DCIT, CIRCLE-10(1), KOLKATA, KOLKATA vs. M/S INDO NABIN PROJECTS LTD., KOLKATA

IN THE INCOME TAX APPELLATE TRIBUNAL “D”, BENCH KOLKATA BEFORE SHRI A.T. VARKEY, JM &DR. A.L.SAINI, AM आयकरअपीलसं./ITA No.2036/Kol/2016 (�नधा�रणवष� / Assessment Year: 2013-14) DCIT, Circle-10(1), Vs. M/s. Indo Nabin Projects Ltd. Kolkata 1582, Rajdanga Main Road, 7th Aayakar Bhawan, 3rd Floor, P-7, Floor, Kolkata – 700 107. Chowringhee Square, Kolkata �थायीलेखासं./जीआइआरसं./PAN/GIR No. : AAACI 6515 M (Appellant) .. (Respondent) Appellant by :Shri Arindam Bhattacharjee, Addl. CIT(DR) Respondent by:ShriS. R. Bhattacharya, CA सुनवाईक�तार�ख/ Date of Hearing : 17/01/2018 घोषणाक�तार�ख/Date of Pronouncement : 14/03/2018 आदेश / O R D E R Per Dr. Arjun Lal Saini, AM: The captioned appeal filed by the Revenue, pertaining to assessment year 2013-14, is directed against an order passed by the Commissioner of Income Tax(Appeals)-4, Kolkata, in Appeal No.1357/CIT(A)-4/Ward- 10(1)/Kol/15-16, dated 03.08.2016, which in turn arises out of an assessment order passed by the Assessing Officer u/s 143(3) of the I.T. Act, 1961 (hereinafter referred to as the ‘Act’), dated 02.01.2016. 2.Ground No.1 raised by the Revenue relates to disallowance of Rs.32,383/- which is, as per Revenue, penal in nature ignoring the provisions of section 40(a)(ii). 3.1The brief facts apropos this issue are that assessee filed its return of income for A.Y. 2013-14 on 24.09.2012 declaring a total income of Rs.6,70,51,640/-. The assessee’s case was selected for scrutiny u/s 143(2) of the Income Tax Act and the assessing officer completed assessment u/s 143(3) by making various disallowances. During the assessment

M/s Indo Nabin Projects Ltd. ITA No.2036/Kol/2016 Assessment Year: 2013-14 proceedings, the assessee has confessed the mistake for not adding back interest on TDS of Rs32,383/-. Since the mistake was admitted by the assessee, therefore, the assessing officer added Rs.32,383/- u/s 40(a)(ii) of the Act. 3.2 Aggrieved by this addition, the assessee filed an appeal before the ld. CIT(A), who has deleted the addition. Before the CIT(A), the assessee has submitted that the interest on TDS is not levied on the profits or gains but the tax deducted at source from the payment, therefore, the said section is not applicable on interest on TDS and hence should be allowed. The ld. CIT(A) observed that assessee has confessed wrongly about the interest on TDS of Rs.32,383/- during the assessment proceedings and to confess wrongly is not aground for disallowance, therefore, he deleted the addition made by the AO.Not being satisfied with the order of the ld. CIT(A), the Revenue is in appeal before us.The ld. DR for the Revenue has primarily reiterated the stand taken by the assessing officer which we have already noted in our earlier para and is not being repeated for the sake of brevity. On the other hand, the ld. counsel for the assessee has defended the order passed by the ld. CIT(A). 3.3 We have given a careful consideration to the rival submissions and perused the materials available on record, we note that assessee had admitted, by mistake and, therefore, the AO made the disallowance on account of interest on TDS i.e. the sole reason for disallowance by the assessing officer is that the assessee confessed the mistake for not adding back Rs.32,383/- on account of interest on TDS to the return of the total income. We note that it is an admitted fact that interest on TDS is not levied on the profit and gains, that is, interest on TDS is not levied on the profits but it is levied on account of tax deducted at source from the payments. Therefore, the said section is not applicable on interest on TDS. Apart from this, the assessingofficer has not brought anything on record to establish that the assessee has violated the provision of section 40(a)(ii). Mere Page | 2

M/s Indo Nabin Projects Ltd. ITA No.2036/Kol/2016 Assessment Year: 2013-14 admission by the assessee is not a ground for disallowance, there is some material to justify the same disallowance. That being so, we decline to interfere with the order of ld CIT(A) deleting the aforesaid addition, his order on this addition, is therefore upheld and the ground No.1 raised by the Revenue is dismissed. 3.4 In the result, Ground No.1 raised by the Revenue is dismissed. 4. Ground No.2 raised by the Revenue relates to disallowance of Rs.38,785/- which is as per revenue, penal in nature and CIT(A) has ignored the provisions of section 40(a)(ii) of the Act. 4.1 The brief facts apropos this issue are that during the assessment proceedings, the assessee has confessed the mistake for not adding back the TDS on interest on Income Tax of Rs.38,785/-. Since the mistake was admitted by the assessee during the assessment proceedings, therefore, the assessing officer made the disallowance u/s 40(a)(ii) of the Act. 4.2 On appeal, ld CIT(A) deleted the addition. Not being satisfied with the order of CIT(A) the Revenue is in appeal before us. The ld DR for the Revenue has relied on the stand taken by the assessing officer whereas, ld Counsel for the assessee has defended the order passed by the ld CIT(A). 4.3 We have given a careful consideration to the rival submissions and perused the materials available on record, we note that assessee had admitted, by mistake and, therefore, the AO made the disallowance on account of interest on Income Taxof Rs.38,785/- i.e. the sole reason for disallowance by the assessing officer is that the assessee confessed the mistake for not adding back Rs.38,785/- on account of interest on income tax to the return of total income. We note that it is an admitted fact that TDS is not levied on the interest on income tax but it is levied on account of tax deducted at source from the payments. Therefore, the said section is not applicable on interest on income tax. Apart from this, the assessing officer has not brought anything on record to establish that the assessee has Page | 3

M/s Indo Nabin Projects Ltd. ITA No.2036/Kol/2016 Assessment Year: 2013-14 violated the provision of section 40(a)(ii) of the Act. Mere admission by the assessee, is not a ground for disallowance, there is some material to justify the same disallowance. We note that assessing officer had made the addition merely because the assessee has admitted during the assessment proceedings without bringing any material on record to show that it is a violation of provisions of section 40(a)(ii) of the Act. That being so, we decline to interfere with the order of ld CIT(A) deleting the aforesaid addition, his order on this addition, is therefore upheld and the ground No.2 raised by the Revenue is dismissed. 4.4 In the result, Ground No.2 raised by the Revenue is dismissed. 5. Ground No.3 raised by the Revenue relates to disallowance of Rs.2,12,100/- claimed by the assessee for paying subscription for various political parties/ unions of students. 5.1 The brief facts apropos this issue are that in order to run the business smoothly, the assessee paid some subscription to different unregistered political parties and their student associations. As per assessee, this is kind of a small donation given to the various unions. During the assessment proceedings, the AO was of the opinion that the expenditure of Rs.2,12,100/- has not been incurred by the assessee for the purpose of business because the amount paid to various unions does not have any business connection with the assessee. Therefore, the AO disallowed Rs.2,12,100/-. 5.2 Aggrieved by the addition made by the AO, the assessee carried the matter before the ld. CIT(A) who has deleted the addition. Not being satisfied with the order of the ld. CIT(A), the Revenue is in appeal before us. The ld. DR has primarily reiterated the stand taken by the AO which we have already noted in our earlier para and is not being repeated for the sake Page | 4

M/s Indo Nabin Projects Ltd. ITA No.2036/Kol/2016 Assessment Year: 2013-14 of brevity. On the other hand, the ld. counsel for the assessee has defended the order passed by the ld. CIT(A). 5.3 We have given a careful consideration to the rival submissions and perused the materials available on record, we note that merely by stating that assessee has paid some amount to political parties, the assessing officer cannot disallow these expenses. The AO has to state specifically item wise that which amount given to the students’ federation/unions are for political purposes. The AO has not stated specifically that the students unions are recognized by the Election Commission of India. Without any specific findings of the AO and without bringing any cogent material on the record to prove that the subscription paid to students’ federation relates to political parties, the disallowance cannot be made. That is, the AO has to state specifically item wise which amount was given by the assessee to the student federation or political parties recognized by the Election Commission of India and without doing so, we are unable to find impugned order of the ld. CIT(A) perverse and erroneous. We note from the order of the ld. CIT(A) that assessee paid the subscription to various unions which is for the purpose of business. Moreover, the ld. CIT(A) has allowed such type of expenses in earlier years also. Therefore, we do not find any infirmity, as such, in the order of the ld. CIT(A). Hence, we confirm the order of ld. CIT(A). 5.4 In the result, the appeal filed by the Revenue (in Ground No.3) is dismissed. 6.Ground No.4 raised by the Revenue relates to disallowance of Rs.88,70,100/- violating the provision laid down under Rule 46A of the I.T Rule 1962 without going to the fact that the assessee has neither produced any explanation nor brought any cogent material to substantiate his claim.

M/s Indo Nabin Projects Ltd. ITA No.2036/Kol/2016 Assessment Year: 2013-14 6.1When this ground was adjudicated, the Bench confronted the ld. Counsel for the assessee and asked as to whether and why any fresh evidence was adduced before the ld. CIT(A) for the first time. The Counsel fairly conceded that new documents were in fact produced for the first time before the ld. CIT(A). Therefore, we find force in the ground raised by the Revenue that there is violation of Rule 46A of the I.T. Rules and for that we rely on the judgment of Hon`ble High Court of Delhi in the case of MANISH BUILD WELL (P) LTD, 204 Taxmann 106 (Del, wherein it was held as follows: “23.We are highlighting these aspects only to press home the point that the conditions prescribed in r. 46A must be shown to exist before additional evidence is admitted and every procedural requirement mentioned in the rule has to be strictly complied with so that the rule is meaningfully exercised and not exercised in a routine or cursory manner. A distinction should be recognized and maintained between a case where the assessee invokes r. 46A to adduce additional evidence before the CIT(A) and a case where the CIT(A), without being prompted by the assessee, while dealing with the appeal, considers it fit to cause or make a further enquiry by virtue of the powers vested in him under sub-s. (4) of s. 250. It is only when he exercises his statutory suo motu power under the above sub-section that the requirements of r. 46A need not be followed. On the other hand, whenever the assessee who is in appeal before him invokes r. 46A, it is incumbent upon the CIT(A) to comply with the requirements of the rule strictly. 24. In the present case, the CIT(A) has observed that the additional evidence should be admitted because the assessee was prevented by adducing them before the AO. This observation takes care of cl. (c) of sub-r. (1) of r. 46A. The observation of the CIT(A) also takes care of sub-r. (2) under which he is required to record his reasons for admitting the additional evidence. Thus, the requirement of sub-rs. (1) and (2) of r. 46A have been complied with. However, sub-r. (3) which interdicts the CIT(A) from taking into account any evidence produced for the first time before him unless the AO has had a reasonable opportunity of examining the evidence and rebut the same, has not been complied with. There is nothing in the order of the CIT(A) to show that the AO was confronted with the confirmation letters received by the assessee from the customers who paid the amounts by cheques and asked for comments. Thus, the end result has been that additional evidence was admitted and accepted as genuine without the AO furnishing his comments and without verification. Since this is an indispensable requirement, we are of the view that the Tribunal ought to have restored the matter to the CIT(A) with the direction to him to comply with sub-r. (3) of r. 46A. In our opinion and with respect, the error committed by the Tribunal is that it proceeded to mix up the powers of the CIT(A) under sub- s. (4) of s. 250 with the powers vested in him under r. 46A. The Tribunal seems to have overlooked sub-r. (4) of r. 46A [sic-s. 250] which itself takes note of the distinction between the powers conferred by the CIT(A) under the statute while disposing of the assessee’s appeal and the powers conferred upon him under r. 46A. The Tribunal erred in its interpretation of the provisions of r. 46A vis-à-vis s. 250(4). Its view that since in any case the CIT(A), by virtue of his coterminous powers over the assessment order, was empowered to call for any document or make any further enquiry as he thinks fit, there was no violation of r. 46A is erroneous. The Tribunal appears to have not appreciated the distinction between the two provisions. If the view of the Tribunal is accepted, it would make r. 46A otiose and it would open up the possibility of the assessees’ contending that any additional evidence sought to be introduced by them before the CIT(A) cannot be subjected to the conditions prescribed in r. 46A because Page | 6

M/s Indo Nabin Projects Ltd. ITA No.2036/Kol/2016 Assessment Year: 2013-14 in any case the CIT(A) is vested with coterminous powers over the assessment orders or powers of independent enquiry under sub-s. (4) of s. 250. That is a consequence which cannot at all be countenanced.” Therefore, whenever the assessee who is in appeal before CIT(A) and invokes Rule 46A, it is incumbent upon the CIT(A) to comply with the requirements of the Rule 46A strictly. Therefore, we set aside the order of ld. CIT(A) on this ground and remand the matter back to the file of assessing officer to consider the issue afresh. Needless to say that the assessee is at liberty to produce documents, which he has produced before the ld. CIT(A) for the first time and other relevant documents to substantiate this claim and we direct assessing officer, to pass speaking order after giving opportunity to the assessee. With aforesaid observation, we allow this ground of appeal for statistical purposes. 6.2 In the result, the appeal filed by the Revenue (Ground No.5) is allowed for statistical purposes. Order is pronounced in the open court on 14/03/2018. Sd/- Sd/- (A.T. VARKEY) (DR. A.L.SAINI) �या�यक सद�य / JUDICIAL MEMBER लेखा सद�य / ACCOUNTANT MEMBER कोलकाता /Kolkata; �दनांक Dated 14/03/2018 [RS SPS] आदेशक���त�ल�पअ�े�षत/Copy of the Order forwarded to : अपीलाथ�/ The Appellant –DCIT, Circle-10(1), Kolkata 1. ��यथ�/ The Respondent-M/s. Indo Nabin Projects Ltd. 2. आयकरआयु�त(अपील) / The CIT(A), 3. आयकरआयु�त/ CIT 4. �वभागीय��त�न�ध, आयकरअपील�यअ�धकरण, कोलकाता/ DR, ITAT, Kolkata 5. गाड�फाईल / Guard file. 6. स�या�पत��त True Copy By Order Senior Private Secretary, Head of Office/D.D.O, I.T.A.T, Kolkata Benches, Kolkata.