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TMI Blog2016 (5) TMI 1480X X X X Extracts X X X X X X X X Extracts X X X X ..... - Held that:- AR to substantiate the genuiness of payment supported the grounds with copies of form no.16 issued by the assessee company as employer to employees and the breakup was reflected in the profit and loss account for the year ending 31.03.2011 under the schedules of personal expenses. The assessee filed extract of ICICI Bank statement in support of gratuity payments. Prime facie it is a clear case of mistake in not claiming deduction by the assessee company. Considering the provisions of law, subject to verification by the AO and we rely on the Apex Court decision CIT vs. Shelly Products and Another [2003 (5) TMI 4 - SUPREME COURT] - Considering the apparent facts, factual evidence, claim of deduction and decision of Apex Court, we remit the disputed issue to the file of Assessing Officer to verify and examine the genuiness of the claim and allow deduction and Assessing Officer shall provide adequate opportunity of being heard to assessee before passing the order - Appeal of the assessee is allowed for statistical purpose. - I.T.A. No. 449/Mds/2016 - - - Dated:- 19-5-2016 - Shri Chandra Poojari And Shri G. Pavan Kumar, JJ. Appellant by : Shri. N.V. Balaji, Advoca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... international transactions entered with related parties above ;15 Crores and with the prior approval, the case was referred to TPO. The ld.TPO vide order No.F. No.V-316/TPO-III/A.Y.2011-12, dated 24.09.2014 found the value of transaction for determining Arms Length Price (ALP) is correct and there is no requirement of adjustment of international transactions. The ld. Assessing Officer considering the TPO order and disallowed interest on service tax and passed assessment order u/s.143(3) dated 06.03.2015. The assessee company is also covered by provisions of Sec. 115JB of the Act and ld. Assessing Officer calculated tax and raised demand without considering the surcharge and cess of MAT credit. Aggrieved by the order, the assessee filed an appeal before Commissioner of Income Tax (Appeals). 4. In the appellate proceedings, the ld. Authorised Representative raised grounds on disputed issue of allowing MAT credit. The ld. Authorised Representative submitted that for the assessment years 2008-2009, 2009-2010 and 2010-2011, the assessee company has paid taxes under provisions of Sec. 115JB of the Act and filed return of income. In the current assessment year, the assessee has brough ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edit to the extent of tax portion of earlier years and not allowed surcharge and educational cess. In the current assessment year, the assessee company liable to pay income tax based on the normal computation of income, in such circumstances the assessee is eligible for MAT credit carried forwarded from earlier assessment years u/s.115JA of the Act. Under the provisions of Sec. 115JB tax components deemed to have included surcharge and educational cess. This view was considered by the Apex Court in the case of CIT vs. K. Srinivasan 83 ITR 0346 were words income-tax in the Finance Act of 1964 in sub-sec(2)(a) and sub-se(2)(b) of Sec. 2 would include surcharge and additional surcharge. A similar issue was decided by the Co-ordinate Bench of the Tribunal in ITA No.2122/Mds/2015, dated 03.02.2016 in the case of M/s. Saint Gobain Gyproc India Ltd in assessment year 2013-2014 held in para 7 as under:- We heard the rival contentions of both the parties perused the material on record and also judicial decision cited. The assessee company has claimed Mat credit set off against income tax on normal provisions which is allowable and such MAT credit can be carried forward also. Under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e assessee. 8. On the second ground, the assessee has filed additional ground and filed a petition for admission of fresh claim of deduction towards gratuity paid as same was not claimed in the original return of income. The ld. Departmental Representative has objected to additional grounds because assessee has not preferred the claim in the assessment proceeding or in appellate proceedings and the ld. Assessing Officer was deprived of opportunity to verify the claim. The ld. Authorised Representative explained that the assessee company has paid gratuity to the employees who left the company during the financial year 2010-11 ;2,94,719/- and due to change in management the company has failed to claim the deduction and supported the claim with documentary evidence and confirmations. The ld. Authorised Representative submitted that the assessee company has made provision for gratuity in the books of account and at the time of preparing computation of income the assessee has disallowed provision for gratuity which also includes gratuity payments. The ld. Authorised Representative further substantiated the grounds by providing the actual valuation report under AS-15 of ICAI and ledge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n CIT vs. Shelly Products and Another 261 ITR 367 were it was held as under:- We cannot lose sight of the fact that the failure or inability of the Revenue to frame a fresh assessment should not place the assessee in a more disadvantageous position than in what he would have been if a fresh assessment was made. In a case where an assessee chooses to deposit by way of abundant caution advance tax or self-assessment tax which is in excess of his liability on the basis of the return furnished or there is any arithmetical error or inaccuracy, it is open to him to claim refund of the excess tax paid in the course of the assessment proceeding. He can certainly make such a claim also before the concerned authority calculating the refund. Similarly, if he has by mistake or inadvertence or on account of ignorance, include in his income any amount which is exempted from payment of income-tax, or is not income within the contemplation of law, he may likewise bring this to the notice of the assessing authority which if satisfied, may grant him relief and refund the tax paid in excess, if any. Such matters can be brought to the notice of the concerned authority in a case where refund is du ..... X X X X Extracts X X X X X X X X Extracts X X X X
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