2014 (5) TMI 552 - AT - Income Tax

Disallowance out of ticket incentives u/s 40A(3) of the Act Opportunity to submit additional evidences under Rule 46A not given Held that - The disallowance of expenses in the form of ticket incentives has been made by the AO for want of confirmation letters and even basic information such as names, addresses and PAN of the recipients of the said incentives, claimed as expenditure by the assessee - CIT(A) has considered further material furnished by the assessee - the powers of the CIT(A) are coterminous with that of the AO, and he is empowered to entertain any fresh evidence adduced by the assessee - the CIT(A) ought to have given the AO an opportunity to verify the same and submit his remand report it has not been done by the CIT(A), the order of the CIT(A) is set aside and the matter is remitted back to the AO for redetermination of the disallowance Decided in favour of Revenue.

Issues:
1. Disallowance of expenses related to 'ticket incentives' under S.40A(3) by the Assessing Officer.
2. Relief granted by the CIT(A) in relation to the disallowance of 'ticket incentives'.
3. Consideration of additional evidence by the CIT(A) without giving the Assessing Officer an opportunity to verify it.

Analysis:

Issue 1: Disallowance of expenses related to 'ticket incentives' under S.40A(3) by the Assessing Officer
The assessee, engaged in consultancy services, debited an amount under 'ticket incentives' but failed to provide corroborative evidence to the Assessing Officer. Consequently, the Assessing Officer disallowed a significant portion of the claimed expenses under S.40A(3). This disallowance was based on the lack of confirmations from students and essential details like names, addresses, and PAN. The assessment was completed with a total income different from the returned income.

Issue 2: Relief granted by the CIT(A) in relation to the disallowance of 'ticket incentives'
On appeal, the CIT(A) sustained a minor disallowance and directed the deletion of the balance amount. The CIT(A) considered the necessity of providing benefits like scholarships and ticket incentives to compete effectively. The appellant presented names of students, confirmations, and payment details through banking channels. The CIT(A) found the confirmations genuine, noting the difficulty in obtaining confirmations due to students being abroad. Cash payments were disallowed, but the overall disallowance by the Assessing Officer was not upheld by the CIT(A).

Issue 3: Consideration of additional evidence by the CIT(A) without giving the Assessing Officer an opportunity to verify it
The Appellate Tribunal noted that the CIT(A) considered further material without allowing the Assessing Officer to verify it or submit a remand report. While the CIT(A) has the power to entertain fresh evidence, fairness dictates giving the Assessing Officer a chance to review and report on the new evidence. As this procedural step was skipped, the Tribunal found merit in the Revenue's grievance and set aside the CIT(A)'s order. The matter was remitted to the Assessing Officer for redetermination after considering all evidence furnished by the assessee.

In conclusion, the Appellate Tribunal allowed the Revenue's appeal for statistical purposes, emphasizing the importance of procedural fairness and the need for a comprehensive review of evidence before making disallowances under S.40A(3).

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