TaxTMI 
TaxTMI 
TaxTMI 
2012 (6) TMI 36
X X X X Extracts X X X X
X X X X Extracts X X X X
..... In the adjustment explanatory sheet enclosed with the intimation under Section 143(1)(a), the Assessing Officer had made adjustments on following grounds/reasons:- "Loss 4,26,92,420/- (i) Interest not paid being disallowable u/s 43-B 37,02,281/- (ii) Entry tax u/s 43-B 5,981/- (iii) Welfare cess u/s 43-B 4,419/- (iv) P.F. unpaid u/s 43-B 18,548/- (v) cash payment exceeding Rs.10,000 u/s 40-A(3) read with rule 6DD 37,655/- (vi) Dep. for separate consideration 3,253/- (vii) Charity & donation 2,411/- (viii) Short disallowance made for entertainment 1,250/- 37,75,828/- (-) 3,49,16,592/-" 3. This created a demand of Rs. 4,36,108/- towards additional tax. 4. As far as cash payments, charity & donation....
X X X X Extracts X X X X
X X X X Extracts X X X X
....allowed; (iii) any loss carried forward, deduction, allowance or relief claimed in the return, which, on the basis of the information available in such return, accounts or documents, is prima facie inadmissible, shall be disallowed." 5. Interpreting clause (iii) to Section 143(1)(a) in the case of S.R.F. Charitable Trust v. Union of India and Ors. (1992) 193 ITR 95 (Delhi), it has been held:- "In the instant case, it is clause (iii) of the proviso which was sought to be applied by the Income-tax Officer. The said clause clearly provides that the Income-tax Officer can make an adjustment to the income or loss declared in the return if, on the basis of the information available in such return, accounts or documents, the deduction allowance....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d provision that adjustment can be made only if there is information available in such return that prima facie a claim or allowance is inadmissible. For the aforesaid view which we are taking, support is available from the understanding of the said provision by the Department itself. Learned counsel for the petitioner has drawn our attention to Circular No. 549 reported at [1990] 182 ITR (St.) 1, at page 21, issued by the Central Board of Direct Taxes wherein examples have been given of adjustments which can be carried out. The relevant part of the said circular is as under : "The prima facie adjustments mentioned at (ii) above can be made only on the basis of information available in the return or the accompanying accounts or documents an....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n the return or the accompanying documents. (ix) Deduction under section 80C in respect of provident fund contributions or life insurance premia or N. S. C. VI or VII Issue not claimed, though the information is available in the documents accompanying the return, or claimed at a figure which is less than or is in excess of the permissible amount. (x) Deduction under section 80L not claimed or claimed at a figure which is less than or is in excess of the permissible amount. (xi) Deduction under section 80G not claimed, although allowable on the basis of the information available in the return or the accompanying documents or claimed at a figure which is less than or is in excess of the permissible limit. (xii) Deduction under section 80M....
X X X X Extracts X X X X
X X X X Extracts X X X X
....justment under Section 143(1)(a). 9. Learned counsel for the petitioner has submitted that this adjustment was impermissible under Section 43B of the Act, as disallowance cannot be made if the assessee had paid the said sum before the due date of filing of the return. He submits that the tax auditor and the assessee was not required and mandated under law to state whether or not the aforesaid sums were paid before the due date of filing of the return. Thus, the Assessing Officer could not have made the said addition except by way of issue of notice under Section 143(2) and after verifying the facts in a scrutiny assessment. 10. We have considered the said contention but are not inclined to accept the same. The proviso to Section 43B of th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he due date of filing of the return. Thus, the Assessing Officer had rightly made and was justified in making prima facie adjustment for want of mandatory documents. 12. The petitioner, in the present case, did not file any application under Section 154 before the Assessing Officer claiming or stating therein that they had paid tax on or before the due date of filing of the return and, therefore, benefit under the proviso should be given to them. Even in the writ petition filed before this Court, it is not pleaded or averred that the amounts in question were paid on or before the due date of filing of the return. The petitioner may have succeeded if the documents were on record. It is further apparent that the assessee had not paid the amo....