Deduction under section 80GGB cannot disallowed only on the basis not mentioned in the return

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH- “B” CALCUTTA

Before Shri Pramod Kumar, Accountant Member

and

Shri George Mathan, Judicial Member

ITA No.1410/Kol/2011

Assessment Year: 2005-06

M/s. Britannia Industries Ltd

PAN: AABCB 2066P

 (APPELLANT)

-Versus-.

DCIT, Circle-7, Kolkata

(RESPONDENT)

For the Appellant: Shri D.S.Damla, FCA, ld. AR

For the Respondent: Shri A.K.Singh, ld. CIT/DR

Date of Hearing: 19-06-2012

Date of Pronouncement: 19-06-2012

ORDER

Shri George Mathan, Judicial Member

This is an appeal filed by the assessee against order of the learned Commissioner of Income-tax (Appeals)-VIII, Kolkata in appeal no.452/CIT(A)-VIII/Kol/08-09 dated 28-09-2011 for the assessment year 2005-06.

2. In this assessee’s appeal, the assessee has raised following grounds of appeal:-

“1) For that on the facts and in the circumstances of the case, the CIT (A) erred both in law and on facts in holding that the appellant was not entitled to deduction u/s 8OGGB only because the claim therefore was not made in the return or the revised return even though the appellant had disclosed the details of donations paid to political parties before the AO as also before him and Sec 8OGGB permitted deduction for such donations.

2) For that on the facts and in the circumstances of the case, the CIT(A) grossly erred both in law and on facts in not allowing deduction u/s 8OGGB in respect of donation paid to political parties by following the judgment of the Supreme Court in Goetze (India) Ltd Vs. CIT (284 ITR 323) even though the said judgment did not deal with powers of the appellate authorities in entertaining legal claims for deductions or reliefs not claimed in the return or before the AO but raised for the fist time in appellate proceedings.

3) For that on the facts and in the circumstances of the case, the CIT(A) having accepted the fact that the appellant had substantiated before him with evidence that it had paid donations to political parties and the CIT(A) having admitted that Sec 800GB permitted deduction in respect of donations paid to political parties, he should have adjudicated the said claim on merits of the claim instead of rejecting the claim by relying on a judicial decision which was not relevant or applicable to the proceedings before him as an appellate authority.

4) For that on the facts and in the circumstances of the case, the authorities below be directed to consider and allow deduction u/s 8OGGB in respect of donations of Rs. 125 lacs paid to political parties since conditions specified in the said section were satisfied by the appellant.

5) For that the appellant craves leave to submit additional grounds and/or amend or alter the grounds already taken either at the time of hearing of the appeal or before. “

3. Shri D.S.Damle, FCA, learned AR represented on behalf of the assessee and Shri A.K. Singh , learned CIT/DR represented on behalf of the revenue.

4. It was submitted by the learned AR that the only issue in this appeal was against the action of the learned Commissioner of Income-tax(Appeals) in not allowing the assessee’s claim of deduction u/s. 80GGB of the donations made by the assessee to political parties in respect of Rs.45 lakhs given to Congress party and Rs. 80 lakhs given to BJP.

5. It was the submission that the Assessing Officer had held that the assessee had not made the claim of deduction u/s. 80GGB of the Act in the original return filed by the assessee. It was the submissions that the learned Commissioner of Income-tax (Appeals) had upheld the order of the Assessing Officer by following the decision of the Hon’ble Supreme Court in the case of Goetze (India) Ltd Vs.CIT reported in 284 ITR 323(SC). It was the submission that the factum of donation having been given was not disputed. It was submitted that only because the assessee had not made the claim in the original return, the benefit of deduction had not been granted to the assessee. In view of the decision of the Hon’ble Supreme Court in the case of Goetze (India) Ltd (refer to supra), the Tribunal was empowered to grant deduction to the assessee.

6. In reply, the learned CIT/DR has vehemently supported the orders of the Assessing Officer and the learned Commissioner of Income-tax (Appeals). It was the submissions that in view of decision of the Hon’ble Supreme Court in the case of Goetze (India) Ltd (refer to supra) as the assessee had not made the claim in the original return nor had the assessee filed any revised return making the claim, the Assessing Officer and the learned Commissioner of Income-tax (Appeals) both could not have admitted the assessee’s claim. It was fairly agreed by the learned DR that in view of the decision of the Hon’ble Supreme Court in the case of Goetze (India) Ltd.(refer to supra), the Tribunal did have jurisdiction to direct the Assessing Officer to consider the claim of assessee.

7. We have considered the rival submissions. It is noticed that the Hon’ble Supreme Court in the

case of Goetze (India) Ltd (refer to supra) has held that the appellate authority being the tribunal did have the powers to direct the Assessing Officer to accept the claim of assessee, though the same has not been made in the original return nor has been claimed in the revised return. In the circumstances, respectfully following the ratio laid down by the Hon’ble Supreme Court in the case of Goetze (India) Ltd (refer to supra), the Assessing Officer is directed to grant the assessee’s claim of deduction u/s. 80GGB of the donations made by the assessee to political parties in respect of Rs.45 lakhs given to Congress party and Rs. 80 lakhs given to BJP.

8. In the result, the appeal of the assessee stands allowed

THIS ORDER IS PRONOUNCED IN OPEN COURT ON Dt 19-06-2012

                                             Sd/-                                 Sd/-

                                   Pramod Kumar,               George Mathan,

                                 Accountant Member          Judicial Member

Date 19-06-2012

*PP/SPS

Copy of the order forwarded to:

1. The Appellant: M/s. Britannia Industries Ltd C/o P.K. Saraf 238B, A.J.C Bose Road, Kol-20.

2 The Respondent- Dy. CIT,Cir-7, Aaykar Bhawan, Kolkata.

3. The CIT,

4. The CIT(A)

5. DR, Kolkata Bench

6. Guard file.

True Copy,

By order,

Asstt Registrar