Itxa 1669-16-O v. Itr 273

Priya Soparkar 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.1669 OF 2016 Pr.Commissioner of Income Tax-9… Appellant V/s. M/s Family Investment Private Limited … Respondent --- Mr.Tejveer Singh for the Appellant.Mr.Atul Jasani for the Respondent. --- CORAM : AKIL KURESHI AND SANDEEP K.SHINDE, JJ. DATE : JANUARY 28, 2019. P.C.:- 1.Revenue has filed this appeal against the judgment of theIncome Tax Appellate Tribunal dated 2[nd] December, 2015, raisingfollowing questions for our consideration: “I.Whether in the facts and circumstances of thecase and in law, the mere calling for details inrespect of a claim, without requiring the assesseeto justify the legality of such claim which primafacie the AO ought to have examined, would besufficient to take the consequential assessmentorder outside the revisionary jurisdiction of theCommissioner u/s 263 of the Act?II.Whether in the facts and circumstances of thecase and in law, the ratio of decision in the case ofApollo Tyres does not apply to a case whether the Priya Soparkar certification of the accounts by the auditor is primafacie, perverse in as much as in the case underconsideration not only has the debit to the P & LA/c of donation made has been certified as correctbut also of such donation which has not been paidin the relevant year and no material has beenbrought on record to show that it has been paid inany subsequent year?” 3. Respondent-assessee is a limited company. In the return ofthe income filed for the assessment year 2010-11, the assesseehad claimed benefit of donation of Rs.12.75 crores. The AssessingOfficer after examining the claim granted the benefit in the orderof assessment passed. To take such order in revision, theCommissioner of Income Tax issued notice on the ground that asum of Rs.2.50 crores out of the total amount of donation, was notpaid by the assessee. The assessee was covered under MinimumAlternative Tax Scheme and therefore, was assessed under MATprovisions. CIT (Appeals) passed the order of revision disallowingthe claim of Rs.2.50 crores of donation. The assessee carried thematter in appeal before the Tribunal. Tribunal by the impugnedjudgment allowed the appeal and set aside the order of theCommissioner. 346 itxa 1669-16-o 4.Perusal of the documents on record with the assistance ofthe learned counsel for the parties would show that the Tribunalproceeded to allow the appeal principally on two grounds.Firstly, that by virtue of the judgment of Supreme Court in caseof Apollo Tyres Ltd. Vs. Commissioner of Income-Tax[1], whilecomputing the assessee's book profit under the MAT provision,the Assessing Officer cannot tinker with books of accounts dulyaudited. Secondly, that the Assessing Officer having carried outinquiries with respect to the genuineness of the donation, theCommissioner could not have exercised revisional powers. Quiteapart from these observations of the Tribunal, independently wefind that during the year under consideration the assessee hadcommitted to a total donation of Rs.12.75 crores, out of whichRs.10.25 cores was actually donated during the period relevant tothe assessment year in question. Out of the remaining Rs.2.50crores Rs.2 crores was donated in the next year, but even beforethe date of closing of the account of the present year andremaining Rs.50 lakhs was donated shortly after that. In view ofsuch facts, we do not see any reasons to interfere. We are Priya Soparkar conscious that the decision of the Supreme Court in case ofApollo Tyres (supra) is referred to larger bench, however, thisview has been followed consistently by this Court and we do notpropose to depart from the same. 5.In the result, appeal is dismissed. (SANDEEP K.SHINDE, J.) (AKIL KURESHI,J.)….