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TMI Blog2023 (9) TMI 472X X X X Extracts X X X X X X X X Extracts X X X X ..... ook profit under section 115JB of the Act is also restored to the file of AO for de novo adjudication.Grounds raised by the assessee are allowed for statistical purposes. Allowability of payment of gratuity - CIT(A) has passed the order ex-parte due to the non-appearance of/on behalf of the assessee - HELD THAT:- Now in appeal before us, the assessee is duly represented by the learned Authorised Representative ( learned AR ) and wishes to pursue the litigation against the addition made by the AO. The assessee has also filed the paper book enclosing the proof of payment of gratuity. We find that the assessee also filed a rectification application dated 16/03/2090 before the AO enclosing the payment receipt of the premium paid. As evident from the record that all these details were neither furnished during the assessment proceedings nor furnished before the learned CIT(A). Therefore, we deem it appropriate to restore the issue of allowability of payment of gratuity to the file of the AO for de novo adjudication after consideration of all the details/submissions as filed by the assessee. The impugned order is set aside and the grounds raised by the assessee are allowed for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thdraw any ground of appeal either before or at the time of hearing of this appeal. 3. The brief facts of the case as emanating from the record are that the assessee is engaged in the manufacture of a range of products for the conservation and preservation of the earth, water banks, etc. For the year under consideration, the assessee originally filed its return of income on 29/11/2011 declaring a total income of Rs. nil under normal provisions of the Act after set off of brought forward losses, and tax was paid on book profit of Rs. 1,41,63,331 determined under section 115JB of the Act. The return filed by the assessee was selected for scrutiny and vide order dated 27/03/2015 passed under section 143(3) read with section 92CA the total income of the assessee was assessed at Rs. 12,98,000 and tax payable was determined on book profit of Rs.1,41,63,331 computed under section 115JB of the Act. Thereafter, the assessment was reopened under section 147 of the Act and vide order dated 29/12/2016 passed under section 143(3) read with section 147 of the Act the total income of the assessee was assessed at Rs. 12,98,000 and tax payable was determined on book profit of Rs. 9,00,84,965 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee has not filed any documentary evidence in support of its claim. Accordingly, the AO added the amount of Rs. 3,00,73,421, being the receipts from Sunway Construction as appearing in Form 26AS for the financial year 2010-11 of M/s Sargon Geosynthetics Ltd., to the total income of the assessee computed under normal provisions and also to the book profit under section 115JB of the Act. 5. The learned CIT(A), vide impugned order, dismissed the appeal filed by the assessee and upheld the addition made by the AO. Being aggrieved, the assessee is in appeal before us. 6. We have considered the submissions of both sides and perused the material available on record. It is evident from the record that the AO made the addition of an amount of Rs. 3,00,73,421 on the basis of the information received from DCIT, Circle-22(1), New Delhi that M/s Sargon Geosynthetics Ltd. (now merged with the assessee) received the aforesaid amount from Sunway Construction during the financial year 2010-11 and the said amount is not offered to tax despite the fact that the said amount is appearing in Form 26AS of M/s Sargon Geosynthetics Ltd for the financial year 2010-11. However, as per the assessee, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purposes. ITA No.1189/Mum./2023 Assessee s Appeal A.Y. 2016 17 8. In its appeal, the assessee has raised the following grounds: 1. On the facts and circumstances of the case, and in law, the Assessment Order passed by the Learned Assessing Officer ('Ld. AO') and NFAC is bad in law. 2. That the Ld. AO and NFAC grossly erred on facts and in law in making disallowance of payment of gratuity of INR 93,16,597 on the basis that the same is not appearing in Tax Audit Report. 3. That the Ld. AO and NFAC grossly erred on facts in not appreciating that Appellant had arrangement with LIC for such gratuity payments are maintained managed through Life Insurance Corporation of India (LIC). 4. That the Ld. AO and NFAC grossly erred on law that the payment of Gratuity maintained by LIC can be claimed as a deduction while computing the total income and would not be hit by the provision of sections 40A(7) and 40A(9) of the Act. 5. That the Ld. AO and NFAC failed to consider the documentary evidence submitted by the Company for the payment of gratuity made on different dates during the financial year 2015-16 and proceeded to disallow the same solel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration. 10. In the appeal before the learned CIT(A), despite notices being issued, no reply/submission was filed on behalf of the assessee. Accordingly, vide impugned ex parte order dated 14/02/2023, the learned CIT(A) dismissed the appeal filed by the assessee. Being aggrieved, the assessee is in appeal before us. 11. We have considered the rival submissions and perused the material available on record. It is evident that the learned CIT(A) has passed the order ex-parte due to the non-appearance of/on behalf of the assessee. Now in appeal before us, the assessee is duly represented by the learned Authorised Representative ( learned AR ) and wishes to pursue the litigation against the addition made by the AO. The assessee has also filed the paper book enclosing the proof of payment of gratuity. We find that the assessee also filed a rectification application dated 16/03/2090 before the AO enclosing the payment receipt of the premium paid. However, it is evident from the record that all these details were neither furnished during the assessment proceedings nor furnished before the learned CIT(A). Therefore, in view of the above, we deem it appropriate to restore the iss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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