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TMI Blog2019 (7) TMI 1956X X X X Extracts X X X X X X X X Extracts X X X X ..... e requires to be examined at the end of AO. Accordingly, we set aside the order passed by ld CIT(A) on this issue and restore the same to the file of the AO. Since the Revenue has not challenged the decision rendered by the ld CIT(A), the relief granted by the first appellate authority shall remain intact. Admission of additional claim - Setting of loss suffered in passenger service fee/service component against the business income - HELD THAT:- We noticed that the claim of the assessee has not been examined by the AO, since the said claim was made for the first time before the ld CIT(A) by the assessee. Though the decision rendered by Hon ble Supreme Court in the case of Goetze India Ltd. [ 2006 (3) TMI 75 - SUPREME COURT ] stated that the additional claim can be made by filing a revised return only, yet the Hon ble Supreme Court has made it clear that the same will not impinge upon the power of the Tribunal to admit additional claims. Accordingly, we admit the claim of the assessee. As AR submitted that, by applying the same analogy, the assessee may not be entitled for deduction of loss suffered under this head, but sought an opportunity to explain its stand before AO. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Kaypee Mechanical India Pvt. Ltd. [ 2014 (4) TMI 829 - GUJARAT HIGH COURT ] Accordingly, we set aside the order passed by ld CIT(A) and direct the AO to delete the disallowance of interest paid on delayed remittance of service tax and VAT. Appeal filed by the assessee is treated as allowed for statistical purposes. - ITA No.2189/Bang/2016 - - - Dated:- 9-7-2019 - SHRI N.V VASUDEVAN, VICE PRESIDNET AND SHRI B.R BASKARAN, ACCOUNTANT MEMBER Appellant by : Shri Sunil Jain, C.A Respondent by : Shri P.V Pradeep Kumar, CIT O R D E R Per B.R Baskaran, Accountant Member The appeal filed by the assessee is directed against the order 31/10/2016 passed by Ld CIT(A)-3, Bengaluru and it relates to the assessment year 2009-10. 2. The assessee company is engaged in the business of operating, maintaining, developing, designing, constructing, financing and managing the airport and development of related infrastructure. The assessment for the year under consideration was completed by the AO by making various additions. The assessee got partial relief before ld CIT(A) and hence the assessee has filed this appeal before us. 3. The first issue relates to disall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er passed by ld CIT(A) on this issue and restore the same to the file of the AO. Since the Revenue has not challenged the decision rendered by the ld CIT(A), the relief granted by the first appellate authority shall remain intact. 7. The next issue relates to rejection of claim of the assessee made before Ld CIT(A) for setting of loss suffered in passenger service fee/service component against the business income. 8. The facts relating to the above said issue is discussed in brief:- The assessee has collected passenger service fee (security component) from the Airlines on behalf of Govt. of India. According to the assessee, the amount so collected is held by the assessee in fiduciary capacity and is used by it for prescribed purposes like payment of salary to security personnel etc. After incurring prescribed expenditure out of the funds so collected, the assessee suffered a loss of 77.18 lakhs during the year under consideration. The assessee did not claim the same as deduction in the return of income filed by it and hence there was no occasion for the AO to examine this aspect. However, before Ld CIT(A), the assessee claimed that the above said loss should be allowed as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... khmi Foundation is a charitable organization registered under the Income-tax Act. The AO took the view that an amount of Rs.221.34 lakhs paid to GMR Varalaskhmi Foundation is in the nature of donation and accordingly disallowed the same. The AO also disallowed the remaining amount of Rs.105.60 lakhs. Considering the same as capital in nature and further holding that the same was not incurred wholly and exclusively for the purpose of business of the assessee. The ld CIT(A) confirmed the disallowance by holding that a) The amount spent by the assessee is in the nature of corporate social responsibility activities and hence the same is in the nature of application of income. b) The assessee has not furnished any cogent evidence to substantiate its claim that the expenditure so incurred has facilitated its business operations. c) The amount of Rs.221.34 lakhs paid to GMR Varalaskhmi Foundation is in the nature of donation and further no details have been furnished with regard to actual utilization of funds by the above said foundation. d) The nature of utilization of amount spent directly by the assessee is also not clear from the details furnished. 13. The ld AR submitt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e incurred on Statue is not furnished. Further, a sum of Rs.220.00 lakhs has been given to GMR Varalaskhmi Foundation. We have noticed that the AO has mentioned the amount paid to above said organization as Rs.221.36 lakhs. Hence, there appears to be some obscurity with regard to the payment made to GMR Varalakshmi Foundation and this difference needs to be reconciled. However, the details of expenditure incurred by the above said charitable organization were not furnished. We have noticed that the tax authorities have taken the view that the amount paid to this organization is in the nature of donation, while the assessee claims the same to be reimbursement. Before us, the Ld A.R placed reliance on the resolution passed by Board of directors. However, in our view, the financial statements of M/s GMR Varalakshmi Foundation may be helpful to determine the character of amount paid to it by the assessee. Hence the financial statements of GMR Varalakshmi Foundation also require examination. There is no dispute that this expenditure has been incurred under the head corporate social responsibility . However, we noticed from the decisions relied on by the assessee to support its claim th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision rendered by Hon ble Supreme Court in the case of Bharat Commerce and Industries Ltd., (Supra). However, a perusal of the said decision would show that the Hon ble Supreme Court has dealt with the case of payment of interest under the Income-tax Act. It was held that if the Income-tax itself is not permissible deduction u/s 37, then any interest paid for default committed by the assessee in discharging the statutory obligation under the Income-tax Act, which is calculated with reference to Income-tax, cannot be allowed as deduction. 19. The issue under consideration is related to interest paid delayed payment of service tax. There is no dispute that the amount paid as service tax is allowable as deduction. Hence the decision rendered by Hon ble Supreme Court in the case of Bharath Commerce and Industries Ltd., (Supra), will not apply to the facts of the present case. On the contrary, the claim of the assessee gets support from decision rendered by Hon ble Supreme Court in the case of Lakmandas Maturdas (Supra)) and Hon ble High Court in the case of Kaypee Mechanical India Pvt. Ltd., (Supra). Accordingly, we set aside the order passed by ld CIT(A) and direct the AO to delet ..... X X X X Extracts X X X X X X X X Extracts X X X X
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