of the authorities below. In any case, as far as the requirement of filing the necessary certificate is concerned, it is only procedural requirement and is a curable defect. There are number of decisions by several co-ordinate Benches to that effect. We see no reasons to take any other view of the matter than the view taken by the co-ordinate Benches. Respectfully following the same, we uphold the grievance of the assessee and direct the AO to grant deduction under s. 80-O in the light of our above observations and in the light of Tribunal's decision in the case of Tristar Consultants. The assessee succeeds on this ground as well. Ground No. 8 is also therefore allowed. 11. In the result, the appeal of the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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