PINAKI CHANDRA GHOSE J. - (1.) THE instant appeal under Section 260A of the IT Act, 1961 (hereinafter referred to as 'the Act') for the asst. yr. 1989 -90 was admitted for hearing on the following questions of law: (1) Whether disallowance under Section 143(1)(a) of the IT Act, 1961 can be made merely because proof in support of a claim made in the return is not annexed to the return? (2) Whether the Tribunal was justified in holding that the disallowance made by the AO falls within the purview of prima facie adjustment within the meaning of Section 143(1)(a) and its purported finding in this behalf are arbitrary, unreasonable and perverse?
(2.) THE facts of the case briefly are as follows: (a) The assessee filed its returns for the asst. yr. 1989 -90 along with the tax audit report under Section 44AB of the Act. In the computation of income, the assessee claimed deduction of Rs. 21,12,766 under Section 80G, being 50 per cent of the donation amount of Rs. 42,25,533. Serial No.7 of the tax audit report filed with the return reads as follows: 7. Any tax, duty or other sum (i) Debited to the P&L; a/c but not paid during the previous year Rs. 1,66,20,857=02 (ii) Paid during the previous year but allowed as a deduction in any earlier year Section 43B Rs. 1,22,21,679=88 (b) In respect of the said return, an intimation under Section 143(1)(a) of the Act was issued by the AO on 6th Aug., 1990. In the said intimation, the AO made, inter alia, the following adjustments: (i) Disallowance under Section 43B as per tax audit report Rs. 1,66,20,887 (ii) Donation debited to P&L; a/c disallowed for want of any receipt and also for want any valid certificate for tax exemption certificate filed Rs. 42,25,532 As a result of the aforesaid adjustments, the assessee was made liable for payment of additional tax over and above the normal tax At the material time, the Act did not provide for any appeal against the intimation under Section 143(1){a) of the Act. On 15th March, 1991 the assessee made an application under Section 154 of the Act objecting the said adjustments. The assessee furnished, inter alia, break -up of the sum of Rs. 1,66,20,857 mentioned in the tax audit report comprising commission to directors (Rs. 1,26,773) and bonus (Rs. 1,50,00,000) both falling under Clause (c) of Section 43B and PF contribution (Rs. 14,94,084) falling under Clause (b) of Section 43B and submitted evidence in support of its claim for allowability of the said amounts
(3.) THE AO by an order dt. 28th Feb., 1992 under Section 143(1)(a)/154, out of Rs. 1,66,20,857 allowed a sum of Rs. 1,51,47,884 comprising commission to directors (Rs. 1,26,773), bonus (Rs. 1,35,48,969) and PF contribution (Rs. 14,72,142). The disallowance under Section 43B was retained to the extent of Rs. 14,72,973 comprising bonus (Rs. 14,51,031) and PF contribution (Rs. 21,942). The AO also allowed a portion of the assessee's claim for deduction under Section 80G;