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TMI Blog2024 (11) TMI 1246X X X X Extracts X X X X X X X X Extracts X X X X ..... 153 A/B/C - HELD THAT:- We are of this considered view that the issue decided in the case of CIT vs. Sun Engineering Works [ 1992 (9) TMI 1 - SUPREME COURT] is not applicable on claim made in returns filed in response to notice u/s 153 A/B/C. Accordingly, the findings given by the CIT(A) on this issue cannot be sustained and, thus, the appeal filed by the Assessee on this issue is allowed. Disallowance of credit of TDS - as per CIT(A) credit of TDS is to be given only with regard to the TDS deducted in appellant s name during the year under consideration and further restricted to the business income from the case assessed in appellant s hand - HELD THAT:- We are of this considered view that it is only the Assessing Officer who can calculate the refund of TDS to the appellant ( in case applicable) as per the provisions of the Income Tax Act, 1961. Accordingly, we direct the Assessing Officer to calculate the amount of refund to be given to the appellant as per the provisions of the I.T. Act. Accordingly, this ground stands allowed. - HON BLE SHRI A.D. JAIN, VICE PRESIDENT SHRI KRINWANT SAHAY, ACCOUNTANT MEMBER For the Appellant : Shri Tej Mohan Singh, Advocate For the Respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to establish the identity of the payees and genuineness of these transactions nor the business expediency with regard to this payments was established. The case laws relied upon by the appellant company differ on facts on account of above discussions and hence not applicable to the case of appellant company. In view of the above discussions, the addition of Rs. 71,950/- made by AO is confirmed. 7. During the proceedings before us, the ld. Counsel for the Assessee has filed a written submissions on this issue, which is as under:- During the course of the assessment proceedings it was submitted that the following payments were in excess of limits as specified under section 40A(3): Particulars Amount (Rs.) Excess of section 40A(3) (Rs) Ms. Ajay Sharma 22,600/- 2,600/- Ms. Gunjan 22,500/- 2,500/- Mr. Sahil 23,450/- 3,450/- Total 71,950/- The nature of the assessee's business is varied and no two events are comparable. Payments have to be made sometimes on the spot in cash in order the assessee's business does not suffer or is hampered. There are certain expenses which are sometimes not predictable or planned at the time of conceptualizing an event. These expenses are extreme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence is an error in law. 9. We have considered the findings of the Assessing Officer as well the discussion of the ld. CIT(A) on this issue in his appeal order. We have also gone through the submissions filed by the ld. Counsel for the Assessee and we have considered his arguments. 10. The ld. DR relied on the submissions made by the Department as well as the findings given by the ld. CIT(A) on this issue. 11. We find that neither the Assessing Officer in his assessment order nor the CIT(A) has doubted the payments made of Rs. 71,950/- to three people Mr. Ajay Sharma Ms. Gunjan and Mr. Sahil. They have simply disallowed it because the amount was in excess of section 40A(3). The ld. Counsel for the Assessee has filed details of different items for which payments were made to these people. In fact, the Assessee is running the business of event management and, therefore, during celebration of an event, cash payment is a must for items like taxi/vehicle, fuel charges, meals for workers, petrol for generator, engine oil for genset, cameras its rolls and photo development, truck repair and challan, sound repair, communications i.e., fax, courier, mobile etc. 12. The ld. Counsel has also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sustained. Accordingly, the Assessee s appeal on this issue is allowed. 14. Appeal on Ground No. 4 is against the disallowance of deduction claimed u/s VI-A to the tune of Rs. 77,500/-. The Assessing Officer has given his findings on this issue which has been upheld by the ld. CIT(A) which is as under:- While filing the Return of income u/s 153A/153C of the Act, tome of the assessee have claimed deduction u/s 80C and 80D of the Act. No such claim was made while filing the return of income u/s 139(1)/139(4) of the Act. The provisions of section 153A/153C are not made for the benefit of the assessee. Return filed in response to notice u/s 153A/153C is not substitute of revised return for the assessee to claim such benefit. Hon'ble Apex Court in case of Goetze (India) Ltd. vs CIT (284 ITR 323) ruled that a fresh claim before the assessing officer can be made only by filing of Revised Return and not otherwise. Therefore, whatever claim the assessee has not made while filing the return u/s 139(1)/139(4) of the Act, he cannot make fresh claim by filing the return u/s 153A/153C of the Act and reduce the taxable income originally declared. Such view has been upheld by Hon'ble Raja ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... td., [2015] 58 taxmann.com 78/232 Taxman 270/374 ITR 645 (Bom.) (para 6.5) and Dy. CIT v Eversmile Construction Co.(P.) Ltd [2012] 65 DTR 39 (Mum.-Trib) (Para 6.5) 18. The ld. DR relied on the order of the CIT(A) on this issue. 19. We have considered the findings given by the Assessing Officer and the ld. CIT(A) as well as the submission filed by the Department on this issue. We have also considered the submission the Counsel of the Assessee as well as different case laws brought on record by him and considered the submissions of the ld. DR. 20. On the basis of material available on record as well as on the basis of decisions pronounced by different judicial authorities on this issue, we are of this considered view that the issue decided by the Hon'ble Supreme Court in the case of CIT vs. Sun Engineering Works , (supra) is not applicable on claim made in returns filed in response to notice u/s 153 A/B/C. Accordingly, the findings given by the CIT(A) on this issue cannot be sustained and, thus, the appeal filed by the Assessee on this issue is allowed. 21. Appeal on Ground No. 5 is against the disallowance of credit of TDS of Rs. 1,81,185/- to the Assessee. The ld. CIT(A) in his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30. We find that we have already adjudicated and decided this issue in the former part of this order wherein after due deliberation, the issue has been decided in favour of the Assessee. On similar lines, this ground, i.e., Ground No.2, is decided in favour of the Assessee. 31. Appeal on Ground No. 3 is against the disallowance of credit of TDS of Rs. 1,40,341/- to the Assessee. The ld. CIT(A) in his order has given his findings on this issue that the credit of TDS is to be given only with regard to the TDS deducted in appellant s name during the year under consideration and further restricted to the business income from the case assessed in appellant s hand. 32. We find that the similar issue relating to disallowance of credit of TDS, has already been adjudicated by us while deciding the Ground No. 5 of Assessee s appeal in ITA No.156/Chd/202. Further, both the representatives have fairly conceded that the issue is exactly similar. In view thereof, considering the decision arrived at by us above while deciding the similar issue in Ground No. 5 of Assessee s appeal for A.Y. 2009-10, this ground is decided in favour of the Assessee. 33. Accordingly, we direct the Assessing Officer t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been accounted for in the assessee's income. 4. That the appellant craves leave to add, to alter, to amend or vary from the aforesaid grounds of appeal at or before the time of hearing of the said appeal. 43. Ground No.1 is general in nature. 44. Appeal on Ground No. 2 is against the disallowance of deduction claimed u/s 80C to the tune of Rs. 82,273/-. 45. Both the ld. Counsel of the Assessee and the ld. DR submitted that this ground is identical to that of Ground No.4 of the Assessee s appeal in ITA No. 156/Chd/2019, except the amount involved and, therefore, our submissions are identical and the same may be considered. 46 We find that we have already adjudicated and decided this issue in the former part of this order wherein, after due deliberation, the issue has been decided in favour of the Assessee. On similar lines, this ground No.2 is decided in favour of the Assessee. 47. Appeal on Ground No. 3 is against the disallowance of credit of TDS of Rs. 3,01,316/- to the Assessee. The ld. CIT(A) in his order has given his findings on this issue that the credit of TDS is to be given only with regard to the TDS deducted in appellant s name during the year under consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 5 of Assessee s appeal in ITA No.156/Chd/202. Further, both the representatives have fairly conceded that the issue is exactly similar except the extant of amount involved. In view thereof, considering the decision arrived at by us above while deciding Ground No.5 of Assessee s appeal in ITA No. 156/Chd/2019, this ground is decided in favour of the Assessee. 57. Accordingly, we direct the Assessing Officer to calculate the amount of refund to be given to the appellant as per the provisions of the I.T. Act. Accordingly, this ground stands allowed 58. Ground No.4 is general in nature. 59. In the result, the appeal of the Assessee stands allowed. ITA No.171/Chd/2019 (A.Y. 2012-13) 60. In this appeal, the Assessee has taken following grounds of appeal: 1. That the order of the Ld. Commissioner of Income Tax (Appeals)-3 is not a speaking order, is erroneous, arbitrary, opposed to law and facts of the case. 2. That the Ld. Commissioner of Income Tax (Appeals) 3 has erred in adding an amount of Rs. 33,505/- on account of disallowing deduction claimed u/s 80C. 3. That the Ld. Commissioner of Income Tax (Appeals) 3 has wrongly disallowed credit of TDS of Rs. 1,42,882/- though the incom ..... X X X X Extracts X X X X X X X X Extracts X X X X
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