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Income Tax Appellate Tribunal, SURAT BENCH, SURAT
Before: SHRI AMARJIT SINGH, JM & SHRI O. P. MEENA, AM
IN THE INCOME TAX APPELLATE TRIBUNAL SURAT BENCH, SURAT BEFORE SHRI AMARJIT SINGH, JM AND SHRI O. P. MEENA, AM आयकर अपील सं/ I.T.A. No. 1689/Ahd/2017 (निर्धारण वर्ा / Assessment Year: 2012-13) बिधम/ Raj Kishore Prasad ITO, Ward-3 F-8, Ayodhyanagar Soc., Valsad. Vs. Opp. Sahjivan Soc., Shantinagar, Usmanpura, Ahmedabad-380013. स्थायी लेखा सं./जीआइआर सं./PAN/GIR No. : AITPP0535A (अपीलाथी /Appellant) .. (प्रत्यथी / Respondent) Assessee by: Shri Divyang Shah Revenue by: Shri Mayank Pandey (DR) सुनवाई की तारीख / Date of Hearing: 01/10/2019 घोषणा की तारीख /Date of Pronouncement: 04/10/2019 आदेश / O R D E R PER AMARJIT SINGH, JM: The assessee has filed the present appeal against the order dated 15.02.2017 passed by the Commissioner of Income Tax (Appeals)-, Valsad [hereinafter referred to as the “CIT(A)”] relevant to the A.Y. 2012-13.
The assessee has raised the following grounds: - 2.
“1 On the facts and in circumstances of the case and in law, Ld. Assessing Officer has erred in adding Leave travel concession of Rs.2,10,518/- by not allowing exemption under section 10(5) of the Act. 2. On facts and in circumstances of the case and in law, Ld. Assessing Officer has also erred in not allowing the TDS credit deposited
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by Employer-State Bank of India on payment of leave travel concession of Rs.2,10,518/- which is subject matter of addition in the hands of appellant-employee as well as in the hands of Employer bank-state bank of India. 3. Further appellant craves leave to add, alter or withdraw all or any grounds of appeal." 3. The assessee has raised the following additional grounds:-
“ 1. Whether on facts and in circumstances of the case and in law, Ld. AO has erred in levying interest u/s 234B & 234C of the Act. We crave to admit the above additional ground of appeal and allow us to be heard on the same. In this regards, we would like to mention that relevant documents in this regards is already available on record and no additional evidence is required to be admitted. The brief facts of the case are that the assessee filed his return 4. of income on 13.06.2012 declaring total income to the tune of Rs.9,29,500/-. Thereafter, an information was received from the ITO(TDS), Valsad regarding wrong claim of Leave Travel Allowance on the part of the assessee, the case of the assessee was reopened u/s 147 of the I.T. Act and notice u/s 148 of the Act was issued on 30.03.2015. Thereafter, notices u/s 143(2) & 142(1) of the Act were issued and served upon the assessee. The assessee was an employee of State Bank of India at the relevant point of time. The ITO(TDS), Valsad noticed that the assessee was reimbursed travelling expenses of Rs.2,68,400/- undertaken the journey under LFC/LTC. It was found that the assessee has performed leave travel as circular route via foreign countries. The details were called from the SBI, Valsad from where it revealed that the assessee had travelled to Singapore,
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Malaysia, Bangkok, Kolkatta, Dibrugarh, Delhi & Mumbai during the period from 02.06.2011 to 16.06.2011 as part of Leave Travel. According to the provisions of Sections 10(5) of the I.T. Act, the LTC/LFC was exempt only in respect of journey performed within India. A show-cause notice was issued and after the reply of notice, the claim of the assessee in connection with the Travelling out of India was declined and added to the income of the assessee. Feeling aggrieved, the assessee filed an appeal before the CIT(A) who dismissed the appeal of the assesse, therefore, the assessee has filed the present appeal before us. 5. We have heard the argument advanced by the Ld. Representative of the parties and perused the record. We noticed that the appeal has been filed 13 days delay. The assessee filed an affidavit for the condonation delay in which the assessee has taken the plea that the assessee was posted at Muscat Branch of State Bank of India in Oman since 08th March, 2015, therefore, for filing the appeal and consulting the matter took reasonable time, therefore, the delay is liable to be condoned. The explanation given by assessee seems justifiable, therefore, we condone the delay. ISSUE No. 1
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This issue has not been pressed by the Ld. Representative of the assessee, therefore, this issue is being decided in favour of the revenue against the assessee being not pressed. ISSUE No. 2 7. We have heard the argument advanced by the Ld. Representative of the parties and perused the record. Under this issue the assessee has claimed the TDS credit which has been deducted by revenue from employer of the Assessee i,e State Bank of India by virtue of order dated 05.01.2015. Copy of order dated 05.01.2015 is on the file which speaks that the employer paid the TDS along with the interest total in sum of Rs.92530/-. Since the employer has paid the TDS, therefore, no doubt the credit is liable to be given to the assessee in accordance with law. Accordingly, we allowed the claim of the assessee and direct the AO to give the credit to the assessee of the TDS amount of Rs.207970/-. Accordingly, this issue is decided in favour of the assessee against the revenue. ADDITIONAL GROUND 8. Under this issue the assessee has challenged the disallowance of interest upon the TDS. The copy of order dated 05.01.2015 also speaks this fact that the employer was in the default for deducting the TDS on the LTC of the Assessee, therefore, the interest u/s 201 & 201(IA) of the Act was charged from the employer. Since the interest
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has been charged from employer therefore no interest is not liable to be charged against the assessee. In this regard, we also find support of law settled in the case of Ian Morris Vs. ACIT (2016) 76 taxmann.com 271 (SC). Accordingly, the interest is not liable to be charged from the assessee and this issue is also decided in favour assessee against the revenue. 8. In the result, the appeal filed by the assessee is hereby ordered to be partly allowed. Order pronounced in the open court on 04/10/2019. Sd/- Sd/- (AMARJIT SINGH) (O. P. MEENA) लेखध सदस्य / ACCOUNTANT MEMBER न्यधनिक सदस्य/JUDICIAL MEMBER Surat; दिनांक Dated : 04/10/2019 Vijay Pal Singh/Sr. PS Copy sent to- Assessee/AO/Pr. CIT/ CIT (A)/ ITAT (DR)/Guard file of ITAT. By order / / TRUE COPY / / Assistant Registrar, Surat