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Income Tax Appellate Tribunal, “B” BENCH : BANGALORE
Before: SHRI SUNIL KUMAR YADAV & SHRI INTURI RAMA RAO
Date of hearing : 15.11.2017 Date of Pronouncement : 15.12.2017 O R D E R
Per Sunil Kumar Yadav, Judicial Member
This appeal is preferred by the assessee against the order of the CIT(Appeals) inter alia on the following grounds:-
“The following grounds are taken without prejudice to each other— On facts and in law, 1] The order passed u/s 250 by the CIT (Appeals) Bangalore 6, disallowing the claim made with the assessing officer before completing the assessment for allowing the disallowance made in the assessment year 2008-09 for non payment of TDS during the assessment year 2008-09 but paid during the assessment year 2009-10 of Rs.28,96,476/- allowable u/s 40(a)(ia) be declared bad in law. 2] The learned CIT (Appeals)Bangalore 6 failed to allow U/s 251 of the income tax act 1961 the claim made to him to allow the expenses of Rs.28,96,476 allowable u/s 40(a)(ia) of the income tax act 1961. The appellant craves leave to add, alter, amend or delete any of the above grounds of appeal
.”
2. During the course of hearing, the ld. Counsel for the assessee has invited our attention that assessee has submitted the return of income online, thereafter he noticed that a sum of Rs.28,96,476 claimed in the earlier years was disallowed on account of non-deduction of tax at source u/s. 40(a)(ia) of the Act. Though the TDS was deducted in the impugned assessment year, but the assessee has not raised a claim in this regard. The return could not be revised online and the assessee has raised a claim before the AO in this regard, but the AO has rejected the claim of the assessee on the ground that the assessee has not filed a revised return of income. The assessee preferred an appeal before the CIT(Appeals) with the submission that since the assessee has deducted the TDS and paid the same, the claim of the impugned payment should be allowed, but the CIT(Appeals) did not allow the same.
Now the assessee is before the Tribunal and reiterated its contentions. In support of its contentions, the ld. Counsel for the assessee placed reliance upon the judgment of the Hon’ble Madras High Court in the case of CIT v. Abhinitha Foundation (P) Ltd., 83 taxmann.com 100 (Madras) and the instruction issued by the CBDT.
The ld. DR simply placed reliance upon the order of the CIT(Appeals).
Having carefully examined the orders of the lower authorities in the light of rival submissions, we find that in the light of the judgment of the Hon’ble Apex Court in the case of Goetze (India) Ltd. v. CIT, 284 ITR 323 / 157 Taxman 1 (SC), the AO may not entertain a new claim which has not been raised in the original or revised return of income, but there is no restriction for the CIT(Appeals) or the Tribunal. It is settled position of law that the AO should examine the claim of assessee independently and assess the correct income in the right hand. When the issue was raised before the CIT(Appeals), atleast the CIT(Appeals) should have examined the same and if the assessee is entitled to it, it should have been allowed. But the CIT(Appeals) did not exercise his power.
Before us, the ld. Counsel for the assessee has contended that TDS for the impugned assessment year was deducted and deposited, therefore the relevant amount should be allowed. In this regard, we find merit in the contention of the assessee and we accordingly set aside the order of the CIT(Appeals) in this regard and restore the matter to the Assessing Officer with a direction to allow the relevant deduction if the TDS is deducted and deposited by the assessee. Accordingly, the AO is directed to readjudicate the issue on merits, after affording opportunity of being heard to the assessee.
In the result, the appeal of the assessee is allowed for statistical purposes.
Pronounced in the open court on this 15th day of December, 2017.
Sd/- Sd/-
( INTURI RAMA RAO ) ( SUNIL KUMAR YADAV) Accountant Member Judicial Member Bangalore, Dated, the 15th December, 2017.