M/s District Co-operative Bank Ltd., Barabanki v. Asstt. Commissioner of Income Tax, Lucknow

ITA 101/LKW/2013 | 2009-2010
Pronouncement Date: 31-07-2015 | Result: Allowed

Appeal Details

RSA Number 10123714 RSA 2013
Assessee PAN AAAAD2777N
Bench Lucknow
Appeal Number ITA 101/LKW/2013
Duration Of Justice 2 year(s) 5 month(s) 1 day(s)
Appellant M/s District Co-operative Bank Ltd., Barabanki
Respondent Asstt. Commissioner of Income Tax, Lucknow
Appeal Type Income Tax Appeal
Pronouncement Date 31-07-2015
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 31-07-2015
Date Of Final Hearing 17-06-2015
Next Hearing Date 17-06-2015
Assessment Year 2009-2010
Appeal Filed On 27-02-2013
Judgment Text
1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV JUDICIAL MEMBER AND SHRI A.K. GARODIA ACCOUNTANT MEMBER ITA NO.101/LKW/2013 ASSESSMENT YEAR:2009 - 2010 A.C.I.T. - V LUCKNOW. VS M/S DISTRICT CO - OPERATIVE BANK LTD. FAIZABAD ROAD BARABANKI. PAN:AAAAD2777N (RESPONDENT) (APPELLANT) SHRI B. P. YADAV C.A. APPELLANT BY SMT. SWATI RATNA D. R. RESPONDENT BY 25/06/2015 DATE OF HEARING 31 /07/2015 DATE OF PRONOUNCEMENT O R D E R PER A. K. GARODIA A.M. THIS IS ASSESSEES APPEAL DIRECTED AGAINST THE ORDER PASSED BY LEARNED CIT(A) - II LUCKNOW DATED 07/01/2013 FOR THE ASSESSMENT YEAR 2009 - 2010. 2. GROUND NO. 1 & 2 ARE INTER CONNECTED WHICH READ AS UNDER: 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) - II LUCKNOW (HEREINAFTER REFERRED TO AS THE LD. CIT(A) ERRED ON FACTS AND IN LAW IN NOT ALLOWING THE ADDITIONAL GROUND OF THE APPELLANT FOR GIVING CREDIT OF BROUGHT FORWARD LOSSES. 2. ON THE FACTS STATED IN THE STATEMENT OF FACTS THE LD. CIT(A) WAS NOT JUSTIFIED IN REJECTING THE ADDITIONAL GROUNDS OF APPEAL TAKEN BY THE APPELLANT. 3. IT WAS SUBMITTED BY LEARNED A.R. OF THE ASSESSEE THAT THIS ISSUE WAS DECIDED BY LEARNED CIT(A) AS PER PARA 7(3) TO PARA 7 (4) OF HIS ORDER ON THE 2 BASIS THAT RETURN OF INCOME FOR ASSESSMENT YEAR 2008 - 09 WAS FILED BY THE ASSESSEE AFTER EXPIRY OF DUE DATE FOR FILING OF RETURN OF INCOME. HE SUBMITTED THAT ADMITTEDLY THE RETURN OF INCOME FOR ASSESSMENT YEAR 2008 - 09 WAS FILED BEYOND DUE DATE AND THEREFO RE LOSS OF THE ASSESSEE IN THAT YEAR OF RS.4 96 203/ - CANNOT BE CARRIED FORWARD AND SER OFF IN THE PRESENT YEAR BUT APART FROM THAT THE ASSESSEE HAS INCURRED LOSS IN ALL EARLIER YEARS I.E. ASSESSMENT YEAR 2004 - 05 TO 2007 - 08 AND IN ALL THOSE YEARS THE RE TURN OF INCOME W ERE FILED BEFORE DUE DATE I.E. ON OR BEFORE 31 ST OCTOBER OF THE RESPECTIVE ASSESSMENT YEAR. HE SUBMITTED THAT THE LOSS OF THOSE YEARS SHOULD BE ALLOWED TO BE SET OFF IN THE PRESENT YEAR. HE ALSO SUBMITTED THAT THE RELEVANT ASSESSMENT ORDE R FOR ASSESSMENT YEAR 2004 - 05 IS AVAILABLE ON PAGES 90 TO 94 OF THE PAPER BOOK AND COPY OF ACKNOWLEDGEMENT FOR ASSESSMENT YEAR 2005 - 06 IS AVAILABLE ON PAGE 95 OF THE PAPER BOOK AND FOR THIS YEAR THERE WAS NO INTIMATION RECEI VED AND NO ASSESSMENT FRAMED U/ S 143(3) OF THE ACT. SIMILARLY THE COPY OF ASSESSMENT ORDER FOR ASSESSMENT YEAR 2006 - 07 IS AVAILABLE ON PAGES 96 TO 99 OF THE PAPER BOOK AND THE ASSESSMENT ORDER FOR ASSESSMENT YEAR 2007 - 08 IS AVAILABLE ON PAGES 100 TO 103 OF THE PAPER BOOK. 4. LEARNED D. R. OF THE REVENUE SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND THAT THE PRESENT ISSUE WAS DECIDED BY LEARNED CIT(A) AS PER PARA 7(4)(B) OF HIS ORDER WHICH IS REPRODUCED BELOW FOR THE SAKE OF REA DY REFERENCE: - 7(4)(B) THE ABOVE PROVISION CONTEMPLATES DETERMINATION OF LOSS IN PURSUANCE OF THE RETURN FILED UNDER SECTION 139(3) OF THE ACT WHICH ARE TO BE CARRIED FORWARD TO BE SET OFF UNDER SECTIONS 72 73 74 OR 74A OF THE ACT. SECTION 139(3) OF THE ACT ALSO REFERS TO THE SAME PROVISION CONTEMPLATING FOR FILING OF THE RETURN WITHIN THE TIME ALLOWED UNDER SECTION 139(1) OF THE ACT AND THUS THE DETERMINATION OF THE LOSS IS PERMISSIBLE WHEN THE 3 RETURN IS FILED WITHIN THE STIPULATED TIME UNDER SECTION 139(1) OF THE ACT. THERE IS NO SUCH PROVISION IN SECTION 72 OF THE ACT BY VIRTUE OF WHICH BUSINESS LOSSES OF EARLIER YEARS SHALL FORM PART OF THE CURRENT YEAR'S BUSINESS LOSSES AND BE ALLOWED TO BE SET OFF FROM CURRENT YEAR'S INCOME. HOWEVER ONLY THE BUSINESS LOSSES OF EARLIER YE ARS WHICH ARE NOTIFIED BY THE ASSESSING OFFICER ARE ALLOWED TO BE CARRIED FORWARD AND SET OFF FROM THE CURRENT YEAR'S INCOME AND FOR WHICH THE CONDITION PRECEDENT IS THAT THE RETURN OF INCOME SHOULD HAVE BEEN FILED IN ACCORDANCE WITH SECTION 139(3) READ WI TH SECTION 139(1) OF THE ACT. ACCORDINGLY THE CLAIM OF SET OFF OF BROUGHT FORWARD LOSSES OF EARLIER YEARS ARE NOT ALLOWABLE TO THE APPELLANT IN VIEW OF SECTION 80 OF THE ACT AS THE RETURN OF INCOME FOR ASSESSMENT YEAR 2008 - 2009 WAS FILED ON 29.03.2009 BEY OND DUE DATE UNDER SECTION 139(1) OF THE ACT. THE EARLIER YEAR'S LOSSES CANNOT THEREFORE BE ALLOWED TO BE SET OFF AS PER SECTION 80 OF THE ACT THE GROUND OF APPEAL FAILS AND IS REJECTED. 5.1 FROM THE ABOVE PARA FROM THE ORDER OF LEARNED CIT(A) WE FIND THAT HIS DECISION IS ON THE BASIS THAT THE RETURN OF INCOME FOR ASSESSMENT YEAR 2008 - 09 WAS FILED LATE. HE HAS ALSO REFERRED TO SECTION 80 AND SECTION 139 (3) OF THE ACT. FOR THE SAKE OF READY REFERENCE WE REPRO DUCE THE PROVISIONS OF BOTH THE SECTIONS WHICH ARE AS UNDER: SECTION - 80 NOTWITHSTANDING ANYTHING CONTAINED IN THIS CHAPTER NO LOSS WHICH HAS NOT BEEN DETERMINED IN PURSUANCE OF A RETURN FILED IN ACCORDANCE WITH THE PROVISIONS OF SUB - SECTION(3) OF SE CTION 139 SHALL BE CARRIED FORWARD AND SET OFF UNDER SUB - SECTION(1) OF SECTION 72 OR SUB - SECTION(2) OF SECTION 73 OR SUB - SECTION(1) OR SUB - SECTION(3) OF SECTION 74 OR SUB - SECTION (3) OF SECTION 74A. SECTION 139 (3) IF ANY PERSON WHO HAS SUSTAINED A LOS S IN ANY PREVIOUS YEAR UNDER THE HEAD 'PROFITS AND GAINS OF BUSINESS OR PROFESSION' OR UNDER THE HEAD 'CAPITAL GAINS' AND CLAIMS THAT THE LOSS OR ANY PART THEREOF SHOULD BE CARRIED FORWARD UNDER SUB - SECTION (1) OF SECTION 72 OR SUB - SECTION (2) OF SECTION 7 3 OR SUB - SECTION (1) OR SUB - SECTION (3) OF SECTION 74 OR SUB - SECTION (3) OF SECTION 74A 4 HE MAY FURNISH WITHIN THE TIME ALLOWED UNDER SUB - SECTION (1) A RETURN OF LOSS IN THE PRESCRIBED FORM AND VERIFIED IN THE PRESCRIBED MANNER AND CONTAINING SUCH OTHER P ARTICULARS AS MAY BE PRESCRIBED AND ALL THE PROVISIONS OF THIS ACT SHALL APPLY AS IF IT WERE A RETURN UNDER SUB - SECTION (1). 5.2 FROM THE PROVISIONS OF SUB SECTION (3) OF SECTION 139 IT IS SEEN THAT ASSESSEES OBLIGATION IS CONFINED TO THE EXTENT THAT I N THE YEAR OF INCURRING LOSS THE ASSESSEE SHOULD FILE THE RETURN OF INCOME WITHIN THE TIME ALLOWED U/S 139(1) OF THE ACT. IN THE PRESENT CASE WE FIND THAT AS PER THE ASSESSMENT ORDER FOR THE ASSESSMENT YEAR 2004 - 05 AVAILABLE ON PAGES 90 TO 94 OF THE PAP ER BOOK THE RETURN OF INCOME WAS FILED BY THE ASSESSEE ON 29/10/2004. HENCE THE RETURN OF INCOME WAS FILED WITHIN THE DUE DATE PRESCRIBED U/S 139(1) OF THE ACT. THE LOSS IN THAT YEAR WAS DETERMINED AT RS.16 13 821.82. SIMILARLY FOR ASSESSMENT YEAR 20 05 - 06 THE RETURN OF INCOME WAS FILED ON 26/08/2005 AS PER ACKNOWLEDGEMENT AVAILABLE ON PAGE NO. 95 OF THE PAPER BOOK AND THE LOSS DECLARED BY THE ASSESSEE IN THAT YEAR OF RS.1 20 98 360/ - . THIS IS THE CLAIM OF THE ASSESSEE THAT THE ASSESSEE HAS NOT RECEIVED ANY INTIMATION AND NO ORDER WAS PASSED U/S 143(3) OF THE ACT BUT THIS FACT HAS TO BE EXAMINED AS TO WHETHER ANY ASSESSMENT WAS FRAMED OR NOT AND IF FRAMED WHAT WAS TH E ASSESSED INCOME BUT THIS IS APPARENT THAT THE RETURN OF INCOME WAS FILED BY THE ASSESSEE WITHIN THE DUE DATE PRESCRIBED U/S 139(1) AND THE ASSESSEE HAS SHOWN LOSS AS PER RETURN OF INCOME. SIMILARLY FOR ASSESSMENT YEAR 2006 - 07 THE RETURN OF INCOME WAS FILED ON 16/01/2006 AND THE LOSS WAS DETERMINED BY THE ASSESSING OFFICER AT RS.11 56 450/ - AS PER ASSESSMENT ORDER U/S 143(3) DATED 03/12/2008. IN ASSESSMENT YEAR 2007 - 08 THE RETURN OF INCOME WAS FILED ON 31/10/2007 AND THE LOSS WAS DETERMINED AT RS.1 59 56 210/ - AS PER ASSESSMENT ORDER U/S 143(3) DATED 29/10/2009. FOR ASSESSMENT YEAR 2008 - 09 ALSO THE ASSESSMENT ORDER IS AVAILABLE ON PAGES 104 TO 105 OF THE PAPER BOOK AND AS PER THIS ASSESSMENT ORDER THE RETURN OF INCOME WAS FILED BY THE ASSESSEE ON 29? 03/2009 WHICH IS BEYOND DUE DATE AND THE INCOME WAS 5 ASSESSED BY THE ASSESSING OFFICER AT LOSS OF RS.4 96 203/ - AS PER ORDER U/S 143(3) DATED 20/10/2012. HENCE THE LOSS FOR THIS YEAR CANNOT BE CARRIED FORWARD AND SET OFF IN THE PRESENT YEAR BUT THIS IS A LSO TRUE THAT THE LOSS OF EARLIER YEAR WAS NOT SET OFF IN THE ASSESSMENT YEAR 2008 - 09. 6. AS PER ABOVE DISCUSSION WE FIND THAT FOR ASSESSMENT YEAR 2004 - 05 2006 - 07 AND 2007 - 08 THE RETURN OF INCOME WAS FILED BY THE ASSESSEE WITHIN DUE DATE PRESCRIBED U/S 139(1) AND THE ASSESSMENT WAS COMPLETED BY THE ASSESSING OFFICER AT A LOSS OF RS.16.14 LAC RS.11.56 LAC AND RS.159.56 LAC RESPECTIVELY AND THESE LOSSES WERE NOT SET OFF IN ASSESSMENT YEAR 2008 - 09 AND THEREFORE LOSSES OF THESE ARE YEAR ARE ELIGIBLE FOR S ET OFF IN THE PRESENT YEAR IF THERE WAS NO SET OFF IN A.Y. 2005 06 OF THE LOSS FOR A.Y. 2004 05. T HE ASSESSMENT ORDER FOR ASSESSMENT YEAR 2005 - 06 IS NOT AVAILABLE AND THEREFORE THIS IS NECESSARY TO FIND OUT AS TO WHAT WAS THE ASSESSED INCOME IN THAT Y EAR ALTHOUGH THE RETURN OF INCOME WAS FILED WITHIN THE DUE DATE FOR THIS YEAR ALSO AND IF IT IS FOUN THAT THERE WAS ANY LOSS ASSESSED IN THAT YEAR SUCH LOSS SHOULD ALSO BE ELIGIBLE FOR SET OFF IN THE PRESENT YEAR . 7. WE HAVE ALSO COME ACROSS A JUDGMENT OF HON'BLE APEX COURT RENDERED IN THE CASE OF CIT VS. MANMOHAN DAS (DECEASED) [1966] 59 ITR 699 (SC) WHEREIN IT WAS HELD ALTHOUGH IN THE CONTEXT OF 1922 ACT THAT W HETHER THE LOSS IN ANY YEAR MAY BE CARRIED FORWARD TO THE FOLLOWING YEAR AND SET OFF AGAINS T THE PROFITS AND GAINS OF THE SUBSEQUENT YEAR HAS TO BE DETERMINED BY THE INCOME - TAX OFFICER WHO DEALS WITH THE ASSESSMENT OF THE SUBSEQUENT YEAR AND A DECISION BY THE INCOME - TAX OFFICER WHO COMPUTES THE LOSS IN THE PREVIOUS YEAR THAT THE LOSS CANNOT BE SET OFF AGAINST THE INCOME OF THE SUBSEQUENT YEAR IS NOT BINDING. HENCE WE FIND THAT AS PER THIS JUDGMENT AND ALSO AS PER PROVISION OF SECTION 139(3) THE ASSESSEE IS REQUIRED TO FILE THE RETURN OF LOSS IN THE RESPECTIVE YEAR WITHIN 6 THE TIME PRESCRIBED U /S 139 ( 1) AND IF THE LOSS IS ACCEPTED IN THE RELEVANT YEAR THEN SUCH LOSS IS ELIGIBLE FOR CARR Y FORWARD AND SET OFF IN FUTURE YEAR AS PER LAW AND THAT ASPECT OF CARR Y FORWARD AND SET OFF OF LOSS HAS TO BE DECIDED BY THE ASSESSING OFFICER WHEN THE SET OFF IS CLAIMED BY THE ASSESSEE. 8. AS PER THE ABOVE DISCUSSION IN PARA 6 & 7 WE FEEL THAT THE ORDER OF CIT(A) IS NOT SUSTAINABLE BUT AT THE SAME TIME THE ISSUE HAS TO GO BACK TO THE FILE OF THE ASSESSING OFFICER FOR FRESH DECISION AFTER FINDING OUT THE OUTC OME OF THE ASS ESSMEN T IN ASSESSMENT YEAR 2005 - 06. WE THEREFORE SET ASIDE THE ORDER OF CIT(A) AND RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR FRESH DECISION AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE IN THE LIGHT OF ABOVE DISCUSSION. GROUND NO. 1 & 2 OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 9. GROUND NO. 3 IS AS UNDER: 3. THE LD. CIT(A) ERRED ON FACTS AND IN LAW IN CONFIRMING THE ADDITION OF RS.1 60 000/ - BY NOT APPRECIATING THE FACTS OF THE CASE AS STATED IN THE STATEMENT OF FACTS. 10. THIS GROUND WAS NOT PRESSED BY LEARNED A.R. OF THE ASSESSEE AND ACCORDINGLY THE SAME IS REJECTED AS NOT PRESSED. 11. GROUND NO. 4 & 5 ARE AS UNDER: 4. THE LD. CIT(A) ERRED ON FACTS AND IN LAW IN CONFIRMING THE ADDITION OF RS.4 16.137/ - BY NOT APPRECIATING THE FACTS OF THE CASE AS STATED IN THE STATEMENT OF FACTS. 5. THE LD CIT(A) ERRED ON FACTS AND IN LAW IN CONFIRMING THE ADDITION OF RS.94 234/ - BY NOT APPRECIATING THE FACTS OF THE CASE AS STATED IN THE ST ATEMENT OF FACTS. 12. LEARNED A.R. OF THE ASSESSEE REITERATED THE SAME CONTENTIONS WHICH WERE RAISED BEFORE CIT(A). REGARDING GROUND NO. 4 HE PLACED RELIANCE ON 7 A TRIBUNAL DECISION IN THE CASE OF UNITED HOTELS LTD. VS. INCOME TAX OFFICER [2005] 93 TTJ 822 (I.T.A.T.[DEL]) . 13. LEARNED D. R. OF THE REVENUE SUPPORTED THE ORDERS OF THE AUTHORITIES BELOW. 14. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. REGARDING GROUND NO. 4 WE FIND THAT THE ISSUE WAS DECIDED BY LEARNED CIT(A) AS PER PARA 5(4) OF HIS ORDER WHICH IS REPRODUCED BELOW FOR THE SAKE OF READY REFERENCE: - 5(4) AS REGARDS THE PAYMENT OF SALARY TO SUPERVISORS OF RS.8 11 4537 - THE APPELLANT CONTENDS THAT THE PAYMENT HAS BEEN MADE AFTER DEDUCTION OF TDS WHEREVER APPLICABLE. IT IS ALSO STATE D THAT THE AMOUNT PERTAINS TO TRANSFER TO UP COOPERATIVE UNION FOR SUPERVISORS SUPPLIED BY THEM. I HAVE EXAMINED THE ISSUE. I FIND THAT TDS OF RS.336/ - HAS BEEN DEDUCTED ON PAYMENTS OF RS.1 85 519/ - TO SHRI R.P. V I SHWAKARMA AND HAS BEEN DEDUCTED ON PAYMENT OF RS.2 09 797/ - TO SHRI INDRAJEET SINGH. THE DISALLOWANCE OF RS.3 95 316/ - OUT OF RS.8 11 453/ - IS NOT JUSTIFIED AS THE PAYMENT HAS BEEN MADE AFTER DEDUCTION OF TDS. AS REGARDS THE CLAIM OF THE APPELLANT THAT THE CONCERNED EMPLOYEES WOULD HAVE GIVEN DETA ILS OF INVESTMENT UNDER SECTION 80C OF THE ACT AND THEREFORE THE TDS WAS NOT DEDUCTED. I FIND THAT THE CONTENTIONS LACKS THE EVIDENTIARY VALUE IN ABSENCE OF DOCUMENTS IN SUPPORT. I ALSO FIND THAT PAYMENTS OF SALARY BY TRANSFER TO UP COOPERATIVE UNION OF R S.1 75 000/ - EACH IN THE CASE OF 3 SUPERVISORS IS WITHOUT DEDUCTION OF TDS AND SO IS THE CASE WITH OTHER SUPERVISORS TO WHOM PART OF THE SALARY IS DISBURSED BY THE APPELLANT AND PART IS TRANSFERRED TO UP COOPERATIVE UNION FOR STATUTORY DUES. SUCH PAYMENTS OF RS.4 16 137/ - ARE WITHOUT DEDUCTION OF TDS AND THERE IS NO EVIDENCE OF ANY CLAIM OF DEDUCTION UNDER SECTION 80C OF THE ACT WHICH COULD HAVE REDUCED THE INCOME TO BELOW TAXABLE LIMIT. IN VIEW THEREOF THE DISALLOWANCE OF RS.4 16 137/ - UNDER SECTION 40(A)( IA) OF THE ACT IS CONFIRMED. 14.1 FROM THE ABOVE PARA FROM THE ORDER OF CIT(A) WE FIND THAT A CLEAR FINDING HAS BEEN GIVEN BY HIM THAT THE PAYMENT OF SALARY BY TRANSFER TO UP COOPERATIVE UNION OF RS.1 75 000/ - EACH IN THE CASE OF 3 SUPERVISORS IS 8 WITHOUT DEDUCTION OF TDS AND SO IS THE CASE WITH OTHER SUPERVISORS TO WHOM PART OF THE SALARY IS DISBURSED BY THE ASSESSEE AND PART IS TRANSFERRED TO UP COOPERATIVE UNION FOR STATUTORY DUES. THIS FINDING IS ALSO GIVEN THAT THERE IS NO EVIDENCE OF ANY CLAI M OF DEDUCTION UNDER SECTION 80C OF THE ACT WHICH COULD HAVE REDUCED THE INCOME TO BELOW TAXABLE LIMIT. HENCE IT IS SEEN THAT THE TDS WAS DEDUCTIBLE AND SINCE IT WAS NOT DONE BY THE ASSESSEE THE DISALLOWANCE MADE BY ASSESSING OFFICER AND CONFIRMED BY CI T(A) IS PROPER. 14.2 NOW WE EXAMINE THE APPLICABILITY OF THE TRIBUNAL DECISION CITED BY LEARNED A.R. OF THE ASSESSEE IN THE CASE OF UNITED HOTELS LTD. (SUPRA). WE FIND THAT IN THAT CASE IT IS NOTED BY TRIBUNAL THAT IT IS NOT DISPUTED THAT THE DEPUTED PER SONS WHEREVER LIABLE HAVE PAID THE TAX ON THE SALARIES RECEIVED BY THEM AND HENCE NO FURTHER TAX CAN BE COLLECTED FROM THE ASSESSEE. IN THE PRESENT CASE THIS IS NOT SHOWN BY THE ASSESSEE THAT THE DEPUTED PERSONS HAVE PAID THE TAX ON THE SALARIES RECEI VED BY THEM WHEREVER LIABLE AND THEREFORE THIS TRIBUNAL DECISION IS NOT APPLICABLE BECAUSE THE FACTS ARE DIFFERENT. SINCE A CATEGORICAL FINDING IS GIVEN BY LEARNED CIT(A) THAT THE INCOME OF ALL THE EMPLOYEES TO WHOM SALARY WAS PAID WERE LIABLE TO TAX AND NO TAX WAS DEDUCTED BY THE ASSESSEE WE DO NOT FIND ANY REASON TO INTERFERE IN THE ORDER OF CIT(A). ACCORDINGLY THIS GROUND IS REJECTED. 15. REGARDING GROUND NO. 5 WE FIND THAT THIS ISSUE WAS DECIDED BY LEARNED CIT(A) AS PER PARA 5(5) OF HIS ORDER WHI CH IS REPRODUCED BELOW FOR THE SAKE OF READY REFERENCE: - 5(5) THE THIRD DISALLOWANCE IS OF RS.94 234/ - FOR PROFESSIONAL CHARGES PAID TO SHRI R.K. NIGAM. THE APPELLANT CONTENDS THAT THE PAYMENTS OF RS.94 234/ - INCLUDES A PAYMENT OF RS.36 233/ - FOR REIMBU RSEMENT OF EXPENSES ON WHICH TDS WAS NOT DEDUCTIBLE. I FIND THAT FEES AS PER EXPLANATION 2 TO SECTION 9(1)(VII) OF THE ACT MEANS ANY CONSIDERATION INCLUDING ANY LUMP 9 SUM PAYMENT. THE REIMBURSEMENT OF EXPENSES IS THEREFORE INCLUDED IN THE PAYMENT ON WHICH T DS IS TO BE DEDUCTED ON ACCOUNT OF PAYMENT OF FEES. THE DISALLOWANCE OF RS.94 234/ - UNDER SECTION 40(A)(IA) OF THE ACT IS CONFIRMED. 15.1 FROM THE ABOVE PARA FROM THE ORDER OF CIT(A) WE FIND THAT THE CLAIM OF THE ASSESSEE IS REGARDING PAYMENT OF RS.94 234/ - INCLUDING THE AMOUNT OF RS.36 233/ - F OR REIMBURSEMENT OF EXPENSES. T HIS IS BY NOW A SETTLED POSITION OF LAW THAT IF THE BILL RAISED FOR REIMBURSEMENT OF EXPENSES IS SEPARATE AND THE BILL FOR SERVICE CHARGES IS RAISED SEPARATELY THEN THERE MAY BE CASE OF NO DEDUCTION OF TDS FROM THE REIMBURSEMENT BUT THE ASSESSEE COULD NOT PRODUCE DETAILS THAT THE BILLS FOR SERVICE CHARGES WAS RAISED SEPARATELY AND THE CLAI M FOR REIMBURSEMENT OF EXPENSES WAS MADE SEPARATELY. IN THE ABSENCE OF SEPARATE BILL COMPOSITE AMOUNT HAS TO BE CONSIDERED FOR TDS PURPOSES AND UNDER THESE FACTS WE DO NOT FIND ANY REASON TO INTERFERE IN THE ORDER OF LEARNED CIT(A). ACCORDINGLY GROUND NO. 5 IS ALSO REJECTED. 16. GROUND NO. 6 IS AS UNDER: 6. THE LD. CIT (A) ERRED ON FACTS AND IN LAW IN NOT APPRECIATING THE FACTS OF THE PRESENT CASE THAT THE PROFIT OF RS.2 93 87 633/ - FOR THE YEAR UNDER CONSIDERATION WAS INCLUSIVE OF REVERSAL OF PROVISIONS OF RS.2 83 63 000/ - AND THE APPELLANT WAS TO BE TAXED ONLY FOR THE PROFIT OF RS.10 24 633/ - AS STATED IN THE STATEMENT OF FACTS. 17. THIS GROUND WAS NOT PRESSED BY LEARNED A.R. OF THE ASSESSEE AND ACCORDINGLY THE SAME IS REJECTED AS NOT PRESS ED. 18. THE ASSESSEE HAS RAISED AN ADDITIONAL GROUND WHICH READS AS UNDER: ON THE FACTS IN LAW AND IN THE PECULIAR CIRCUMSTANCES OF THE PRESENT CASE CONSIDERING THE NET PROFIT OF RS.2 93 87 633/ - AS SHOWN IN THE PROFIT & LOSS ACCOUNT WHILE COMPUTING THE TAXABLE INCOME OF THE APPELLANT IS BAD IN LAW BECAUSE OF THE FACT THAT THE PROFIT OF RS.2 93 87 633/ - WAS INCLUSIVE OF REVERSAL OF NPAS PROVISIONS OF RS.2 83 63 000/ - MADE IN ASSESSMENT YEAR 2004 - 10 05 WHICH STOOD ALREADY TAXED IN THE HANDS OF THE APPEL LANT IN THAT YEAR. 19. IT WAS SUBMITTED BY LEARNED A.R. OF THE ASSESSEE THAT PROFIT & LOSS ACCOUNT OF THE ASSESSEE IS AVAILABLE ON PAGE NO. 50 AND FROM THE SAME IT CAN BE SEEN THAT AN AMOUNT OF RS.283.63 LAC WAS CREDIT ON ACCOUNT OF REVERSAL OF PROVISIO N FOR OVERDUE INTEREST OF RS.105.08 LAC REVERSAL OF PROVISION OF NPA LOAN AND RS.178.26 LAC REVERSAL OF PROVISION OF STANDARD ASSETS RS.0.29 LAC TOTAL RS.283.63 LAC. HE ALSO SUBMITTED THAT THESE PROVISIONS WERE MADE IN ASSESSMENT YEAR 2004 - 05 AND THE ASS ESSMENT ORDER FOR THAT YEAR IS AVAILABLE ON PAGES 33 TO 37 OF THE PAPER BOOK. HE POINTED OUT THAT IN THAT YEAR THE CLAIM OF THE ASSESSEE REGARDING PROVISION OF NPA WAS REJECTED TO THE EXTENT OF RS.110.34 LAC AND THE CLAIM OF THE ASSESSEE FOR PROVISION FO R OVERDUE LOSS HAS BEEN REJECTED OF RS.346.10 LAC TOTALING TO RS.456.44 LAC. HE SUBMITTED THAT THE REVERSAL OF SUCH PROVISION IN THE PRESENT YEAR IS OUT OF THIS PROVISION IN ASSESSMENT YEAR 2004 - 05 AND SINCE THIS PROVISION WAS NOT ACCEPTED IN THAT YEAR AN D SAME WAS TAXED IN THAT YEAR NO INCOME SHOULD BE TAXED IN THE PRESENT YEAR BEING REVERSAL OF SUCH PROVISION. HE ALSO SUBMITTED A COPY OF THE TRIBUNAL ORDER IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2006 - 07 AND 2007 - 08 IN I.T.A. NO.633/LKW/2011 AND 75/L KW/2012 DATED 16/01/2015 AND DRAWN OUR ATTENTION TO PARA 4 OF THIS TRIBUNAL ORDER WHERE IT WAS HELD BY THE TRIBUNAL THAT THE ASSESSING OFFICER SHOULD REDUCE THE INCOME IN THE YEAR WHERE PROVISIONS WERE WRITTEN BACK BY THE ASSESSEE. 20. LEARNED D.R. OF THE REVENUE SUBMITTED THAT THIS ADDITIONAL GROUND SHOULD NOT BE A DMITT ED AND EVEN IF ADMITTED THERE IS NO MERIT IN THIS GROUND. 21. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND THAT THE CLAIM OF THE ASSESSEE IS A LEGAL CLAIM WHICH CAN BE RAISED AT ANY S TAGE AND THEREFORE WE ADMIT THE ADDITIONAL GROUND RAISED BY THE ASSESSEE. 11 22. AFTER HEARING BOTH SIDES ON THE ADDITIONAL GROUND WE FEEL THAT THE MATTER SHOULD GO TO THE FILE OF THE ASSESSING OFFICER FOR FRESH DECISION AFTER EXAMINING THIS ASPECT AS TO W HETHER THE WRITE BACK OF THE PROVISION IN THE PRESENT YEAR IS OUT OF PROVISION OF WHICH YEAR AND WHETHER THE PROVISION IN THE RESPECTIVE YEAR WAS ALLOWED OR NOT AND IF IT IS FOUND THAT THE PROVISION IN THE YEAR O F CREATION OF PROVISION WAS DISALLOWED THEN THE REVERSAL OF THE PROVISION IN THE PRESENT YEAR SHOULD NOT BE TAXED AND THIS SHOULD BE EXCLUDED FROM THE PROFIT AS PER PROFIT & LOSS ACCOUNT. WE THEREFORE RESTORE THIS MATTER TO THE FILE OF THE ASSESSING OFFICER FOR FRESH DECISION IN THE LIGHT OF ABOV E DISCUSSION AFTER PROVIDING DUE AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THIS GROUND IS ALLOWED FOR STATISTICAL PURPOSES. 23. IN THE RESULT THE APPEAL OF THE ASSESSEE STANDS ALLOWED IN THE TERMS INDICATED ABOVE. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 31 /07/2015 *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1.THE APPELLANT 2.THE RESPONDENT. 3.CONCERNED CIT 4.THE CIT(A) 5.D.R. I.T.A.T. LUCKNOW ASSTT. REGISTRAR