ITO 1(1)-4, MUMBAI vs. GOLCONDE PROPERTIES P.LTD, MUMBAI

Order u/s.254(1)of the Income-tax Act,1961(Act) लेखा लेखा सद�य लेखा लेखा सद�य सद�य राजे�� सद�य राजे�� राजे�� केकेकेके अनुसार राजे�� अनुसार अनुसार PER RAJENDRA, AM- अनुसार Challenging the order dt.30.07.2014 of CIT(A)-1,Mumbai,the Assessing Officer (A.O.) and the assessee have filed appeal/cross objections for the year under consideration.Assessee- Company,filed its return of Income on 14.02.2013 declaring total at Rs.nil.The AO complet - ed assessment,on 13.12.113,u/.s143(3) of the Act,determining income of the assessee at Rs.35.34 lakhs. ITA/6254/Mum/2014 2.Effective Ground of appeal is about allowing the claim made by the assessee u/s.80GGA of the Act.During the assessment proceedings,the AO found that the assessee had made a donation of Rs.35.30 lakhs, that it had shown rental income of Rs.49.70 lakhs, that while working out the income from business it had reduced the donation by an amount of Rs.30, 000/-, only that it had debited donation of Rs.35.30 lakhs. He directed the assessee to explain as to why it had not reduced the full amount of donation while computing the income, as it was not wholly and exclusively for the purpose of business. The assessee replied that the amount of Rs.35 lakhs was donated to Aurobindo Ashram Trust Pondicherry, that it had been claimed as deduction u/s. 35(1)(ii) of the Act. Vide its order sheet entry noting 22.11.2013, he asked the assessee to furnish submissions with regard to allowability of deduction u/s.35(1) (ii),as it had offered rental income under the head income from house property. In its reply

6254/M/14 & C.O.103-Golconde properties ,dtd.28.11.2013,the assessee argued that the deduction for donation was allowable at 100% , that same was taken as business loss,that as per the provisions of section 71 of the Act, business loss could be set off against the income from other heads. The assessee made submission about the claim.However, the AO relying upon the case of Goetze(India) Ltd. (284ITR323)held that the AO could not decide the issue of a new claim or an additional claim.Finally,he made a disallowance of Rs.35.30 lakhs.

3.Aggrieved by the order of AO, the assessee preferred an appeal before the First Appellate Authority (FAA).Before him,it was argued that it had originally claimed the said donation u/s.35(1)of the Act,that during the course of assessment proceeding a revised claim was made for considering the said donation as exempt u/s.80GGA, that the AO had taken a contrary view,that it had in its return of income claimed that donation of Rs.35.00 lakhs was made to Sri Aurobindo Ashram Trust as expenditure by debiting the P&L Account, that the AO applied the ratio of Goetze (I) Ltd.(supra), that the case was covered by the judgment of Pruthvi Brokers and Sahreholders Pvt. Ltd. (349/336) of the Hon'ble Bombay High Court. After considering the submission of the assessee and the assessment order, the FAA held that it was on record that donation of Rs.35.30 lakhs was made to Sri Aurobindo Ashram Trust, that donation was debited to P&L account for deduction u/s.35(1) of the Act, that the assessee made a revised claim for allowing said amount u/s. 80GGA. Referring to judgment of Pruthvi Brokers and Sahreholders Pvt. Ltd.(supra), the FAA held that facts and circumstances of both the cases were similar.He allowed the appeal filed by the assessee holding that deduction of donation of Rs.35.30 lakhs was liable to be allowed u/s. 80GGA.

4.During the course of hearing before us the Departmental Representative (DR) supported the order of the AO.The Authorised Representative (AR) relied upon the case of Pruthvi Brokers and Sahreholders Pvt. Ltd. (supra), and referred to pg.No.7 of the Paper book.

7.We have heard the rival submissions and perused the material on record. We find that there is no doubt about the genuineness of the donation to the Ashram,that the assessee had claimed the deduction u/s.35(1) of the Act,that during assessment proceeding a fresh claim u/s. 80GGA was made,that the AO did not admit the claim,that the FAA following the judgment of Pruthvi Brokers and Sahreholders Pvt. Ltd.(supra) admitted the claim made by the assessee.In our opinion after judgment of Pruthvi Brokers and Sahreholders Pvt. Ltd.(supra),the appellate authority can admit new claim if it is supported by requisite

6254/M/14 & C.O.103-Golconde properties documents.The FAA,exercising his powers,has held that the amount in question should be treated for exemption u/s. 80GGA. In our opinion, there is no legal infirmity in his order, so, confirming the same, we are deciding the effective Ground of appeal against the AO. CO/103/Mum/2016 8.The CO was filed late by 4 months and 11 days.In the affidavit filed by the Director of the Company, it is stated that initially the matter was handled by a firm of CA.s, later on another firm advised it to file the CO. In our opinion, the reason given by the assessee for filing the CO belatedly is not reasonable.Hence, the CO filed by the assessee is being dismissed. Secondly,we have already dismissed the appeal of AO and have decided the issue in favour of the assessee on merits.