Baroda Gujarat Gramin Bank, Bharuch V. Assistant Commissioner of Income Tax, Circle-1, Bharuch

ITA 207/SRT/2018

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 3160 (ITAT-SURAT)
• Duration Of Justice: 3 year(s) 6 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-10-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2012-2013
• Appeal Filed On: 20-03-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: MUKUND RAO
• Keywords: Question of law; Corroborative evidences; Revised return
• Section: 143(3); 80HHC

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, SURAT BENCH, SURAT BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER AND DR. ARJUN LAL SAINI, ACCOUNTANT MEMBER ITA NO.207/SRT/2018 (AY 2012-13) (H EARING IN VIRTUAL COURT) BARODA GUJARAT GRAMIN BANK, SKYLINE BUILDING, 2 ND FLOOR, NR. SHEETAL GUEST HOUSE, BHARUCH. PAN: AABTB 0390 F VS THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-1, BHARUCH. ASSESSEE / APPELLANT REVENUE /RESPONDENT ASSESSEE BY SHRI MUKUND RAO - CA REVENUE BY SHRI RITESH MISHRA - CIT(DR) DATE OF HEARING 01 . 10 .2021 DATE OF PRONOUNCEMENT 01.10.2021 ORDER UNDER SECTION 254(1) OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER: 1. THIS APPEAL BY ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-3, VADODARA DATED 19.12.2017 FOR ASSESSMENT YEAR (AY) 2012-13. GROUNDS RAISED BY THE ASSESSEE ARE AS FOLLOWS: THE APPELLANT PRAYS AND APPEALS THAT THE LEARNED CIT (APPEALS) 3, VADODARA HAS ERRED IN LAW AND ON FACTS NOT ALLOWING THE ADDITIONS MADE BY THE ASSESSING OFFICER U/S 143(3) OF THE INCOME-TAX ACT, 1961. THE APPELLANT THEREFORE PRAYS THAT THE FULL DEDUCTION OF RS.4,35,73,275/- SHOULD BE ALLOWED U/S 36(1)(VIA) OF THE INCOME TAX ACT, 1961 INSTEAD THE PART DEDUCTION ALLOWED OF RS.1,18,16,928/- BY THE CIT (APPEALS)-3, BARODA. WITHOUT PREJUDICE TO THE ABOVE APPELLANT RESERVES ITS RIGHT TO MAKE ANY AMENDMENT TO THE GROUNDS OF APPEAL AT THE TIME OF HEARING. ITA NO.534/SRT/2018 FOR A.Y. 2014-15 SHRI DIPIN SHYAMPRAKASH VAIDYAN, SURAT 2 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS A REGIONAL RURAL BANK, PROMOTED BY BANK OF BARODA. FOR THE ASSESSMENT YEAR UNDER CONSIDERATION, I.E. 2012- 13, THE ASSESSEE FILED RETURN OF INCOME ON 18.09.2012 DECLARING TAXABLE INCOME OF RS.14,57,42,110/-. THE CASE WAS SELECTED FOR SCRUTINY AND ASSESSMENT WAS COMPLETED UNDER SECTION 143(3) OF THE ACT ON 30.01.2015. DURING THE ASSESSMENT, THE ASSESSING OFFICER (AO) NOTED THAT ASSESSEE HAS CLAIMED DEDUCTION UNDER SECTION 36(1)(VIA) OF THE ACT OF RS.1.18 CRORE. DURING THE ASSESSMENT, THE AO ASKED THE ASSESSEE ON JUSTIFICATION ON THE PROVISION OF NON-PERFORMING ASSETS (NPA) AND AS TO WHY IT SHOULD BE DISALLOWED AS IT IS NOT ALLOWABLE TO RURAL DEVELOPMENT BANK. THE ASSESSEE FILED ITS REPLY DATED 19.01.2015. THE ASSESSEE SUBMITTED THAT ASSESSEE HAS MADE PROVISION FOR NPA OF RS.6.39 CRORE, WHICH HAS BEEN DISALLOWED IN THE RETURN AND THE SUM OF RS.1.18 CRORE HAS BEEN CLAIMED AS AN ALLOWABLE DEDUCTION UNDER SECTION 36(1)(VIIA) OF THE ACT. THE AMOUNT OF RS.1.18 CRORE IS ALLOWABLE AS THE ASSESSEE IS SCHEDULE BANK CLASSIFIED IN SCHEDULE-II, BY RESERVE BANK OF INDIA (RBI) AND ARE NOT A PRIMARY CO-OPERATIVE AGRICULTURAL BANK AND RURAL RURAL DEVELOPMENT BANK. WE FIND THAT BEFORE AO THE ASSESSEE CLAIMED THAT IN MAKING CALCULATION OF ALLOWABLE OF DEDUCTION UNDER SECTION 36(1)(VIIA) , THERE IS A MISTAKE, THE ASSESSEE HAS CONSIDERED RS.1.18 CRORE WHEREAS ACTUAL CALCULATION WOULD BE 7.5% OF INTEREST EARNED ON ADVANCES. THE ASSESSEE EARNED INTEREST OF RS.58.09 CRORE AND 7.5% THEREOF ITA NO.534/SRT/2018 FOR A.Y. 2014-15 SHRI DIPIN SHYAMPRAKASH VAIDYAN, SURAT 3 WOULD AMOUNTS TO RS.4.35 CRORE. THUS THE ASSESSEE CLAIMED DEDUCTION OF RS.4.35 CRORE UNDER SECTION 36(1(VIIA). THE AO NOT CONSIDERED THE REVISED CLAIM OF ASSESSEE ON THE GROUND THAT ASSESSEE FAILED TO FURNISH SUPPORTING EVIDENCES OF ENHANCED CLAIM. FURTHER, NO CLAIM IS MADE BY FILING REVISED RETURN. THE AO ALSO DISALLOWED DEDUCTION UNDER SECTION 36(1)(VIIA) OF THE ACT, OF RS.1.18 CRORES CLAIMED INITIALLY. 3. ON APPEAL BEFORE THE LD. CIT(A), ORIGINAL CLAIM OF DEDUCTION UNDER SECTION 36(1)(VIIA) OF RS.1.18 CRORE WAS ALLOWED. HOWEVER ON THE PLEA OF ASSESSEE THAT THEY ARE ENTITLED FOR A DEDUCTION OF 7.5% OF TOTAL INTEREST EARNED ON ADVANCES OF RS.58.09 CRORE, THE LD CIT(A) MADE OBSERVATION THAT I AM NOT INCLINED TO ACCEPT THE SAME. IT IS MANDATED BY LAW TO ALLOW MAXIMUM PROVISION @7.5%. THAT DOES NOT MEAN THAT EVERY BANK WILL HAVE THIS MUCH NPA. NO JUSTIFICATION FOR THIS CONTENTION HAS BEEN PLACED BEFORE ME AND HENCE, THIS PLEA IS REJECTED. HOWEVER, FOR STATISTICAL PURPOSES, THIS GROUND OF APPEAL IS ALLOWED. FURTHER AGGRIEVED, THE ASSESSEE HAS FILED PRESENT APPEAL BEFORE THIS TRIBUNAL. 4. WE HAVE HEARD THE SUBMISSION OF LD. AUTHORISED REPRESENTATIVE (LD.AR) OF THE ASSESSEE AND THE LD. CIT-DR FOR THE REVENUE. THE LD.AR OF THE ASSESSEE SUBMITS THAT ASSESSEE IS NOT CO-OPERATIVE BANK. ASSESSEE IS A SCHEDULE BANK AND ENTITLED FOR DEDUCTION UNDER SECTION 36(1)(VIIA) OF THE ACT. THE LD.AR SUBMITS THAT BEFORE AO, THE ASSESSEE SUBMITTED REVISED COMPUTATION OF ITA NO.534/SRT/2018 FOR A.Y. 2014-15 SHRI DIPIN SHYAMPRAKASH VAIDYAN, SURAT 4 DEDUCTION UNDER SECTION 36(1)(VIIA) OF THE ACT AS THERE WAS A MISTAKE APPARENT IN THE CALCULATION CLAIM MADE INITIALLY. THE AO DISALLOWED THE CLAIM BY TAKING VIEW NO REVISED RETURN IS FILED BY ASSESSEE AND THE AO IS NOT ENTITLED TO ACCEPT REVISED CLAIM IN ABSENCE OF REVISED RETURN OF INCOME AS PER THE DECISION HONBLE SUPREME COURT IN GOETEZ INDIA LTD., VS. CIT 284 ITR 323. THE LD. CIT(A), THOUGH, ACCEPTED THE ORIGINAL CLAIM UNDER SECTION 36(1)(VIIA) OF THE ACT AND ALLOW RELIEF TO THE ASSESSEE. HOWEVER, FOR DEDUCTION @7.5% OF MAXIMUM PROVISION MANDATED BY LAW, THE LD. CIT(A) HELD THAT IT WILL CREATE LARGE NPA AND THAT THERE IS NO JUSTIFICATION FOR CLAIMING SUCH DEDUCTION. THE CONCLUSION GIVEN BY LD.CIT(A) IS NOT IN ACCORDANCE WITH THE MANDATE IN PROVISION OF SECTION 36(1)(VIIA) AND THE ASSESSEE IS ENTITLED FOR DEDUCTION OF RS. 4.35 CRORE. 5. ON THE OTHER HAND, THE LD. CIT-DR FOR THE REVENUE SUPPORTED THE ORDER OF LD.CIT(A). 6. WE HAVE CONSIDERED THE RIVAL SUBMISSION OF THE PARTIES AND HAVE GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. WE FIND THAT THE ORIGINAL DEDUCTION CLAIMED UNDER SECTION 36(1)(VIIA) OF THE ACT HAS ALREADY BEEN ALLOWED BY LD.CIT(A). THE ADDITIONAL CLAIM WAS NOT ACCEPTED BY THE AO ON THE GROUND THAT HE IS NOT EMPOWERED TO ACCEPT ADDITIONAL CLAIM IN ABSENCE OF REVISED RETURN. THE LD. CIT(A) NOT CONSIDERED THE REVISED CLAIM BY TAKING VIEW THAT IT WILL CREATE HUGE NPA. THE LD CIT(A) HAS NOT GIVEN FINDING ON THE AUSPECT, IF THERE WAS A ITA NO.534/SRT/2018 FOR A.Y. 2014-15 SHRI DIPIN SHYAMPRAKASH VAIDYAN, SURAT 5 MISTAKE BY ASSESSEE IN CALCULATING THE DEDUCTION OF IT WAS FRESH CLAIM BY ASSESSEE. 7. THE HONBLE JURISDICTIONAL HIGH COURT IN PCIT VS MITESH IMPEX (367 ITR 85) WHILE CONSIDERING THE QUESTION OF LAW RELATING TO RAISING THE ADDITIONAL GROUNDS OF APPEAL AND FOR MAKING FRESH CLAIM HELD AS UNDER ; 30. IN WHAT MANNER AND TO WHAT EXTENT, A GROUND, A LEGAL CONTENTION OR A FRESH CLAIM CAN BE MADE AT AN APPELLATE STAGE ARE VEXED QUESTIONS AND HAVE OCCUPIED THE MINDS OF THE COURTS IN NUMEROUS OCCASIONS. 31. IN THE CASE OF JUTE CORPN. OF INDIA LTD. V. CIT [1991] 187 ITR 688 THE SUPREME COURT NOTED WITH APPROVAL OBSERVATION OF THE COURT IN THE CASE OF CIT V. KANPUR COAL SYNDICATE [1964] 53 ITR 225 TO THE EFFECT THAT 'THE APPELLATE ASSISTANT COMMISSIONER, THEREFORE, HAS PLENARY POWERS IN DISPOSING OF APPEAL. THE SCOPE OF HIS POWER IS CO- TERMINUS WITH THAT OF THE INCOME-TAX OFFICER. HE CAN DO WHAT THE INCOME-TAX OFFICER CAN DO AND ALSO DIRECT HIM TO DO WHAT HE HAS FAILED TO DO.' IT WAS OBSERVED THAT THERE WAS NO REASON WHY THE APPELLATE AUTHORITY CANNOT MODIFY THE ASSESSMENT ORDER ON AN ADDITIONAL GROUND EVEN IF NOT RAISED BEFORE THE INCOME-TAX OFFICER. THE ACT DOES NOT PLACE ANY RESTRICTION OR LIMITATION ON THE EXERCISE OF APPELLATE POWER. IT WAS OBSERVED THAT: 'THE ABOVE OBSERVATIONS ARE SQUARELY APPLICABLE TO THE INTERPRETATION OF SECTION 251(1)(A) OF THE ACT. THE DECLARATION OF LAW IS CLEAR THAT THE POWER OF THE APPELLATE ASSISTANT COMMISSIONER IS CO-TERMINUS WITH THAT OF THE INCOME-TAX OFFICER, IF THAT BE SO, THERE APPEARS TO BE NO REASON AS TO WHY THE APPELLATE AUTHORITY CANNOT MODIFY THE ASSESSMENT ORDER ON AN ADDITIONAL GROUND EVEN IF NOT RAISED BEFORE THE INCOME-TAX OFFICER. NO EXCEPTION COULD BE TAKEN TO THIS VIEW AS THE ACT DOES NOT PLACE ANY RESTRICTION OR LIMITATION ON THE EXERCISE OF APPELLATE POWER. EVEN OTHERWISE AN APPELLATE AUTHORITY WHILE HEARING APPEAL AGAINST THE ORDER OF A SUBORDINATE AUTHORITY HAS ALL THE POWERS WHICH THE ORIGINAL AUTHORITY MAY HAVE IN DECIDING THE QUESTION BEFORE IT SUBJECT TO THE RESTRICTIONS OR LIMITATIONS IF ANY PRESCRIBED BY THE STATUTORY PROVISIONS. IN THE ABSENCE OF ANY STATUTORY PROVISION THE APPELLATE AUTHORITY IS VESTED WITH ALL THE PLENARY POWERS WHICH THE SUBORDINATE AUTHORITY MAY HAVE IN THE MATTER. THERE APPEARS TO BE NO GOOD REASON AND NONE WAS PLACED BEFORE US TO JUSTIFY CURTAILMENT OF THE POWER OF THE APPELLATE ASSISTANT COMMISSIONER IN ENTERTAINING AN ADDITIONAL GROUND ITA NO.534/SRT/2018 FOR A.Y. 2014-15 SHRI DIPIN SHYAMPRAKASH VAIDYAN, SURAT 6 RAISED BY THE ASSESSEE IN SEEKING MODIFICATION OF THE ORDER OF ASSESSMENT PASSED BY THE INCOME-TAX OFFICER.' 32. IN CASE OF NATIONAL THERMAL POWER CO. LTD. V. CIT [1998] 229 ITR 383 (SC) WHEN THE QUESTION OF LAW WAS RAISED FOR THE FIRST TIME BEFORE THE TRIBUNAL THOUGH FACTS WERE ALREADY ON RECORD, THE SUPREME COURT OBSERVED THAT THERE IS NO REASON WHY THE ASSESSEE SHOULD BE PREVENTED FROM RAISING SUCH A QUESTION BEFORE THE TRIBUNAL FOR THE FIRST TIME SO LONG AS THE RELEVANT FACTS ARE ON RECORD IN RESPECT OF THE ITEM CONCERNED. THERE IS NO REASON TO RESTRICT THE POWER OF THE TRIBUNAL IN SUCH APPEAL ONLY TO DECIDE THE GROUNDS WHICH ARISE FROM THE ORDER OF COMMISSIONER (APPEALS). THE TRIBUNAL SHOULD NOT BE PREVENTED FROM CONSIDERING THE QUESTIONS OF LAW ARISING IN ASSESSMENT PROCEEDINGS ALTHOUGH NOT RAISED EARLIER. 33. IN CASE OF GOETZE (INDIA) LTD. ( SUPRA ) THE SUPREME COURT DISTINGUISHED THE JUDGMENT IN THE CASE OF NATIONAL THERMAL POWER CO. LTD. ( SUPRA ) ON THE GROUND THAT THE SAME PERTAINED TO THE POWER OF THE TRIBUNAL UNDER SECTION 254 OF THE ACT TO ENTERTAIN A POINT OF LAW FOR THE FIRST TIME AND COMMENTED THAT SUCH DECISION DOES NOT RELATE TO THE POWER OF THE ASSESSING OFFICER TO ENTERTAIN A CLAIM FOR DEDUCTION OTHERWISE THAN BY FILING A REVISED RETURN. IN THE PROCESS THE SUPREME COURT RECOGNIZED THAT A NEW CLAIM COULD NOT BE ENTERTAINED BY THE ASSESSING OFFICER WITHOUT THE ASSESSEE REVISING THE RETURN. WHILE DOING SO IT WAS CLARIFIED THAT: '4. . . HOWEVER, WE MAKE IT CLEAR THAT THE ISSUE IN THIS CASE IS LIMITED TO THE POWER OF THE ASSESSING AUTHORITY AND DOES NOT IMPINGE ON THE POWER OF THE INCOME-TAX APPELLATE TRIBUNAL UNDER SECTION 254 OF THE INCOME-TAX ACT, 1961. THERE SHALL BE NO ORDER AS TO COSTS.' 34. IN THE CASE OF CIT V. JAI PARABOLIC SPRINGS LTD. [2008] 306 ITR 42/172 TAXMAN 258 (DELHI) , THE DELHI HIGH COURT HELD THAT THERE IS NO PROHIBITION ON THE POWERS OF THE TRIBUNAL TO ENTERTAIN AN ADDITIONAL GROUND WHICH ACCORDING TO THE TRIBUNAL AROSE IN THE MATTER AND FOR JUST DECISION OF THE CASE. 35. IN CASE OF CIT V. PRUTHVI BROKERS & SHAREHOLDERS (P.) LTD. [2012] 349 ITR 336/208 TAXMAN 498/23 TAXMANN.COM 23 (BOM.) THE BOMBAY HIGH COURT CONSIDERED THE ISSUE AT CONSIDERABLE LENGTH AND HELD THAT COMMISSIONER (APPEALS) AS WELL AS THE TRIBUNAL HAVE THE JURISDICTION TO CONSIDER THE ADDITIONAL CLAIM AND NOT MERELY ADDITIONAL LEGAL SUBMISSIONS. THE APPELLATE AUTHORITIES HAVE DISCRETION TO PERMIT SUCH ADDITIONAL CLAIMS. SUCH CLAIMS NEED NOT BE THOSE WHICH BECAME AVAILABLE ON ACCOUNT OF CHANGE OF CIRCUMSTANCES OF LAW BUT WHICH WERE EVEN AVAILABLE WHEN THE RETURN WAS FILED. 36. THE DELHI HIGH COURT ONCE AGAIN IN RECENT JUDGMENT IN THE CASE OF CIT V. SAM GLOBAL SECURITIES LTD. [2014] 360 ITR 682/[2013] 38 TAXMANN.COM 129 OBSERVED THAT THE COURTS ITA NO.534/SRT/2018 FOR A.Y. 2014-15 SHRI DIPIN SHYAMPRAKASH VAIDYAN, SURAT 7 HAVE TAKEN A PRAGMATIC VIEW AND NOT A TECHNICAL ONE AS TO WHAT IS REQUIRED TO BE DETERMINED IN TAXABLE INCOME. IN THAT SENSE ASSESSMENT PROCEEDINGS ARE NOT ADVERSARIAL IN NATURE. WITH THESE OBSERVATIONS COURT CONFIRMED THE VIEW OF THE TRIBUNAL REVERSING THE DECISION OF THE ASSESSING OFFICER REJECTING THE CLAIM OF THE ASSESSEE ON THE GROUND THAT NO REVISED RETURN WAS FILED. 37. IN CASE OF CIT V. CELLULOSE PRODUCTS OF INDIA LTD. [1985] 151 ITR 499 (GUJ.) , FULL BENCH OF THIS COURT HELD THAT MERELY BECAUSE A GROUND HAS NOT BEEN RAISED THOUGH IT COULD HAVE BEEN RAISED IN SUPPORT OF THE RELIEF SOUGHT IN THE APPEAL, IT CANNOT BE SAID THAT SUCH GROUND CANNOT BE RAISED BEFORE THE TRIBUNAL. SUCH GROUND CAN BE RAISED PROVIDED IT FALLS WITHIN THE CONTOURS OF THE SUBJECT MATTER OF THE APPEAL. 38. IT THUS BECOMES CLEAR THAT THE DECISION OF THE SUPREME COURT IN THE CASE OF GOETZE (INDIA) LTD. ( SUPRA ) IS CONFINED TO THE POWERS OF THE ASSESSING OFFICER AND ACCEPTING A CLAIM WITHOUT REVISED RETURN. THIS IS WHAT SUPREME COURT OBSERVED IN THE SAID JUDGMENT WHILE DISTINGUISHING THE JUDGMENT IN THE CASE OF NATIONAL THERMAL POWER CO. LTD. ( SUPRA ) AND THAT IS HOW VARIOUS HIGH COURTS HAVE VIEWED THE DICTUM OF THE DECISION IN THE CASE OF GOETZE (INDIA) LTD. ( SUPRA ). WHEN IT COMES TO THE POWER OF APPELLATE COMMISSIONER OR THE TRIBUNAL, THE COURTS HAVE RECOGNIZED THEIR JURISDICTION TO ENTERTAIN A NEW GROUND OR A LEGAL CONTENTION. A GROUND WOULD HAVE A REFERENCE TO AN ARGUMENT TOUCHING A QUESTION OF FACT OR A QUESTION OF LAW OR MIXED QUESTION OF LAW OR FACTS. A LEGAL CONTENTION WOULD ORDINARILY BE A PURE QUESTION OF LAW WITHOUT RAISING ANY DISPUTE ABOUT THE FACTS. NOT ONLY SUCH ADDITIONAL GROUND OR CONTENTION, THE COURTS HAVE ALSO, AS NOTED ABOVE, RECOGNIZED THE POWERS OF THE APPELLATE COMMISSIONER AND THE TRIBUNAL TO ENTERTAIN A NEW CLAIM FOR THE FIRST TIME THOUGH NOT MADE BEFORE THE ASSESSING OFFICER. INCOME-TAX PROCEEDINGS ARE NOT STRICTLY SPEAKING ADVERSARIAL IN NATURE AND THE INTENTION OF THE REVENUE WOULD BE TO TAX REAL INCOME. 39. THIS IS PRIMARILY ON THE PREMISE THAT IF A CLAIM THOUGH AVAILABLE IN LAW IS NOT MADE EITHER INADVERTENTLY OR ON ACCOUNT OF ERRONEOUS BELIEF OF COMPLEX LEGAL POSITION, SUCH CLAIM CANNOT BE SHUT OUT FOR ALL TIMES TO COME, MERELY BECAUSE IT IS RAISED FOR THE FIRST TIME BEFORE THE APPELLATE AUTHORITY WITHOUT RESORTING TO REVISING THE RETURN BEFORE THE ASSESSING OFFICER. 40. THEREFORE, ANY GROUND, LEGAL CONTENTION OR EVEN A CLAIM WOULD BE PERMISSIBLE TO BE RAISED FOR THE FIRST TIME BEFORE THE APPELLATE AUTHORITY OR THE TRIBUNAL WHEN FACTS NECESSARY TO EXAMINE SUCH GROUND, CONTENTION OR CLAIM ARE ALREADY ON RECORD. IN SUCH A CASE THE SITUATION WOULD BE AKIN TO ALLOWING A PURE QUESTION OF LAW TO BE RAISED AT ANY STAGE OF THE PROCEEDINGS. THIS IS PRECISELY WHAT HAS HAPPENED IN THE PRESENT CASE. THE APPELLATE COMMISSIONER AND THE TRIBUNAL DID NOT NEED TO NOR DID THEY TRAVEL BEYOND ITA NO.534/SRT/2018 FOR A.Y. 2014-15 SHRI DIPIN SHYAMPRAKASH VAIDYAN, SURAT 8 THE MATERIALS ALREADY ON RECORD, IN ORDER TO EXAMINE THE CLAIMS OF THE ASSESSEES FOR DEDUCTIONS UNDER SECTIONS 80-IB AND 80HHC OF THE ACT. 41. IN THE DECISIONS THAT WE HAVE NOTED ABOVE, THE COURTS HAVE CONSIDERED SUCH QUESTIONS WHEN A LEGAL CONTENTION OR A CLAIM WAS BASED ON MATERIAL ALREADY ON RECORD BUT RAISED AT AN APPELLATE STAGE. ON SUCH PREMISE WE WHOLEHEARTEDLY AGREE THAT THE APPELLATE AUTHORITY AND THE TRIBUNAL WOULD HAVE THE POWER TO ENTERTAIN ANY SUCH NEW GROUND, LEGAL CONTENTION OR CLAIM. HOWEVER, IT IS ONLY THE BOMBAY HIGH COURT IN THE CASE OF CIT V. PRUTHVI BROKERS & SHAREHOLDERS (P.) LTD. ( SUPRA ), WHICH HAS TRAVELLED A LITTLE BEYOND THIS PREPOSITION AND COME TO THE CONCLUSION THAT EVEN IF FACTS NECESSARY TO EXAMINE SUCH A CLAIM ARE NOT PLACED BEFORE THE ASSESSING OFFICER AND, THEREFORE, NOT ON RECORD, THERE WOULD BE NO IMPEDIMENT IN THE COMMISSIONER (APPEALS) ENTERTAINING SUCH A CLAIM. SUCH AN ISSUE DOES NOT ARISE IN THESE APPEALS. WE WOULD, THEREFORE, RESERVE OUR OPINION ON THIS LIMITED ASPECT OF THE MATTER IF AND WHEN IN FUTURE THE QUESTION PRESENTS BEFORE US IN SUCH FORM. FOR THE PRESENT, WE ANSWER QUESTIONS (3) AND (4) AGAINST THE REVENUE AND IN FAVOUR OF THE ASSESSEES IN MANNER DESCRIBED ABOVE. (E MPHASIS ADDED BY US). 8. IN VIEW OF THE AFORESAID LEGAL POSITION, IT IS CLEAR THAT THE AO IS NOT ENTITLED TO ENTERTAIN FRESH CLAIM, HOWEVER, THESE RESTRICTION IS NOT APPLICABLE ON THE FIRST APPELLATE AUTHORITY OR ON THE TRIBUNAL. WE FIND THAT BEFORE THE AO ASSESSEE CLAIMED THAT DUE TO CALCULATION MISTAKE THE ASSESSEE CLAIMED DEDUCTION UNDER SECTION 36(1)(VIIA) OF RS. 1.18 CRORE, HOWEVER, THEY ARE ENTITLED FOR RS.4.35 CRORE @7.5% OF INTEREST EARNED ON THE ADVANCES ON RURAL LOAN. IN OUR VIEW IT WAS NOT A FRESH CLAIM. THE AO SHOULD HAVE EXAMINED THE FACT INSTEAD OF REJECTING THE CLAIM BY RAISING LEGAL OBJECTION. TO AVOID ANY FURTHER OBJECTION BY THE LOWER AUTHORITY, WE ADMIT THE ADDITIONAL CLAIM OF THE ASSESSEE AND RESTORE THE ISSUE BACK TO THE FILE OF AO TO EXAMINE THE FACTS AS TO HOW MUCH ITA NO.534/SRT/2018 FOR A.Y. 2014-15 SHRI DIPIN SHYAMPRAKASH VAIDYAN, SURAT 9 INTEREST EARNED BY THE ASSESSEE ON RURAL ADVANCES AND ALLOW RELIEF TO THE ASSESSEE IN ACCORDANCE WITH LAW. 9. NEEDLESS TO ORDER THAT BEFORE PASSING THE ORDER THE AO SHALL GRANT OPPORTUNITY OF HEARING TO THE ASSESSEE. IN THE RESULT THE GROUND OF APPEAL RAISED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. 10. IN THE RESULT, GROUND RAISED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSE. ORDER ANNOUNCED ON 01 OCTOBER, 2021 AT THE TIME OF HEARING IN VIRTUAL COURT HEARING. SD/- SD/- (DR ARJUN LAL SAINI) (PAWAN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER SURAT, DATED: 05/10/2021 / SGR* COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT(A) 4. CIT 5. DR 6. GUARD FILE BY ORDER / / TRUE COPY / / SR.PVT. SECRETARY, ITAT, SURAT