TaxTMI 
TaxTMI 
2019 (2) TMI 894
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....of the case and in law, the ld. CIT(A) has erred in deleting the disallowance amounting to Rs. 16,52,15,683/- u/s. 43B of the IT Act being unpaid bonus. The ld. CIT failed to appreciate that the unpaid performance bonus to employees and directors of the company is neither statutory nor paid on accrual basis. 3. The ground raised by the assessee in the cross objection read as under: 1. On the facts and in the circumstances of the case and in law, the learned Deputy Commissioner of Income-tax 4(1)(1) (herein after referred to as 'DCII') has erred in reopening the assessment proceedings u/s. 147 of the Income-tax Act, 1961 (herein after referred to as 'the Act') and the Hon'ble CIT (Appeals) has erred in upholding the sa....
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....However, it was noticed that the quoted judgment pertains to section 36(1)(ii) and another is related to the sum payable by the employer in lieu of leave amount respectively. There for the facts of the quoted judgment were not similar with this case. Since the bonus amount remained unpaid till the date of filing return. In view of provisions cited above, this expenditure/provisions is liable to be disallowed. However, no disallowance has been made in assessment order. Due to that income was under assessed by Rs. 16,52,15,683/- resulted in short levy of tax of Rs. 7,46,88,558/- (30%+10%+3%) including interest of Rs. 1,85,31,747/- u/s. 234B. Therefore, keeping in mind the above, I am satisfied that the income chargeable to tax has escaped....
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....ge and opposed merely because certain additional/disallowance has been done by the A.O. In this regard, we note the submission of the ld. Counsel of the assessee that the ld. CIT(A) has not at all adjudicated the issue raised. We note that the ld. CIT(A) has reproduced the objection to reopening by the assessee but has dismissed the same by holding as under: 5.3. I have considered the stand of the AO, submission of appellant and the facts and circumstances of the case. I have also considered the judicial pronouncements referred and relied upon by the appellant. It is seen that the AO re-opened the file by issuing notice u/ s.148 dated 30.03.2015 and the appellant in response vide letter dated 21.04.2015 submitted that the return of income....
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....ote that the ld. CIT(A) has noted the submission of the assessee and observed as under: According to AO because the bonus amount of Rs. 56,28,38,981/- was paid before the due date for furnishing of return u/s.139(1) out of Rs. 72,80,54,664/-, which was shown as payable as on 31.03.2008 and because the balance amount of Rs. 16,52,15,683/- remained to be paid before the filing of the return, the amount of Rs. 16,52,15,683/- needed to be disa1lowed.Thus, the only objection of the AO is that the remaining amount of Rs. 16,52,15,683/- cannot be allowed on accrual basis. During the proceedings before AO, the appellant had submitted certain judicial pronouncements namely, from Allahabad High court [CIT Vs. Raza Textiles Ltd (2005) 148 Taxmann 30....
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....e said amount was customary bonus not covered u/s. 43B(C) and in support of the Act, the case laws were submitted. 11. On these facts, where no disallowance was made in the assessment conducted u/s. 143(3) of the act, it cannot be said that there was either absence of any information or that the view adopted by the A.O. pursuant to those submissions was not possible one. In these circumstances, the reopening is not sustainable on both the planks, as to absence of fresh material and that this is clear case of change of opinion. 12. The material upon which the assessment is reopened is not fresh material but the accounts of the assessee and the noting of the auditor as mentioned above. By no stretch of imagination, it can be said to be a fr....