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TMI Blog2022 (11) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... (4) TMI 1461 - ITAT MUMBAI] as held a ssessee has not refuted contentions of the Revenue. It is a trait law that the Assessing Officer has no power to go behind accounts drawn in First Schedule applicable to insurance companies, however, the Assessing Officer can always examine correctness of the claim of the assessee with regard to deduction claimed after computation of income. The intent of Legislature while framing special provision for insurance companies can by no means be to allow the benefit of double deduction of the same amount. The CIT(A) in the impugned order has illustrated the impact of assessess e claim of donation as expenditure in P L account on actuarial valuation. The non-obstinate clause does not impinge the powers of Assessing Officer to examine deductions claimed after computation of income. The Assessing Officer after examining the treatment given by assessee to the donation made to the foundation concluded that the assessee has taken undue benefit of double deduction of the same amount, hence, disallowed assessee s claim made after computation of income. The findings of the Assessing Officer have been upheld by the CIT(A) . We concur with the findings of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the appellant; Validity of reopening proceedings:- 2. erred in re-opening the assessment proceedings for the captioned Assessment Year ('AY') under section 147 of the Act without appreciating that the reopening proceedings are invalid and bad in law; 3. erred in re-opening the assessment proceedings beyond a period of four years from the end of the assessment year, without appreciating the fact that there was no failure on part of the Appellant to disclose facts truly and fully; 4. erred in re-opening the assessment proceedings for the captioned AY without any new tangible material coming to his notice post the assessment; 5. erred in re-opening the assessment proceedings for the captioned AY on the basis of a mere change in opinion and without any live linkage of the impugned material with the escapement of income; 6. erred in confirming the reopening of assessment, without appreciating that the reason for reopening (i.e. basis for initiation of reopening) was only on account of disallowance made under section 14A of the Act which was deleted by the Hon'ble CIT(A) and thereby the Hon'ble CIT(A) erred in confirming the reopening ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duction under section 80G to tune of Rs. 5.00,00,000 13.erred in denying the claim of deduction under section 80G of the Act amounting to Rs. 5,00,00,000 (being 50% of Rs. 10,00,00,000, which is the amount actually paid); 14. ought to have appreciated that the appellant had fulfilled all the necessary conditions for claiming deduction under section 80G and had thereby rightfully claimed the deduction under section 80G of the Act; Initiation of penalty proceedings under section 271(1)fc) of the Act 15.erred in confirming the initiation of penalty proceedings under section 271(1)(c) of the Act; Charging of interest under section 234B of the Act 16. erred in confirming levy of interest under section 234B of the Act; Charging of interest under section 234C of the Act 17. erred in confirming levy of interest under section 234C of the Act; Charging of interest under section 234D of the Act 18. erred in confirming levy of interest under section 234D of the Act; The appellant craves, to consider each of the above grounds of appeal without prejudice to each other and craves, leave to add, alter, delete or modify all or any of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3,000/- qua the interim bonus paid to the total income of the assessee. AO also made disallowance of the claim or deduction claimed by the assessee under section 80G of the Act to the tune of Rs.5,00,00,000/- and thereby framed the assessment at the total income of Rs.18736,95,55,984/-. 5. Assessee carried the matter before the Ld. CIT(A) by way of filing appeal who has partly allowed the same. Feeling aggrieved with the impugned order passed by the Ld. PCIT(A) both assessee as well as Revenue have come up before the Tribunal by way of filing present cross appeals. 6. We have heard the Ld. Authorised Representatives of the parties to the appeal, perused the orders passed by the Ld. Lower Revenue Authorities and documents available on record in the light of the facts and circumstances of the case and law applicable thereto. 7. Ground No.1 is general in nature, hence needs no specific findings. Grounds No.2 to 6: 8. These grounds pertaining to reopening of assessment under section 147 of the Act not pressed by the assessee, hence the same are dismissed. Grounds No.7 to 12: 9. Assessee corporation has paid a sum of Rs.1003,53,93,000/- as interim bonus to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 9, the remainder shall be paid to the Central Government or, if that Government so directs, be utilised for such purposes and in such manner as that Government may determine.] [28A. Profits from any business (other than life insurance business) how to be utilized.-- If for any financial year profits accrue from any business (other than life insurance business) carried on by the Corporation, then, after making provision for reserves and other matters for which provision is necessary or expedient, the balance of such profits shall be paid to the Central Government.] If section 28 is analyzed, with respect to surplus from life insurance business and its utilization, it is clear that 95% of such surplus or such higher percentage thereof, as the central government may approve shall be allocated to or reserve for life insurance policy holders of the corporation and after meeting the liability of corporation, if any, which may arise u/s 9, the reminder shall be paid to the Central Government or if the Central Government so direct, shall be utilized for such purposes and in such manner as the government may determine. Considering the clear language of the sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction(5A) of section 80G of the Act . The ld.Authorized Representative of the assessee referring to the provisions of section 44 of the Act submits that the non-obstinate clause is only to the extent of computation of income chargeable to tax under the heads mentioned in the section. The benefit of provisions of section 80G is claimed after computation of total income. The ld. Authorized Representative of the assessee submitted that the Assessing Officer cannot go behind the income computed in accordance with the rules contained in First Schedule. 18. On the other hand, ld.Departmental Representative vehemently supported the order of CIT(A). The ld.Departmental Representative submitted that the assessee has claimed donation made to the Foundation in P L Account and has also claimed deduction under section 80G without adding back the same in computation of income. Thus, this amounts to double deduction in respect of the donation made to the foundation. Once it is claimed as expenditure in the P L Account and thereafter without adding back the same amount , the assessee claimed benefit of deduction under section 80G on the same amount. Thus, the assessee has taken the benefit o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of income. The intent of Legislature while framing special provision for insurance companies can by no means be to allow the benefit of double deduction of the same amount. The CIT(A) in para 3.4.9 of the impugned order has illustrated the impact of assessess e claim of donation as expenditure in P L account on actuarial valuation. 20.1 In so far as argument of ld.Authorized Representative of the assessee that section 44 would also override the provisions of subsection (5A) of section 80G, we do not concur with the same. A bare perusal of section 44 would show that, in an unambiguous terms the provisions of section list out the head of income/section it would override for the purpose of computation of income. The non-obstinate clause does not impinge the powers of Assessing Officer to examine deductions claimed after computation of income. The Assessing Officer after examining the treatment given by assessee to the donation made to the foundation concluded that the assessee has taken undue benefit of double deduction of the same amount, hence, disallowed assessee s claim made after computation of income. The findings of the Assessing Officer have been upheld by the CIT(A) . ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd.(supra) is in respect of income from Insurance business only, therefore the said decision would not apply to the facts of present case. 9. Submissions made by ld.Departmental Representative heard. We find that in para 48 and 50 of the order of CIT(A) referred to by the ld. Departmental Representative is the reproduction of the order Tribunal in ITA Nos.3702, 6221, 3703/Mum/2012 for assessment year 2009-10. There is no finding by the CIT(A) that the assessee is having income from any other source other than insurance business during the period relevant to the assessment year under appeal. Hence, the argument made by the ld. Departmental Representative is devoid of any merit. The issue whether the disallowance under section 14A r.w.r. 8D can be made in the case of assessee engaged in insurance business is squarely covered by the decision of Co-ordinate Bench in the case of Birla Sunlife Insurance Co. Ltd.(supra). The Co-ordinate Bench placing reliance on the decision in the case of Oriental Insurance Co. Ltd vs. Assistant CIT reported as 130 TTJ 388 (Delhi) has held that no disallowance under section. 14A of the Act can be made in the case of company engaged in insurance ..... 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