2017 (8) TMI 738 - AT - Income Tax

Addition u/s 40(a)(v) - Tax on Tax perquisite - admissible expenses in the hands of the employer - Held that - The exemption under section 10(10CC) of the Act is not applicable as the tax borne by employer has already been grossed up. Moreover exemption under section 10(10CC) of the Act has also not been claimed by the assessee. The assessee has paid tax on tax and not claimed exemption under section 10(10CC) of the Act. Therefore in our view there can not be any disallowance under section 40(a) (v) of the Act and hence we confirm the order of ld CIT(A). Addition on account of interest on fixed deposit - Held that - As limited request of assessee is for a direction to direct the AO that if the same income is taxed in the succeeding year on receipt basis then the same should be deleted in previous year in which it had been taxed based on accrual to avoid double taxation we agree with the submission of ld AR and we direct the Assessing Officer to delete the interest income if the same income is offered to tax by the assessee in the succeeding assessment year. Therefore we allow CO.No.1 for statistical purposes.

Summary

Issues:
1. Disallowance under Section 40(a)(v) of the Income Tax Act, 1961.
2. Set off of carry forward of unabsorbed depreciation.
3. Addition of interest on fixed deposit.
4. Levy of interest under section 234B of the Act.

Issue 1: Disallowance under Section 40(a)(v) of the Income Tax Act, 1961:
The appeal involved the disallowance made by the Assessing Officer under Section 40(a)(v) of the Income Tax Act, 1961, which was later deleted by the Commissioner of Income Tax (Appeals). The dispute centered on tax borne by the employer on behalf of employees and whether such tax should be added again for the computation of taxable income. The Appellate Tribunal upheld the deletion of disallowance, emphasizing that the exemption under Section 10(10CC) of the Act was not applicable as the tax borne by the employer had already been grossed up, and the assessee had not claimed the exemption. Therefore, the Tribunal confirmed the order of the Commissioner of Income Tax (Appeals).

Issue 2: Set off of carry forward of unabsorbed depreciation:
The Revenue raised a ground related to the set off of carry forward of unabsorbed depreciation for the assessment year 2005-06. However, as an appeal regarding this issue was pending before the Hon'ble ITAT, the Tribunal deemed the ground premature and consequential, deferring the decision to the ITAT's order.

Issue 3: Addition of interest on fixed deposit:
The Assessee's Cross Objection challenged the addition of interest on fixed deposit. The Tribunal directed the Assessing Officer to delete the interest income if the same income is taxed in the succeeding assessment year on a receipt basis, to avoid double taxation. Consequently, the Cross Objection was allowed for statistical purposes.

Issue 4: Levy of interest under section 234B of the Act:
Regarding the levy of interest under section 234B of the Act, the Tribunal considered it premature and consequential. The Assessing Officer was directed to provide consequential relief, indicating that this issue required further action based on subsequent developments.

In conclusion, the Appellate Tribunal ITAT KOLKATA addressed various issues, including the disallowance under Section 40(a)(v) of the Income Tax Act, set off of unabsorbed depreciation, addition of interest on fixed deposit, and levy of interest under section 234B. The Tribunal upheld the deletion of disallowance, deferred the decision on carry forward of unabsorbed depreciation, allowed the deletion of interest income if taxed in the succeeding year, and directed the Assessing Officer to provide consequential relief regarding interest under section 234B.