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Income Tax Appellate Tribunal, MUMBAI BENCH “F”, MUMBAI
Before: SHRI G.S.PANNU & SHRI SANJAY GARG
ORDER PER G.S. PANNU,AM:
The captioned appeals filed by the assessee pertaining to assessment years 2010-11 & 2011-12 are directed against orders passed by CIT(A)-18, Mumbai dated 4/7/2014 & 25/07/2014 respectively, which in turn have arisen out of orders dated 13/03/2013 &
First we may take up the appeal in . In this appeal assessee has raised the following Grounds of appeal:-
“1) On the fact and circumstances of the case as well as in Law, the Learned CIT(A) has erred in confirming the action of Learned Assessing Officer in disallowing a sum of Rs.87, 150/- u/s2(24)(X) r.w.s.36(1)(va) of the Income Tax Act, 1961, without considering the facts and circumstances of the case.
2) On the fact and circumstances of the case as well as in Law, the Learned CIT(A) has erred in confirming the action of Learned Assessing Officer in disallowing a sum of Rs.11,21,866/- u/s.14A of the Income Tax Act' 1961 by invoking the rule BD, without giving the findings that why the method adopted by the appellant for making disallowance of expenses of Rs.4,616/- against the exempt income is not to be accepted.
3) On the fact and circumstances of the case as well as in Law, the Learned CIT(A) has erred in confirming the action of Learned Assessing Officer in disallowing the claim of Rs.35,00,000/- u/s.8OG of the Income Tax Act' 1961, without considering the facts and circumstances of the case. 4) On the fact and circumstances of the case as well as in Law, the Learned Assessing Officer has erred in not allowing the claim of Sponsorship Expenses of Rs.25,00,000/- instead of Rs.5,33,333/- on the alleged plea that the said claim was not made by the appellant, while filing the return of income for the A.Y.2010-11.
5) On the facts and circumstances of the case as well as in Law, the Learned CIT(A) has erred in not adjudicating the additional ground of appeal raised on account of not allowing the claim of Sponsorship Expenses of Rs.25,00,000/- instead of Rs.5,33,333/- on the alleged plea that this issue was not discussed in the assessment order and no addition has been made on this account, without considering the facts and circumstances of the case.”
3. The first issue in this appeal is with regard to a disallowance of Rs.87,150/- representing contribution towards Employees Provident Fund, which has been disallowed on the ground that it has been 3 (Assessment Year : 2010-11) deposited subsequent to the due date prescribed under the respective Act. Before the CIT(Appeals), assessee raised a plea to the effect that since the amounts have otherwise been paid before the due date of filing of the return of income , therefore, the same should not suffer the disallowance under section 2(24)(X) r.w.s. 36(1)(va) of the Act. The aforesaid plea of the assessee was rejected by the CIT(Appeals) on the ground that there was no evidence to prove the date of payment of aforesaid amount.
4. Before us, the Ld. Representative for the assessee referred out to Para-2.1 of the order of CIT(Appeals), wherein the actual date of payments of the amount totalling to Rs.87,150/- have been noted, which clearly show that the payments have been made before the due date of filing of the return as specified in section 139(1) of the Act. Ld. Representative for the assessee pointed out that the aforesaid dates have been adopted by the income tax authorities from the Tax audit report furnished by the Department under section 44AB of the Act and, therefore, the same deserves to be accepted.
The Ld. Departmental Representative for the Revenue reiterated the objection taken by the CIT(Appeals), which we have adverted to earlier.
We have considered the rival stands. In the case of CIT vs. Aimil Limited, 321 ITR 508 (Del) as also in the case of Ghatge Patil Transport, 368 ITR 749(Bom), the Hon’ble Delhi and Bombay High Courts have held that even employee’s contribution towards Provident Fund paid before due date of filing of return of income does not suffer the 4 (Assessment Year : 2010-11) disallowance under section 43B of the Act. In the present case, the actual dates of payment adopted by the lower authorities to make the disallowance itself shows that the payments have been made before the due date of filing of return of income under section 139(1) and, therefore, following the ratio of the aforesaid judgments the disallowance is hereby directed to be deleted. Thus, on this aspect assessee succeeds.
The second Ground relates to the disallowance of Rs.11,21,886/- under section 14A of the Act, which has not been pressed at the time of hearing and the same is accordingly dismissed.
By way of Ground of appeal No.3, the grievance of the assessee is against the rejection of its claim for deduction under section 80G of the Act of Rs.35.00 lacs. The Assessing Officer denied the claim of the assessee for deduction under section 80G of the Act on the ground that the same was not made in the return of income but was claimed by the assessee by way of a letter dated 22/01/2013 during the course of assessment proceedings. In the course of assessment proceedings, assessee had claimed deduction under section 80G on account of donation of Rs.35.00 lacs made to Valuable Life Foundation. The Assessing Officer relied upon the judgment of Hon’ble Supreme Court in the case of Goetze (India) Ltd. vs. CIT, 284 ITR 323(SC) and rejected the plea since it was not made by way of any return of income. The CIT(A) has also denied the claim of the assessee for the reasons advanced by the Assessing Officer.
9. Before us, Ld. Representative for the assessee pointed out that the CIT(A) erred in not appreciating that the judgment of the Hon'ble
5 (Assessment Year : 2010-11) Supreme Court in the case of Goetze (India)Ltd (supra) did not effect his powers to admit an addition Ground of appeal. Ld. Representative for the assessee further pointed out that before the CIT(A), assessee had raised an Additional Ground of appeal relating to the claim of deduction under section 80G of the Act, which has been denied on unjust ground. Reliance has also been placed on the judgment of Hon'ble Bombay High Court in the case of CIT vs. Pruthvi Brokers & Shareholders Pvt. Ltd., in ITA No.3908 of 2010 dated 21/06/2012 for the proposition that the jurisdiction of the Appellate authorities to entertain an additional claim has not been negated by the Hon'ble Supreme Court in the case of Goetze (India) Ltd. (supra).
On the other hand, Ld.Departmental Representative has primarily relied upon the stand of lower authorities to the effect that since the claim was not made in the return of income, the same could not have been entertained.
We have carefully considered the rival submissions. In our view, having regard to the factual matrix of the case, the CIT(A) has failed to appreciate the issue in its proper perspective. Before the CIT(A), assessee had raised the claim for deduction under section 80G amounting to Rs.35.00 lacs as an Additional Ground based on parity reasoning laid down by the Hon'ble Supreme Court in the case of Jute Corporation of India Ltd. Vs. CIT, 187 ITR 688 (SC) as also in the case of National Thermal Power Co. Ltd. vs. CIT, 229 ITR 383 (SC). So however, the CIT(A) disposed of the same by noticing that such claim was not raised before the Assessing Officer by way of any revised return but 6 (Assessment Year : 2010-11) only through a written communication during the assessment proceedings. Ostensibly, the CIT(A) was guided by the ratio laid down in the case of Goetze (India) Ltd.(supra). In our considered opinion, what was required by the CIT(A) to decide was whether the impugned Ground could be admitted as an Additional Ground on an issue which was hitherto not admitted by the Assessing Officer. The judgment of the Hon'ble Supreme Court in the case of Goetze (India) Ltd.(supra) operates in an altogether different field and does not impinge upon the powers of Appellate Authorities to entertain fresh claims, a proposition which has been upheld by Hon'ble Bombay High Court in the case of Pruthvi Brokers & Shareholders Pvt. Ltd. (supra) as well as by the Hon’ble Delhi High Court in the case of CIT Vs. Jai Parabolic Springs Ltd. (2008) 306 ITR 42 (Del.). So far as, the merits of the admission of such Additional Ground is concerned, in our view, the same deserves to be admitted for adjudication, inasmuch as, before the CIT(A) assessee pointed out that the recipient of donation enjoys recognition under section 80G of the Act vide order No. DIT(E)/MC/80G/2051/2010-11 issued by the DI Exemption, Mumbai. We, therefore, deem it fit and proper to admit the aforesaid Ground for adjudication and since it is required to be verified, the same is remitted back to the file of the Assessing Officer. The Assessing Officer shall verify the plea of the assessee and allow appropriate relief under section 80G of the Act in accordance with law. Thus, on this aspect, assessee succeeds for statistical purposes.
Grounds of appeal No.4 & 5 above were not pressed at the time of hearing and they are accordingly dismissed.
In so far as the appeal in for assessment year 2011-12 is concerned, the only Ground raised in the Memo of appeal is with respect to the disallowance under section 14A of the Act. At the time of hearing, the said Ground of appeal has not been pressed and is accordingly dismissed.
In the result, whereas the appeal of the assessee for 2010-11 is partly allowed, that for assessment year 2011-12 is dismissed. Order pronounced in the open court on 22/06/2016