2023 (2) TMI 744 - AT - Income Tax

Disallowance us 43B OR 40A - Provision for Gratuity - disallowance of expenditure indicated in the tax audit report but not taken into account in computing the total income in the return of income - Appellant submits that it has already made disallowance of Provision of Gratuity inadvertently u/s 40A(7) as against us 43B thus disallowance made by the AO would amount to double disallowance and same shall be deleted - HELD THAT - We are of the considered opinion that this issue be remanded to the jurisdictional Assessing Officer for de novo adjudication after necessary verification/examination of all the details. If upon verification, it is found that the amount has already been disallowed on account of the provision for gratuity under section 40A(7) of the Act then to that extent the disallowance under section 43B of the Act be deleted, otherwise the same will result in double disallowance of the same amount. Similarly, as regards the sum it is found that the amount has been paid by the assessee during the year then relief be granted to the assessee as per law. Needless to mention that no order shall be passed without affording reasonable opportunity of being heard to the assessee. As a result, the grounds raised by the assessee are allowed for statistical purposes.

Summary

Issues:
Challenge to order under section 250 of the Income Tax Act, 1961 for assessment year 2020-21 regarding disallowance of Provision for Gratuity under section 43B of the IT Act.

Analysis:
The appeal filed by the assessee challenges the order passed under section 250 of the Income Tax Act, 1961, for the assessment year 2020-21, regarding the disallowance of Provision for Gratuity under section 43B of the IT Act. The assessee raised grounds arguing against the disallowance made by the Commissioner of Income Tax (Appeals), Pune. The Tax Auditor suggested a disallowance of Rs. 12,16,766 under section 43B of the Act, which the assessee inadvertently did not account for while filing the return of income. The Commissioner upheld the disallowance, stating that the disallowance under section 40A(7) made by the assessee was different from the disallowance under section 43B. The Commissioner concluded that the disallowance under section 43B was correctly made based on the Tax Audit Report, and upheld the disallowance of Rs. 12,16,766.

The assessee contended that the disallowance under section 43B would result in double disallowance as the assessee had already disallowed Rs. 12,86,458 under section 40A(7) of the Act. The assessee argued that an amount of Rs. 69,692 had been paid during the year and should not be disallowed. The learned Authorised Representative submitted that the assessee had inadvertently mentioned the disallowance under the wrong provision while filing the return of income. The Departmental Representative argued that the assessee did not file a revised return despite knowing about the mistake.

Upon considering the submissions, the Tribunal found discrepancies between the Tax Audit Report and the return of income filed by the assessee. The Tribunal noted that the disallowance under section 43B as per the audit report was not accounted for in the return filed by the assessee. It was observed that the disallowance under section 40A(7) made by the assessee was different from the disallowance under section 43B as indicated in the audit report. The Tribunal remanded the issue to the Assessing Officer for further examination and verification of details. The Tribunal directed that if the disallowance under section 40A(7) had already covered the amount disallowed under section 43B, then the latter should be deleted to avoid double disallowance. The Tribunal also instructed that if the amount of Rs. 69,692 had been paid during the year, relief should be granted to the assessee accordingly. The Tribunal allowed the appeal for statistical purposes.

In conclusion, the Tribunal remanded the issue to the Assessing Officer for a fresh adjudication after verifying the details to avoid double disallowance and ensure relief for the amount paid during the year. The Tribunal allowed the appeal for statistical purposes, providing an opportunity for the assessee to be heard before any final decision is made.