Trivedi Corpn. Pvt. Ltd.,, Mumbai v. The Income tax Officer,Ward-8(1),, Ahmedabad

ITA 2844/AHD/2006 | 2003-2004
Pronouncement Date: 13-01-2010 | Result: Partly Allowed

Appeal Details

RSA Number 284420514 RSA 2006
Assessee PAN AAACT6908R
Bench Ahmedabad
Appeal Number ITA 2844/AHD/2006
Duration Of Justice 3 year(s) 29 day(s)
Appellant Trivedi Corpn. Pvt. Ltd.,, Mumbai
Respondent The Income tax Officer,Ward-8(1),, Ahmedabad
Appeal Type Income Tax Appeal
Pronouncement Date 13-01-2010
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted B
Tribunal Order Date 13-01-2010
Date Of Final Hearing 11-01-2010
Next Hearing Date 11-01-2010
Assessment Year 2003-2004
Appeal Filed On 15-12-2006
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH B BEFORE SHRI BHAVNESH SAINI JUDICIAL MEMBER AND SHRI D.C.AGRAWAL ACCOUNTANT MEMBER DATE OF HEARING : 11/01/2010 DRAFTED ON: 11 /01/2010 ITA NOS.2844 & 2845/AHD/2006 ASSESSMENT YEARS: 2003-04 & 2004-05 RESPECTIVELY TRIVEDI CORPORATION P1 PVT.LTD. 68 PREMANJALI BODAKDEV AHMEDABAD VS. THE INCOME TAX OFFICER WARD-8(1) AHMEDABAD PAN/GIR NO. : AAACT 6908 R (APPELLANT) .. (RESPONDENT) APPELLANT BY : SHRI U.S.BHATI RESPONDENT BY: SMT. NEETA SHAH SR. D.R. O R D E R PER BHAVNESH SAINI JUDICIAL MEMBER: BOTH THE APPEALS BY THE ASSESSEE ARE DIRECTED AGA INST DIFFERENT ORDERS OF THE CIT(A)-XIV AHMEDABAD DATED 06/09/2006 PASSE D FOR ASSESSMENT YEARS 2003-04 & 2004-05. 2. WE HAVE HEARD LEARNED REPRESENTATIVES OF BOTH TH E PARTIES PERUSED THE FINDINGS OF AUTHORITIES BELOW AND CONSIDERED TH E MATERIAL AVAILABLE ON RECORD. ITA NO.2844/AHD/2006 FOR A.Y. 2003-04 3. GROUND NO.1 IS GENERAL IN NATURE AND IS ACCORDI NGLY DISMISSED. ITA NOS.2844 & 2845/AHD/200 6 TRIVEDI CORPORATION PVT.LTD. MUMBAI VS. ITO ASST.YEARS 2003-04 & 2004-05 - 2 - 4. ON GROUND NO.2 THE ASSESSEE CHALLENGED THE DISA LLOWANCE OF RS.25 000/- MADE BY THE ASSESSING OFFICER OUT OF ON E TRAVELLING EXPENSES. THE ASSESSEE HAS CLAIMED EXPENDITURE OF RS.6 36 022 /- ON FOREIGN TRAVEL EXPENSES IN RESPECT OF DIRECTORS AND OTHER EMPLOYEE S. THE ASSESSEE FILED SOME EVIDENCES BEFORE THE ASSESSING OFFICER IN RESP ECT OF FOREIGN TRAVEL TICKET BUT NO VOUCHERS WERE PRODUCED IN SUPPORT OF OTHER EXPENSES INCURRED IN FOREIGN COUNTRIES. THE ASSESSING OFFIC ER ACCORDINGLY DISALLOWED RS.25 000/-. AT THE APPELLATE STAGE THE LEARNED CIT(APPEALS) NOTED THAT SINCE NO VOUCHERS SUPPORTIN G VARIOUS EXPENSES IN FOREIGN COUNTRIES HAVE BEEN PRODUCED THEREFORE AS SESSING OFFICER WAS JUSTIFIED IN MAKING THE PART ADDITION. 5. THE LD. COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND ALSO SUBMITTED THA T CONSIDERING THE VOLUME OF BUSINESS OF ASSESSEE AND OTHER RELEVANT C ONSIDERATION THE AUTHORITIES BELOW SHOULD NOT MAKE DISALLOWANCE OF R S.25 000/-. HE HAS ADMITTED THAT ASSESSEE HAS NOT PRODUCED SOME OF THE VOUCHERS RELATING TO THE ABOVE EXPENDITURE. 6. THE LEARNED DEPARTMENTAL REPRESENTATIVE RELIED O N THE ORDERS OF AUTHORITIES BELOW. 7. ON CONSIDERATION OF THE RIVAL SUBMISSIONS WE AR E NOT INCLINED TO INTERFERE WITH THE ORDERS OF AUTHORITIES BELOW BECA USE ADMITTEDLY ASSESSEE DID NOT PRODUCE SOME OF THE SUPPORTING VOUCHERS OF VARIOUS EXPENSES INCURRED IN FOREIGN COUNTRIES BEFORE THE AUTHORITIE S BELOW. THE LD. COUNSEL ITA NOS.2844 & 2845/AHD/200 6 TRIVEDI CORPORATION PVT.LTD. MUMBAI VS. ITO ASST.YEARS 2003-04 & 2004-05 - 3 - FOR THE ASSESSEE ALSO ADMITTED THE ABOVE POSITION D URING THE COURSE OF HEARING BEFORE US. SINCE THE BURDEN IS UPON THE A SSESSEE TO PROVE THE GENUINENESS OF THE EXPENDITURE AS DEDUCTION CLAIMED BY THE ASSESSEE AND SUCH BURDEN IS NOT DISCHARGED ABSOLUTELY BY THE ASS ESSEE THEREFORE AUTHORITIES BELOW WERE JUSTIFIED IN MAKING PART DIS ALLOWANCE ON THIS ISSUE. WE CONFIRM THE FINDINGS OF THE AUTHORITIES BELOW AN D DISMISS THIS GROUND OF APPEAL OF THE ASSESSEE. 8. ON GROUND NOS.3 & 4 THE ASSESSEE CHALLENGED THE ADDITION OF RS.48 960/- BEING INTEREST CLAIMED U/S.36(1)(III) O F THE I.T. ACT 1961 AS WELL AS CHALLENGED THE ADDITION OF RS.2 50 748/- ON ACCOUNT OF PRIOR PERIOD INCOME. IT IS NOTED THAT ASSESSEE HAS INCURRED AN INTEREST OF RS.2 50 748/- IN RESPECT OF NEW MACHINERY AND CLAIMED AS BUSINES S EXPENDITURE IN ASSESSMENT YEAR 2002-03 AND WAS ALLOWED AS EXPENSES IN ASSESSMENT YEAR 2002-03 AND THE YEAR UNDER CONSIDERATION THE ASSESSEE HAS CAPITALIZED THIS EXPENDITURE AND OFFERED THE SAME T O TAX. THE ASSESSEE CREDITED THE AMOUNT AND SHOWN IT AS PART OF ITS INC OME WHILE FILING THE RETURN OF INCOME. SIMILARLY AN AMOUNT OF RS.48 9 60/- HAS BEEN CAPITALIZED PROPORTIONATE AND THE ASSESSEE DID NOT CLAIM IT AS REVENUE EXPENDITURE IN THE YEAR UNDER CONSIDERATION. HOW EVER DURING THE ASSESSMENT PROCEEDINGS THE ASSESSEE CLAIMED IT AS REVENUE EXPENDITURE BEFORE THE ASSESSING OFFICER AND CONTENDED THAT IT SHOULD BE ALLOWED. THE ASSESSEE HAS SUBMITTED THAT INTEREST AMOUNT SHOULD NOT BE TAKEN AS ITS INCOME WHEN IT IS CREDITED IN THE PROFIT & LOSS ACC OUNT THIS YEAR. THE ASSESSING OFFICER HAS NOT ACCEPTED THE REQUEST SAYI NG THAT IN THE RETURN OF INCOME ASSESSEE ITSELF HAS SHOWN IT IS CAPITAL EXP ENDITURE AND HAS NOT FILED ITA NOS.2844 & 2845/AHD/200 6 TRIVEDI CORPORATION PVT.LTD. MUMBAI VS. ITO ASST.YEARS 2003-04 & 2004-05 - 4 - ANY REVISED RETURN TO THIS EFFECT. THE LEARNED CIT (APPEALS) CONSIDERING SUBMISSION OF THE ASSESSEE REJECTED BOTH THE GROUN DS OF THE APPEAL OF THE ASSESSEE IN VIEW OF THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF GOETZ (INDIA) LTD. VS. CIT 284 ITR 323 (SC) WHERE IN IT WAS HELD THAT ANY DEDUCTION IS CLAIMED AFTER RETURN IS FILED THE ASS ESSING OFFICER HAS NO POWER TO ENTERTAIN SUCH CLAIM MADE OTHERWISE THAN BY WAY OF REVISED RETURN. SINCE IN THE CASE OF THE ASSESSEE THE ASS ESSEE HAS NOT FILED REVISED RETURN THE LEARNED CIT(APPEALS) HELD THAT THE AMOU NT SHOWN IN THE ORIGINAL RETURN CANNOT BE ALLOWED. BOTH THE ADDITI ONS WERE CONFIRMED AND APPEAL OF THE ASSESSEE WAS DISMISSED ON THESE GROUN DS. 9. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT LEARNED CIT(APPEALS) SHOULD HAVE CONSIDERED THIS GROUND ON MERITS BECAUSE ASSESSING OFFICER HAS CONSIDERED THIS ISSUE ON MERI TS. HE HAS SUBMITTED THAT SINCE MATERIAL WAS AVAILABLE ON RECORD THEREF ORE THE ASSESSING OFFICER / LEARNED CIT(A) SHOULD DECIDE THIS ISSUE ON MERIT B Y CONSIDERING DECISION OF THE HON'BLE SUPREME COURT IN THE CASE O F NATIONAL THERMAL POWER CO. LTD V. CIT- (1998) 229 ITR 383(SC). 10. ON THE OTHER HAND LEARNED DEPARTMENTAL REPRESE NTATIVE RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW AND SUBMIT TED THAT SINCE THE ASSESSEE ITSELF HAS PROPORTIONATELY CAPITALIZED THE INTEREST WHICH RELATED TO PRIOR TO COMMENCEMENT OF THE PRODUCTION THEREFORE ASSESSING OFFICER WAS JUSTIFIED IN REJECTING THE CLAIM OF THE ASSESSE E AS THE ASSESSEE HAS NOT FILED ANY REVISED RETURN. THE LEARNED DEPARTMENTA L REPRESENTATIVE SUBMITTED THAT ONLY REVISED COMPUTATION OF INCOME W AS FILED AT THE ITA NOS.2844 & 2845/AHD/200 6 TRIVEDI CORPORATION PVT.LTD. MUMBAI VS. ITO ASST.YEARS 2003-04 & 2004-05 - 5 - ASSESSMENT STAGE THEREFORE LEARNED CIT(APPEALS) W AS JUSTIFIED IN RELYING UPON THE DECISION OF HON'BLE SUPREME COURT IN THE C ASE OF GOETZ (INDIA) LTD.(SUPRA). 11. ON CONSIDERATION OF THE RIVAL SUBMISSIONS WE A RE OF THE VIEW THAT THE LEARNED CIT(APPEALS) WAS JUSTIFIED IN DECLINING TO ADMIT THE CLAIM OF THE ASSESSEE. THE ASSESSING OFFICER HAS SPECIFICA LLY NOTED IN THE ASSESSMENT ORDER THAT PROPORTIONATE INTEREST ON TER M LOAN PRIOR TO COMMENCEMENT OF THE PRODUCTION IS A CAPITAL EXPENDI TURE AND THE ASSESSEE HAS ALSO CAPITALIZED THE SAME IN THE RETURN OF INCO ME. THE ASSESSING OFFICER ALSO NOTED THAT SINCE PROPORTIONATE INTERES T IS CAPITALIZED BY THE ASSESSEE ITSELF AND DISALLOWED IN THE RETURN OF INC OME THEREFORE SUCH CLAIM OF THE ASSESSEE COULD NOT BE ALLOWED ON MERE FILING OF THE REVISED COMPUTATION OF TOTAL INCOME AT THE ASSESSMENT STAGE . IT IS THEREFORE ADMITTED FACT THAT EVEN IF REVISED COMPUTATION OF T OTAL INCOME WAS FILED AT THE ASSESSMENT STAGE BUT FACT REMAINED THAT THE AS SESSEE HAS NOT FILED ANY REVISED RETURN AT THE ASSESSMENT STAGE BEFORE THE A SSESSING OFFICER. THEREFORE THE DECISION OF THE HON'BLE SUPREME COU RT IN THE CASE OF GOETZ (INDIA) LTD.(SUPRA) SQUARELY APPLIED TO THE CASE O F THE ASSESSEE. THE LEARNED CIT(APPEALS) WAS JUSTIFIED IN REJECTING THE CLAIM OF THE ASSESSEE BECAUSE AS PER THE ABOVE DECISION THE ASSESSING OF FICER COULD NOT HAVE ENTERTAINED THE CLAIM OF THE ASSESSEE AT THE ASSESS MENT STAGE WITHOUT FILING THE REVISED RETURN IN THE MATTER. THE CONTENTION O F THE LD. COUNSEL FOR THE ASSESSEE IS THEREFORE REJECTED. BOTH THESE GROU NDS OF THE APPEAL OF THE ASSESSEE ARE DISMISSED. ITA NOS.2844 & 2845/AHD/200 6 TRIVEDI CORPORATION PVT.LTD. MUMBAI VS. ITO ASST.YEARS 2003-04 & 2004-05 - 6 - 12. ON GROUND NO.5 THE ASSESSEE CHALLENGED THE DIS ALLOWANCE OF RS.7 05 623/- ON ACCOUNT OF DISALLOWANCE MADE U/S.4 0A(3) OF THE I.T. ACT 1961 IN RESPECT OF CASH PAYMENT MADE TO GUJARAT STA TE ELECTRICITY BOARD (HEREINAFTER REFERRED TO AS GEB). THE ASSESSEE SUBMITTED THAT THERE IS NO DISPUTE ABOUT THE GENUINE PAYMENT MADE TO ONE OF THE UNDERTAKING OF THE STATE GOVERNMENT THEREFORE THE ISSUE WOULD FA LL IN THE EXCEPTION PROVIDED UNDER SUB-CLAUSE (B) OF RULE 6DD OF THE IT RULES 1962. THE CONTENTION OF THE ASSESSEE WAS NOT ACCEPTED BY THE LEARNED CIT(APPEALS) BECAUSE EXCEPTION IS AVAILABLE UNDER THIS RULE IN R ESPECT OF PAYMENT MADE TO CENTRAL OR STATE GOVERNMENT OR ITS DEPARTMENT. THE LEARNED CIT(APPEALS) NOTED THAT THE GEB IS NOT A DEPARTMENT OF GOVERNMENT OF GUJARAT THEREFORE NO INTERFERENCE IS CALLED FOR. THIS GROUND OF APPEAL OF THE ASSESSEE IS ACCORDINGLY DISMISSED. 13. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT IT IS ADMITTED FACT THAT PAYMENT IS MADE IN CASH TO GEB FOR ELECTRICITY PAYMENT. HE HAS SUBMITTED THAT GUJARAT STATE ELECTRICITY BOARD GENE RALLY INSISTS FOR PAYMENT THROUGH STATE BANK OF INDIA (SBI) AND SINCE ASSESSEE IS NOT HOLDING ANY ACCOUNT WITH SBI THEREFORE CASH PAYME NT WAS MADE TO THE ELECTRICITY BOARD. HE HAS SUBMITTED THAT IN THE S IMILAR CIRCUMSTANCES THE ITAT AHMEDABAD BENCH B IN THE CASE OF M/S.J.D.ELE CTRONICS IND.(P) LTD. VS. DY.CIT IN ITA NO.3923/AHD/2002 IN ASSESSM ENT YEAR 1991-92 VIDE ORDER DATED 12/08/2004 ALLOWED THE CLAIM OF TH E ASSESSEE AND DELETED THE DISALLOWANCE (COPY OF THE ORDER IS PLACED ON RE CORD). HE HAS ALSO SUBMITTED THAT THE CBDT HAS ISSUED CERTAIN GUIDE-LI NES GIVING CERTAIN CIRCUMSTANCES AND THOSE CIRCUMSTANCES ARE ILLUSTRAT IVE AND NOT EXHAUSTIVE ITA NOS.2844 & 2845/AHD/200 6 TRIVEDI CORPORATION PVT.LTD. MUMBAI VS. ITO ASST.YEARS 2003-04 & 2004-05 - 7 - THEREFORE THE DISALLOWANCE SHOULD NOT BE MADE IN T HIS CASE BECAUSE PAYEE IS KNOWN AND GENUINE PAYMENT IS NOT IN DISPUTE. H E HAS RELIED UPON THE DECISION OF MADRAS HIGH COURT IN THE CASE OF CIT VS . K.K.S.K. LEATHER PROCESSOR P.LTD. (2007) 292 ITR 669 (MAD.) AND IN T HE CASE OF CIT VS. CHROME LEATHER COMPANY P.LTD. (1999) 235 ITR 708 (M AD.). 14. ON THE OTHER HAND THE LEARNED DEPARTMENTAL REP RESENTATIVE RELIED UPON THE ORDERS OF AUTHORITIES BELOW AND SUBMITTED THAT PAYMENT TO GEB IS NOT A PAYMENT TO THE STATE GOVERNMENT OR ITS UND ERTAKING. THEREFORE IT WOULD NOT FALL WITHIN THE EXCEPTION TO THE RULE 6DD AS IS NOTED BY THE AUTHORITIES BELOW. THE LEARNED DEPARTMENTAL REPRES ENTATIVE SUBMITTED THAT THE DECISION OF THE ITAT AHMEDABAD IN THE CASE OF M/S.J.D. ELECTRONICS IND. (P) LTD.(SUPRA) WOULD NOT APPLY BE CAUSE THE PAYMENT IS MADE TO GSIC. THE LEARNED DEPARTMENTAL REPRESENTAT IVE THEREFORE SUBMITTED THAT FACTS ARE DISTINGUISHABLE AND ADDITI ON SHOULD BE CONFIRMED. 15. WE HAVE HEARD RIVAL SUBMISSIONS AND CONSIDERE D THE MATERIAL AVAILABLE ON RECORD. THE PROVISO TO SECTION 40A(3 ) OF THE I.T. ACT 1961 RELEVANT TO THE ASSESSMENT YEAR UNDER APPEAL PROVID ES AS UNDER:- PROVIDED THAT NO DISALLOWANCE SHALL BE MADE AND NO PAYMENT S HALL BE DEEMED TO BE THE PROFITS AND GAINS OF BUSINESS O R PROFESSION UNDER THIS SUB-SECTION WHERE ANY PAYMENT IN A SUM E XCEEDING TWENTY THOUSAND RUPEES IS MADE OTHERWISE THAN BY AN ACCOUNT PAYEE CHEQUE DRAWN ON A BANK OR ACCOUNT PAYEE BANK DRAFT IN SUCH CASES AND UNDER SUCH CIRCUMSTANCES AS MAY BE PRESCRIBED HAVING REGARD ITA NOS.2844 & 2845/AHD/200 6 TRIVEDI CORPORATION PVT.LTD. MUMBAI VS. ITO ASST.YEARS 2003-04 & 2004-05 - 8 - TO THE NATURE AND EXTENT OF BANKING FACILITIES AVAI LABLE CONSIDERATIONS OF BUSINESS EXPEDIENCY AND OTHER REL EVANT FACTORS. 16. THE HON'BLE MADRAS HIGH COURT IN THE CASE OF CI T VS. K.K.S.K. LEATHER PROCESOR P.LTD. 292 ITR 669 (MAD) CONSIDERI NG ITS EARLIER DECISION IN THE CASE OF CHROME LEATHER COMPANY P.LT D.(SUPRA) HELD AS UNDER:- RULE 6DD OF THE INCOME-TAX RULES 1962 PROVIDES T HAT AN ASSESSEE CAN BE EXEMPTED FROM THE PAYMENT BY A CROSSED CHEQU E OR CROSSED BANK DRAFT IN THE CIRCUMSTANCES SPECIFIED IN THE RU LE. THE CENTRAL BOARD OF DIRECT TAXES HAS ISSUED CERTAIN GUIDELINES GIVING CERTAIN CIRCUMSTANCES AND THOSE CIRCUMSTANCES ARE ILLUSTRAT IVE AND NOT EXHAUSTIVE AND THE UNDERLYING IDEA OF THE CIRCULAR IS THAT IF THE IDENTITY OF THE PAYEE IS KNOWN IT WOULD BE POSSIBL E FOR THE INCOME- TAX OFFICER TO CROSS CHECK WHETHER THE TRANSACTION HAD IN FACT TAKEN PLACE. 17. CONSIDERING THE FACTS AND CIRCUMSTANCES ABOVE NOTED THAT IT IS CLEAR THAT ASSESSEE HAS MADE CASH PAYMENT TO GEB AND THE GENUINE PAYMENT IS NOT IN DISPUTE. THE LD. COUNSEL FOR THE ASSESSEE EXPLAINED THAT SINCE PAYMENT THROUGH SBI ONLY IS INSISTED THEREFORE TH E CASH PAYMENT WAS MADE. SINCE IN THIS CASE THE GENUINE PAYMENT IS NOT IN DISPUTE AND THE ASSESSEE HAS EXPLAINED THE REASONS FOR MAKING THE CASH PAYMENT WHICH IS ONE OF THE RELEVANT FACTORS AS IS NOTED IN THE PROV ISO TO SECTION 40A(3) OF THE I.T. ACT 1961. THEREFORE IT WOULD BE RELEVA NT TO CONSIDER THE CASE OF THE ASSESSEE UNDER THE MAIN PROVISO OF SECTION 40A( 3) OF THE I.T. ACT ITA NOS.2844 & 2845/AHD/200 6 TRIVEDI CORPORATION PVT.LTD. MUMBAI VS. ITO ASST.YEARS 2003-04 & 2004-05 - 9 - 1961 ITSELF INSTEAD OF CONSIDERING THE SAME UNDER RULE 6DD(J) OF THE IT RULES 1962. CONSIDERING THE EXPLANATION OF THE AS SESSEE IN LIGHT OF THE PROVISO TO SECTION 40A(3) OF THE I.T. ACT 1961 AND ORDER OF ITAT ABOVE WE ARE OF THE VIEW THAT DISALLOWANCE IS UNJUSTIFIED IN THE MATTER. ACCORDINGLY WE SET ASIDE THE ORDERS OF THE AUTHORI TIES BELOW AND DELETE THE ADDITION OF RS.7 05 623/-. 18. AS A RESULT GROUND NO.5 OF THE APPEAL OF THE A SSESSEE IS ALLOWED. 19. ON GROUND NO.6 THE ASSESSEE CHALLENGED THE DIS ALLOWANCE OF RS.2 41 096/- BEING AN ASCERTAINED GRATUITY LIABILI TY. IN THE RETURN OF INCOME FILED BY THE ASSESSEE THE TAX LIABILITY U/S .115JB OF THE I.T. ACT 1961 WAS SHOWN AT RS.4 16 141/- ON THE BASIS OF BO OK PROFIT IN THE PROFIT & LOSS ACCOUNT. HOWEVER DURING ASSESSMENT PROCEEDINGS ASSESSEE HAS SUBMITTED THAT PROVISION FOR GRATUITY SHOULD BE DEDUCTED FROM THE PROFIT AS ITS IS AN ASCERTAINED LIABILITY BUT THE ASSESSING OFFICER DID NOT ACCEPT THE CLAIM BECAUSE NO EVIDENCE IS FIL ED TO SHOW THAT IT IS ASCERTAINED LIABILITY. THE LEARNED CIT(APPEALS) C ONFIRMED THE FINDING OF THE ASSESSING OFFICER ON THE SAME REASON AS WELL AS NOTED THAT ASSESSEE HAS NOT FILED ANY REVISED RETURN. THEREFORE SUCH CLA IM COULD NOT BE ALLOWED IN VIEW OF DECISION OF HON'BLE SUPREME COURT IN TH E CASE OF GOETZ (INDIA) LTD.(SUPRA). THE LD. COUNSEL FOR THE ASSESSEE SUB MITTED THAT PROVISIONS OF SECTION 115JB OF THE I.T. ACT 1961 ARE APPLICABLE TO THE ASSESSMENT YEAR UNDER APPEAL AND THAT ASSESSEE HAS NOT FILED ANY RE VISED RETURN AT THE ASSESSMENT STAGE BUT THE CLAIM OF THE ASSESSEE IS CONSIDERED BY THE ASSESSING OFFICER ON MERITS. THEREFORE CLAIM OF TH E ASSESSEE SHOULD BE ITA NOS.2844 & 2845/AHD/200 6 TRIVEDI CORPORATION PVT.LTD. MUMBAI VS. ITO ASST.YEARS 2003-04 & 2004-05 - 10 - CONSIDERED BY THE LEARNED CIT(APPEALS) ON MERITS. HE HAS REFERRED TO PAPER-BOOK OF THE ASSESSEE FROM PAGE NOS.19 TO 22 W HICH ARE DETAILS ON THIS ISSUE FILED BEFORE THE LEARNED CIT(APPEALS) AN D SUBMITTED THAT IT WAS ASCERTAINED LIABILITY OF THE ASSESSEE THEREFORE C LAIM OF THE ASSESSEE SHOULD HAVE BEEN ALLOWED BY THE AUTHORITIES BELOW. 20. ON THE OTHER HAND LEARNED DEPARTMENTAL REPRESE NTATIVE RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW AND REFERR ED TO CERTIFICATE GIVEN IN THE PAPER-BOOK OF THE ASSESSEE ACCEPTING THAT PA GE NOS.19 TO 22 WERE NOT FILED BEFORE THE ASSESSING OFFICER BECAUSE THE SAME WERE FILED BEFORE THE LEARNED CIT(APPEALS) ONLY. THE LEARNED DEPART MENTAL REPRESENTATIVE SUBMITTED THAT SINCE THESE WERE ADD ITIONAL EVIDENCES FILED AT THE APPELLATE STAGE AND THE SAME WERE NOT CONFRO NTED TO THE ASSESSING OFFICER AND NO REMAND REPORT IS CALLED FOR IN THE M ATTER THEREFORE SUCH EVIDENCES SHOULD NOT BE TAKEN INTO CONSIDERATION AT THIS STAGE. 21. WE HAVE HEARD REPRESENTATIVES OF BOTH THE PARTI ES PERUSED THE FINDINGS OF AUTHORITIES BELOW AND CONSIDERED THE MA TERIAL AVAILABLE ON RECORD. IT IS ADMITTED FACT THAT NO EVIDENCE REGA RDING ASCERTAINED LIABILITY OF THE GRATUITY WERE FILED AT THE ASSESSMENT STAGE BEFORE THE ASSESSING OFFICER. NO REVISED RETURN OF INCOME IS FILED AT THE ASSESSMENT STAGE TO MAKE SUCH CLAIM. THE ASSESSEE FILED PAPER-BOOK PA GES 19 TO 22 BEFORE THE LEARNED CIT(APPEALS) AND NOT AT ASSESSMENT STA GE. IT WOULD THEREFORE PROVE THAT THE SAME WERE ADDITIONAL EVID ENCES IN NATURE AND THE SAME COULD BE CONSIDERED ONLY IF THE ASSESSEE WOULD HAVE SATISFIED THE CONDITIONS OF RULE 46A OF THE I.T.RULES 1962. UN DER RULE 46A OF THE IT ITA NOS.2844 & 2845/AHD/200 6 TRIVEDI CORPORATION PVT.LTD. MUMBAI VS. ITO ASST.YEARS 2003-04 & 2004-05 - 11 - RULES THE LEARNED CIT(APPEALS) COULD CONSIDER THE ADDITIONAL EVIDENCE IF THE CONDITIONS OF SUCH RULES HAVE BEEN SATISFIED BY THE ASSESSEE NAMELY ASSESSEE WAS NOT GIVEN OPPORTUNITY OF BEING HEARD B Y THE ASSESSING OFFICER ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE FROM PRODUCING THE EVIDENCE BEFORE THE ASSESSING OFFICER OR THAT NO TI ME IS GIVEN TO THE ASSESSEE TO PRODUCE SUCH EVIDENCE AT THE ASSESSMEN T STAGE. IT IS ALSO REQUIRED AS PER THE ABOVE RULE 46A TO MOVE PROPER P ETITION BEFORE CONSIDERING CLAIM OF ASSESSEE. HOWEVER IN THIS CA SE THE ASSESSEE DID NOT PREFER TO MOVE IN A PROPER REQUEST TO ADMIT THE AD DITIONAL EVIDENCE AT THE APPELLATE STAGE AND NONE OF THE CONDITIONS OF RUL E 46A HAVE BEEN SATISFIED. THE LEARNED CIT(APPEALS) WAS JUSTIFIED I N NOT TAKING INTO CONSIDERATION SUCH ADDITIONAL EVIDENCE AT THE FIRST APPELLATE STAGE. IN THIS VIEW OF THE MATTER WE ARE NOT INCLINED TO TAKE INT O CONSIDERATION OF SUCH EVIDENCE AT THE SECOND APPELLATE STAGE. THE FACT THEREFORE REMAINED THAT ASSESSEE COULD NOT PROVE THAT DEDUCTION CLAIMED ON ACCOUNT OF GRATUITY WAS ASCERTAINED LIABILITY DURING THE ASSESSMENT YEA R UNDER APPEAL. MOREOVER NO CLAIM IS MADE BY WAY OF REVISED RETURN . THEREFORE ASSESSEE HAS NO CASE FOR INTERFERENCE. WE ACCORD INGLY CONFIRM THE FINDING OF THE AUTHORITIES BELOW AND DISMISS THE GR OUND OF THE APPEAL OF THE ASSESSEE. NO OTHER ARGUMENT IS MADE OR PRESSE D BY THE ASSESSEES COUNSEL. 22. AS A RESULT APPEAL OF THE ASSESSEE IN ITA NO.2 844/AHD/2006 FOR ASSESSMENT YEAR 2003-04 IS PARTLY ALLOWED. ITA NO.2845/AHD/2006 FOR ASSESSMENT YEAR 2004-05 ITA NOS.2844 & 2845/AHD/200 6 TRIVEDI CORPORATION PVT.LTD. MUMBAI VS. ITO ASST.YEARS 2003-04 & 2004-05 - 12 - 23. GROUND NO.1 IS GENERAL IN NATURE THEREFORE TH E SAME IS DISMISSED AS SUCH. 24. GROUND NO.5 IS NOT PRESSED BY THE LD. COUNSEL F OR THE ASSESSEE ON THE GROUND THAT SECTION 115JB OF THE I.T. ACT 1961 WAS NOT APPLICABLE TO THE ASSESSMENT YEAR UNDER APPEAL. THE SAME IS AC CORDINGLY DISMISSED AS WITHDRAWN. 25. ON GROUND NO.2 THE ASSESSEE CHALLENGED THE DIS ALLOWANCE OF RS.25 000/- MADE ON ACCOUNT OF TRAVELLING EXPENSES. SINCE IT IS THE SAME GROUND AS IT IS CONSIDERED EARLIER IN ASSESSEES OW N CASE THE ADDITION IS CONFIRMED ON THIS GROUND OF APPEAL OF THE ASSESSEE AND THE SAME IS DISMISSED. 26. ON GROUND NO.3 THE ASSESSEE CHALLENGED THE ADD ITION OF RS.98 571/- IN RESPECT OF PRIOR PERIOD EXPENSES. THE LD. COUN SEL FOR THE ASSESSEE CONCEDED THAT ASSESSEE HAS NO DETAILS ON THIS ISSUE . IN VIEW OF THE MATTER AND CONSIDERING EARLIER ORDER IN THE CASE OF THE AS SESSEE THIS GROUND OF APPEAL IS DISMISSED. 27. ON GROUND NO.4 THE ASSESSEE CHALLENGED DISALLO WANCE OF RS.3 29 462/- ON ACCOUNT OF CASH PAYMENT MADE TO GU JARAT STATE ELECTRICITY BOARD (GEB). THIS ADDITION IS SIMILAR AS IS CONSIDERED IN ASSESSMENT YEAR 2003-04 IN WHICH CLAIM OF THE ASSES SEE HAS BEEN ALLOWED. BY FOLLOWING THE SAME ORDER WE SET ASIDE THE ORDER S OF LOWER AUTHORITIES ON THIS GROUND OF APPEAL THE ADDITION IS DELETED. ITA NOS.2844 & 2845/AHD/200 6 TRIVEDI CORPORATION PVT.LTD. MUMBAI VS. ITO ASST.YEARS 2003-04 & 2004-05 - 13 - 28. AS A RESULT GROUND NO.4 OF THE ASSESSEE IS ALL OWED. 29. NO OTHER POINT IS ARGUED OR PRESSED BY THE LD. COUNSEL FOR THE ASSESSEE. AS A RESULT ITA NO.2845/AHD/2006 IS PAR TLY ALLOWED. 30. IN RESULT BOTH THE APPEALS OF THE ASSESSEE ARE PARTLY ALLOWED. ORDER SIGNED DATED AND PRONOUNCED IN THE COURT ON 13 / 01 / 2010 SD/- SD/- ( D.C. AGRAWAL ) ( BHAVNE SH SAINI ) ACOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 13/ 01/2010 T.C. NAIR COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS)-XIV AHMEDABAD 5. THE DR AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER //TRUE COPY// (DY./ASSTT.REGISTRAR) ITAT AHMEDABAD