9911796707
TMI Blog2012 (6) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... t fund, Interest to public institutions - expenditure dis-allowed for want of proof that taxes have been paid before filing the return - Held that:- In the present case, there was lapse and failure on the part of the assessee to file the requisite document as per Section 43B to show evidence for payment of tax etc. on or before the due date of filing of the return. Thus, the AO had rightly made and was justified in making prima facie adjustment for want of mandatory documents. Even in the writ petition filed before this Court, it is not pleaded or averred that the amounts in question were paid on or before the due date of filing of the return. Petition dismissed X X X X Extracts X X X X X X X X Extracts X X X X ..... re a return has been made under section 139, or in response to a notice under subsection (1) of section 142, (i) if any tax or interest is found due on the basis of such return, after adjustment of any tax deducted at source, any advance tax paid and any amount paid otherwise by way of tax or interest, then, without prejudice to the provision of sub-section (2), an intimation shall be sent to the assessee specifying the sum so payable, and such intimation shall be deemed to be a notice of demand issued under section 156 and all the provisions of this Act shall apply accordingly ; and (ii) if any refund is due on the basis of such return, it shall be granted to the assessee : Provided that in computing the tax or interest payable by, or r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee. In a way, the said clause (iii) of the proviso is analogous to section 154 of the Act. Where it is evident from the return as filed, along with the documents in support thereof, that a claim of the assessee is inadmissible, only then an adjustment under the said proviso can be made. If proof in support of the claim is not, furnished by an assessee, then for the lack of proof, no disallowance or an adjustment can be made. The only option which is open to the Income-tax Officer, in such a case, is that he can require the assessee to furnish proof in which case he will presumably have to issue notice under section 143(2). This is also evident from the fact that, except for the documents specified, the assessee is not required to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not claimed, or claimed at a figure which is less than or in excess of the permissible limit. (ii) While computing income under the head 'Income from house property', deduction for 1/6th for repairs or for a new unit under the proviso to section 23(1) is not claimed, or claimed at a figure which is less than or is in excess of the permissible amount. (iii) While computing income under the head 'Profits and gains of business or profession', depreciation is claimed at rates lower or higher than those provided for in the Income-tax Rules. (iv) While computing capital gains, deduction of Rs. 10,000 under section 48(2) is not claimed or claimed less or in excess of this amount. (v) Carried forward speculation loss set off against income from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de to the returned income or loss." The aforesaid examples contained in the circular clearly show that, for want of proof, no disallowance or adjustment can be made. It is only when a disallowance is evident from the facts on record that an adjustment can be made." 6. The said four additions are clearly contrary to the observations and the ratio of the aforesaid decision as they relate to debatable issues or aspects which required examination of explanation or production of documents which were not required to be filed with the return. 7. This leaves us with the main contentious addition, i.e. the disallowance under Section 43B of the Act. In the tax audit report enclosed with the return, the tax auditor in the column No. 7, under the he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he return of income under sub-section (1) of section 139 in respect of the previous year in which the liability to pay such sum was incurred as aforesaid and the evidence of such payment is furnished by the assessee along with such return:" 11. As per the said proviso the assessee could pay the sums covered by clauses (a) to (f) in respect of liability of the previous year, at any time but before the due date of filing of the return. However, the proviso mandates that evidence of such payments should be furnished by the assessee along with the return of income. In the case of S.R.F. Charitable Trust (supra) distinction has been drawn between the documents which are mandated and required to be filed with the return and documents or evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
