Abhinitha Foundation Pvt Ltd., CHENNAI V. DCIT, CHENNAI

ITA 281/CHNY/2016

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 9411 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-04-2016
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 11-02-2016
• Court: TRIBUNAL
• Department Lawyers: A B KOLI JCIT
• Assessee Lawyers: B RAMAKRISHNANC A
• Keywords: Depreciation; Revised return
• Section: 6; 90; 139

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI ... , , , BEFORE SHRI N.R.S.GANESAN, JUDICIAL MEMBER AND SHRI CHANDRA POOJARI , ACCOUNTANT MEMBER . / I.T.A.NO.281 /MDS./2016 ( ! / ASSESSMENT YEAR :2011-12) M/S.ABHINIHA FOUNDATION PVT. LTD., NEW NO.9, OLD NO.3, RADHAKRISHNAN STREET, T.NAGAR, CHENNAI 600 017. VS. THE DEPUTY COMMISSIONER OF INCOME TAX, COMPANY CIRCLE- 1(1), CHENNAI-34. PAN AAFCA 0140 F ( / APPELLANT ) ( / RESPONDENT ) '# $ % / APPELLANT BY : MR.B.RAMAKRISHNAN,C.A. &''# $ % / RESPONDENT BY : MR.A.B.KOLI,JCIT, D.R ( ) $ *+ / DATE OF HEARING : 18.04.2016 ,-! $ *+ /DATE OF PRONOUNCEMENT : 29.04.2016 / O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER: THIS APPEAL IS FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX(A)- I, CHENNAI DATED 29.12.2015 PERTAINING TO THE ASSESSMENT YEAR 2011-12. ITA NO.281/MDS/2016 2 2. THE GRIEVANCE OF THE ASSESSEE IS WITH REGARD TO NON-GRANTING OF DEDUCTION U/S.80-IB OF THE ACT. 3. THE BRIEF FACTS OF THE CASE ARE THAT ASSESSEE F ILED ITS RETURN OF INCOME FOR ASSESSMENT YEAR 2011-12 ON 30.09.2011 AD MITTING TOTAL INCOME OF ` 3,63,39,110/-. IN THE RETURN OF INCOME, THE ASSESS EE HAD NOT MADE ANY CLAIM WITH REFERENCE TO DEDUCTION U/S. 80-IB(10) OF THE ACT. HOWEVER, THE SAME WAS CLAIMED AT THE STAGE OF ASSESSMENT BY FILING DETAILS OF PROJECT CARRIED OUT BY THE ASSESS EE AND THE ENTITLEMENT OF SEC. 80-IB(10) DEDUCTION ALONG WITH THE FORM-10CCB. THE AO OVERLOOKED THE CLAIM OF ASSESSEE AND DENIED THE DEDUCTION U/S.80-IB(10) OF THE ACT. THE ASSESSEE CARRIED THE APPEAL BEFORE THE LD.CIT(A). ON APPEAL, THE LD.CIT(A) REJECTED THE S AME BY OBSERVING THAT:- 5. AT THE APPELLATE STAGE, THESE FACTS HAVE BEEN DISPUTED. THE APPELLANT HAS RELIED UPON ME CASE OF CIT VS. RAMCO LNTERNATIONAL (332 ITR 306) (P&H) (HC) TO PRESS ITS CLAIM TO BE A LLOWED U/S.801B(10). THE FACTS OF THAT CASE ARE DISTINGUIS HABLE FROM THOSE OBTAINING IN THE CASE OF THE APPELLANT. IN TH AT CASE, THE ASSESSEE HAS FILED FORM NO.10CCB ON THE CLAIM AGITA TED BY IT. ITA NO.281/MDS/2016 3 THE APPELLANT HAD PREFERRED THE CLAIM OF DEDUCTION BEFORE THE AO WHICH WAS NOT ENTERTAINED IN VIEW OF THE JUDGMENT O F SUPREME COURT DECISION IN THE CASE CF GOETZE INDIA LTD. VS. . CIT (284 ITR 323). SIMILARLY, IN THE CASE OF SANCHIT SOFTWARE AR ID SOLUTIONS (P) LTD VS. CIT (2012) 349 ITR 404) (BORN) RELIED UPON BY THE APPELLANT IS DISTINGUISHABLE FROM THE CASE OF THE A PPELLANT IN THAT CASE, THE APPEAL WAS AGAINST THE REJECTION OF PETIT ION U/S 264 OF THE ACT BY THE CIT IN RESPECT OF AN APPLICATION FOR CLAIM OF DEDUCTION U/S.10(34)/(10(38). EVEN IN THE CASE OF C IT VS BHARAT ALUMINIUM CO. LTD IN ITA NO. 16O/2005 (DEL.), THE F ACTS ARE DISTINGUISHABLE INASMUCH THERE WAS NO REVISED COMPU TATION OF INCOME/REVISED RETURN FILED BY THE APPELLANT BEFORE THE AO. IN OTHER WORDS, THE CASE LAWS RETIED ON BY THE APPELLA NT DOES NOT AID THE CLAIM MADE BY THE APPELLANT. 6. THE APPELLANT HAD ALSO PLEADED THAT THE CLAIM OF DEDUCTION U/S.80LB(10) HAD BEEN ENJOYED BY IT IN THE PRECEDIN G AND SUCCEEDING YEARS AND IT SHOULD THEREFORE BE ALLOWED IN THE YEAR UNDER CONSIDERATION WHICH IS UNDER APPEAL. THIS PLE A OF THE APPELLANT IS ALSO NOT MAINTAINABLE. THE APPELLANT I S A CORPORATE, ASSISTED WITH IN-HOUSE AND INTERNAL AUDITORS AND OT HER PROFESSIONALS TO AID CLAIMS AS THIS IN THE IT RETUR N. WHEN THE ITA NO.281/MDS/2016 4 CLAIM ITSELF HAS NOT BEEN MADE, THE APPELLANT CANNO T TURN BACK AND SAY THAT THE CLAIM OUGHT TO HAVE BEEN ALLOWED. TO THAT EXTENT, THE CLAIM U/S.80IB IS NOT SIMILAR TO THE CLAIM OF D EPRECIATION WHERE EXPLANATION 5 TO SEC.32 OF THE IT ACT, IRRESPECTIVE OF WHETHER THE CLAIM HAS BEEN MADE OR NOT, OBLIGATES THE AO TO COM PUTE THE DEPRECIATION AND ALLOW IT AS SUCH IN TERMS OF EXPRE SS PROVISO TO SEC. 32. NO SUCH EXPRESS PROVISION IN THE STATUTE I N RESPECT OF CLAIM U/S.80IB IS PROVIDED FOR. FURTHER, IN ACCORDA NCE WITH PROVISION U/S.246 OF THE ACT, AN AGGRIEVED ASSESSEE CAN FILE AN APPEAL BEFORE CIT(A). IN THIS SE THE AO HAS ACCEPT ED THE RETURN FILED BY THE APPELLANT AND APPELLANT THEREFORE CANN OT BE AGGRIEVED ON SUCH AN ORDER. 7. THE CLAIM ALSO DOES NOT SUPPORT ADDITIONAL EVIDE NCE, ESPECIALLY, WHEN THE EVIDENCE WAS AVAILABLE TO THE PARTY AT INI TIAL STAGE AND HAD NOT BEEN PRESSED AT ALL BY IT. IN THE CASE OF ADDITIONAL CIT VS. GURJARGRAVURES (P) LTD (111 ITR 1). THE SUPREME COU RT HAS HELD THAT THE CLAIM FOR EXEMPTION NOT MADE BEFORE THE IT O AND WHEN THERE WAS NO MATERIAL ON RECORD TO SUPPORT SUCH CLA IM, THE AO CANNOT ENTERTAIN SUCH CLAIM IN APPELLATE PROCEEDING S. SIMILARLY, IT HAS BEEN HELD BY THE ALLAHABAD HIGH COURT IN THE CA SE OF CIT VS. GS RICE MILLS (136 ITR 761). TAKING THE SUM TOTALI TY OF THE FACTS ITA NO.281/MDS/2016 5 BEFORE ME INTO A ACCOUNT, I FIND THE PLEA OF THE AP PELLANT DEVOID OF MERITS AND HENCE REJECTED. THE GROUND OF APPEAL IS DISMISSED. AGAINST THIS ASSESSEE IS IN APPEAL BEFORE US. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. THE MAIN CONTENTION OF THE LD.A.R IS THAT THE ASSESSEE IS LEGALLY ENTITLED FOR DEDUCTION U/S.80-IB(10) OF THE ACT FOR THE ASSESSMENT YEAR UNDER CONSIDERATION. THE ASSESSEE HAD NOT MADE THE CLAIM IN THE RETURN OF INCOME INADVERTENTLY AND OMITTED TO FILL THE CLAIM OF DEDUCTION U/S.80-IB(10) OF THE ACT IN THE COLUMN FOR CHAPTER- VIA DEDUCTION. THE NON-FILING OF THE PARTICULAR FO RM CANNOT GO AGAINST THE ASSESSEE AND THE ENTITLEMENT OF DEDUCTION U/S.8 0-IB(10) OF THE ACT CANNOT BE DENIED BY THE DEPARTMENT AND HENCE, L D.A.R PRAYED THAT THE ISSUE MAY BE REMITTED TO AO TO CONSIDER TH E SAME. ACCORDING TO A.R., THE INADVERTENT MISTAKE COMMITTE D BY THE ASSESSEE CANNOT GO AGAINST THE ASSESSEE TO DENY THE LEGAL ENTITLEMENT OF ASSESSEE TO CLAIM DEDUCTION U/S.80-I B(10) OF THE ACT. ITA NO.281/MDS/2016 6 5.1 SECTION 139 OF THE ACT GOVERNS THE FILING OF R ETURN OF INCOME. SUB-SECTION (I) REQUIRES THE SPECIFIC CATEGORY OF P ERSONS TO FURNISH THEIR RETURN OF INCOME, IN THE PRESCRIBED FORM AND VERIFIED IN THE PRESCRIBED MANNER, BY A SPECIFIED DATE. THE PERSON IS ALSO REQUIRED TO PROVIDE SUCH OTHER PARTICULARS AS MAY BE PRESCRI BED. CERTAIN EXCEPTIONS TO THE GENERAL RULE HAVE BEEN PROVIDED. SUB-SECTION (3), REQUIRES A PERSON, WHO HAS INCURRED LOSS UNDER THE HEAD 'PROFITS AND GAINS OF BUSINESS OR PROFESSION' OR UNDER THE HEAD 'CAPITAL GAINS' AND CLAIMS THE LOSS OR ANY PART THEREOF TO BE CARRI ED FORWARD, UNDER THE RELEVANT PROVISION, TO FILE THE RETURN OF INCOM E BY THE DUE DATE AS PRESCRIBED UNDER SUB-SECTION (I). SUB-SECTION (5) O F SECTION 139, PERMITS A PERSON, WHO HAS FILED THE RETURN OF INCOM E AS REQUIRED UNDER SECTION 139(I) OR IN PURSUANCE OF NOTICE UNDE R SUB-SECTION (I) OF SECTION 142, TO FILE A REVISED RETURN, IF THE ASSES SEE DISCOVERS ANY OMISSION OR WRONG STATEMENT THEREIN. THE REVISED RE TURN IS TO BE FILED AT ANY TIME BEFORE THE EXPIRY OF ONE YEAR FROM THE END OF THE RELEVANT ASSESSMENT YEAR OR BEFORE THE COMPLETION OF ASSESSM ENT, WHICHEVER IS EARLIER. ITA NO.281/MDS/2016 7 5.2 FURTHER, ARTICLE 265 OF THE CONSTITUTION OF INDIA LAYS DOWN THAT NO TAX SHALL BE LEVIED EXCEPT WHEN AUTHORISED BY LA W. FOLLOWING THIS ARTICLE, ONLY LEGITIMATE TAX CAN BE RECOVERED AND E VEN A CONCESSION BY A TAX-PAYER DOES NOT GIVE AUTHORITY TO THE TAX C OLLECTOR TO RECOVER MORE THAN WHAT IS DUE FROM HIM UNDER THE LAW. 5.3 IT IS NOTED FROM CBDT'S CIRCULAR NO. 14(XL-35) DATED 11-4-1955. IN THE SAID CIRCULAR, THE CBDT OBSERVED THAT: '3. OFFICERS OF THE DEPARTMENT MUST NOT TAKE ADVANT AGE OF IGNORANCE OF AN ASSESSEE AS TO HIS RIGHTS. IT IS ONE OF THEIR DUTIE S TO ASSIST A TAXPAYER IN EVERY REASONABLE WAY, PARTICULARLY IN THE MATTER OF CLAIM ING AND SECURING RELIEFS AND IN THIS REGARD THE OFFICERS SHOULD TAKE THE INITIATIVE IN GUIDING A TAXPAYER WHERE PROCEEDINGS OR OTHER PARTICULARS BEFORE THEM INDICA TE THAT SOME REFUND OR RELIEF IS DUE TO HIM. THIS ATTITUDE WOULD, IN THE LONG RUN , BENEFIT THE DEPARTMENT FOR IT WOULD INSPIRE CONFIDENCE IN HIM THAT HE MAY BE SURE OF GETTING A SQUARE DEAL FROM THE DEPARTMENT. ALTHOUGH, THEREFORE, THE RESPO NSIBILITY FOR CLAIMING REFUNDS AND RELIEFS RESTS WITH ASSESSEE ON WHOM IT IS IMPOS ED BY LAW, OFFICERS SHOULD :- (A) DRAW THEIR ATTENTION TO ANY REFUNDS OR RE LIEFS TO WHICH THEY APPEAR TO BE CLEARLY ENTITLED BUT WHICH THEY HAVE OMITTED TO CLA IM FOR SOME REASON OR OTHER; (B) FREELY ADVISE THEM WHEN APPROACHED BY THE M AS TO THEIR RIGHTS AND LIABILITIES AND AS TO THE PROCEDURE TO BE ADOPTED F OR CLAIMING REFUNDS AND RELIEFS.' THE INTENTION OF THIS CIRCULAR IS NOT THAT TAX DU E SHOULD NOT BE CHARGED OR THAT ANY FAVOUR SHOULD BE SHOWN TO ANYBODY IN THE MATTER OF ASSESSMENT, OR THAT WHERE INVESTIGATIONS ARE CALLED FOR, THEY SHOULD NOT BE MADE. WHATEVER THE LEGITIMATE TA X IT MUST BE ASSESSED AND MUST BE COLLECTED. THE PURPOSE OF THIS CIRCULAR IS MERELY TO EMPHASISE THAT WE SHOULD NOT TAKE ADVANTAGE OF AN ASSESSEE'S IGNORANCE TO COLLECT MORE TAX OUT OF HIM THAN IS LEGITIMATELY DUE FROM HIM.' THE ABOVE CIRCULAR HAS BEEN JUDICIALLY NOTED AND AP PROVED IN MANY JUDGMENTS AND HAS BEEN RELIED UPON IN SUPPORT OF THE ASSESSEES' CLAIM. ITA NO.281/MDS/2016 8 5.4. IN GOETZE (INDIA) LTD. V. CIT 284 ITR 3 23 (SC) THE FACTS ARE THAT:- THE ASSESSEE FILED ITS RETURN OF INCOME ON 30-11-1 195 FOR A.Y. 1 995-96. DURING ASSESSMENT PROCEEDINGS IT SOUGHT TO CLAIM A DEDUCTION BY WAY OF A LETTER DATED 12-1-1988. THE DEDUCTION AS DISALLOWED BY THE ASSESSING OFFICER ON THE GROUND THAT THERE WAS NO PROVISION UNDER THE INCOME -TAX ACT TO MAKE AMENDMENT IN THE RETURN OF INCOME OTHERWISE THAN BY REVISING THE RETURN. IN APPEAL BEFORE THE CIT(A), THE ASSESSEES' CLAIM W AS ALLOWED. HOWEVER THE ITAT ALLOWED DEPARTMENTS' APPEAL AGAINST THE ORDER BY CIT(A). THE ASSESSEE IN APPEAL BEFORE THE SUPREME COURT RELIED UPON THE APE X COURT' DECISION IN NATIONAL THERMAL POWER CO. LTD. V. CIT (1998) 229 I TR 383 (SC) TO CONTEND THAT IT WAS OPEN TO ASSESSEE TO RAISE THE POINTS OF LAW EVEN BEFORE THE TRIBUNAL. THE APEX COURT HELD THAT THE CLAIM OF DEDUCTION NOT MADE IN THE RETURN CANNOT BE ENTERTAINED BY THE ASSESSING OFFICER OTHERWISE T HAN BY FILING A REVISED RETURN. THE COURT ALSO HELD THAT THE DECISION DOES NOT IMPI NGE UPON THE POWERS OF THE TRIBUNAL UNDER SECTION 254 OF THE ACT. THE JUDGMENT IN GOETZE'S CASE HAS OPENED THE FLOOD GATE TO LITIGATION. 5.5. FURTHER, THERE IS A DISTINCTION BETWEEN A FRESH CLAIM AND REVISED CLAIM. A DISTINCTION NEEDS TO BE MADE BETWE EN A FRESH CLAIM MADE DURING THE ASSESSMENT PROCEEDING THROUGH A LET TER AND REVISION OF RETURN. IN A CASE WHERE NO CLAIM WAS MADE IN THE RETURN, THE JUDGMENT IN GOETZE'S' CASE IS GENERALLY RELIED UPON BY THE ASSESSING OFFICER, IGNORING THE CIRCULAR NO.14(XL-35) CITED ABOVE. HOWEVER, WHERE NECESSARY EVIDENCE IN RESPECT OF A CLAIM IS ALREADY ON RECORD BUT THE QUANTUM OF DEDUCTION NEEDS REVISION DUE TO VARIOUS FACTORS, THE ASSESSEES' CLAIM THROUGH A LETTER OUGHT TO BE ACCEP TED. IN SUCH CASES ITA NO.281/MDS/2016 9 THERE IS ALREADY A CLAIM BY THE ASSESSEE AND THERE BEING NO FRESH CLAIM THE JUDGMENT IN GOETZE'S CASE, WITH DUE RESPE CT SHALL NOT BE APPLICABLE. 5.6. THE ALLAHABAD HIGH COURT IN CIT V. DHAMPUR SU GAR LTD. 90 ITR 236 (ALL.) MADE A DISTINCTION BETWEEN REVISED RETUR N AND A CORRECTION OF RETURN. IT HELD THAT THERE IS DISTINCTION BETWEE N A REVISED RETURN AND A CORRECTION OF RETURN. IF THE ASSESSEE FILES SOME APPLICATION FOR CORRECTING A RETURN ALREADY FILED OR MAKING AMENDS THEREIN, IT WOULD NOT MEAN THAT HE HAS FILED A REVISED RETURN. IT WIL L RETAIN THE CHARACTER OF AN ORIGINAL RETURN, BUT ONCE THE REVISED RETURN IS FILED, THE ORIGINAL RETURN MUST BE TAKEN TO HAVE BEEN WITHDRAWN AND TO HAVE BEEN SUBSTITUTED BY A FRESH RETURN FOR THE PURPOSE OF AS SESSMENT. 5.7 IN THE CASE OF CIT V. JAI PARBOLIC SPRINGS LTD. (2008) 306 ITR 42 (DEL.) WHEREIN HELD THAT THE ASSESSEE CLAIMED 1/ 5TH OF EXPENDITURE ON ACCOUNT OF CUSTOMER INTRODUCTION CHARGES IN THE RETURN OF INCOME AND TREATED THE BALANCE AS DEFERRED REVENUE EXPENDI TURE. THE ASSESSING OFFICER ALLOWED THE CLAIM. IN APPEAL BEFO RE THE CIT(A), BY WAY OF ADDITIONAL GROUND OF APPEAL, THE ASSESSEE CL AIMED THE ENTIRE EXPENDITURE AS ALLOWABLE DEDUCTION. THE CIT(A) ALLO WED THE CLAIM. THE ITAT, IN APPEAL BY THE DEPARTMENT, RESTORED THE ISSUE TO THE ASSESSING OFFICER TO CONSIDER AND DECIDE THE ISSUE AFTER EXAMINING THE DETAILS. THE ASSESSING OFFICER, IN THE FRESH ORDER DID NOT ALLOW THE CLAIM ON THE GROUND THAT IT WAS NOT MADE IN THE RET URN. BOTH THE ITA NO.281/MDS/2016 10 CIT(A) AND THE ITAT HELD THAT THE CLAIM WAS ALLOWAB LE AND ALLOWED THE SAME. 5.8 THE HON'BLE DELHI HIGH COURT HELD THAT IN GOETZ E (INDIA) LIMITED V. COMMISSIONER OF INCOME TAX 284 ITR 323 (SC) WHER EIN DEDUCTION CLAIMED BY WAY OF A LETTER BEFORE ASSESSING OFFICER , WAS DISALLOWED ON THE GROUND THAT THERE WAS NO PROVISION UNDER THE ACT TO MAKE AMENDMENT IN THE RETURN WITHOUT FILING A REVISED RE TURN. APPEAL TO THE SUPREME COURT, AS THE DECISION WAS UPHELD BY THE TR IBUNAL AND THE HIGH COURT, WAS DISMISSED MAKING CLEAR THAT THE DEC ISION WAS LIMITED TO THE POWER OF ASSESSING AUTHORITY TO ENTERTAIN CL AIM FOR DEDUCTION OTHERWISE THAN BY REVISED RETURN, AND DID NOT IMPIN GE ON THE POWER OF TRIBUNAL . 5.9 IN CIT V. RAMCO INTERNATIONAL (332 ITR 306 ) (P&H) WHEREIN HELD THAT WHEN FORM NO.10CCB FILED DURING THE ASSE SSMENT PROCEEDINGS, THE CLAIM OF THE ASSESSEE WAS MAINTAIN ABLE. THE ASSESSEE WAS NOT MAKING ANY FRESH CLAIM AND DULY FU RNISHED AND SUBMITTED THE FORM FOR CLAIM U/S.80-IB, THERE WAS N O REQUIREMENT OF FILING ANY REVISED RETURN. 6. CIT V. BHARAT ALUMINIUM LTD. 303 ITR 256 (DEL.) WHEREIN HELD THAT THE ASSESSEE SUBMITTED A REVISED COMPUTATION OF INC OME WHICH WAS NOT SIGNED BY THE PERSON WHO HAD SIGNED THE ORIGINA L RETURN OF INCOME. THE ASSESSING OFFICER DID NOT ACCEPT THE RE VISED COMPUTATION ON THE GROUND THAT IT WAS NOT SIGNED IN ACCORDANCE WITH SECTION ITA NO.281/MDS/2016 11 140(C) OF THE ACT. THE HON'BLE COURT RELYING ON THE DECISION IN DHAMPUR SUGAR LTD. 90 ITR 236 (ALL.), WHEREIN IT DI STINGUISHED BETWEEN THE ORIGINAL RETURN AND REVISED RETURN, HEL D THAT ORIGINAL RETURN WAS REQUIRED TO BE SIGNED AS PER SECTION 140 (C), WHEREAS THE REVISED COMPUTATION COULD BE SIGNED BY THE AUTHORIS ED PERSON. 6.1 IN THE CASE OF CIT V. NATRAJ STATIONERY PRODU CTS (P) LTD., (2009) 312 ITR 222 WHEREIN HELD THAT THE ASSESSEE HAD ASKE D FOR RE- COMPUTATION OF DEDUCTION UNDER SECTION 80-IB. RELYI NG ON GOETZE (INDIA) LTD. (SUPRA) THE REVENUE REJECTED THE CLAIM . AS THE ASSESSEE HAD NOT MADE ANY NEW CLAIM THE COURT HELD THAT THE SAID DECISION MAY NOT BE SQUARELY APPLICABLE. IT HELD THAT THE CO URTS HAVE TAKEN A PRAGMATIC VIEW AND NOT THE TECHNICAL VIEW AS WHAT I S REQUIRED TO BE DETERMINED IS THE TAXABLE INCOME OF THE ASSESSEE IN ACCORDANCE WITH THE LAW. IN THIS SENSE, ASSESSMENT PROCEEDINGS ARE NOT ADVERSARIAL IN NATURE. 6.2 IN THE CASE OF COMMISSIONER OF INCOME TAX V. ROSE SERVICES APARTMENT INDIA P. LTD., [2010] 326 ITR 100 (DELHI) WHEREIN HELD THAT RELYING UPON THE DECISION OF THE SUPREME COURT IN N ATIONAL THERMAL POWER CO. LTD. 229 ITR 383 (SC), THE COURT REJECTED THE PLEA OF THE REVENUE THAT THE TRIBUNAL COULD NOT HAVE ENTERTAINE D THE PLEA, HOLDING THAT THE TRIBUNAL WAS EMPOWERED TO DEAL WIT H THE ISSUE AND WAS ENTITLED TO DETERMINE THE CLAIM OF LOSS, IF AT ALL, UNDER ONE SECTION/PROVISION OR THE OTHER. ITA NO.281/MDS/2016 12 6.3 IN THE CASE OF CIT V. JINDAL SAW PIPES LTD., [2010] 328 ITR 338 (DELHI) WHEREIN HELD THAT DECISION IN GOETZE (INDIA ) LTD. (SUPRA) WAS RELIED UPON BY THE REVENUE BUT THE CONTENTION WAS N OT ACCEPTED, OBSERVING THAT THE TRIBUNAL'S JURISDICTION IS COMPR EHENSIVE AND ASSIMILATES ISSUES IN THE APPEAL FROM THE ORDER OF THE CIT (APPEALS) AND THE TRIBUNAL HAS THE DISCRETION TO ALLOW A NEW GROUND TO BE RAISED. 6.4 IN THE CASE OF UNIVERSAL SUBSCRIPTION AGENCY (PVT.) LTD. V. JCIT I 59 TAXMANN 64 (ALL.) WHEREIN HELD THAT IT WAS HEL D THAT THE DECISION OF THE APEX COURT IN GOETZE'S CASE HAS NOT LAID DOW N AS A MATTER OF LAW THAT THERE IS A BAR FOR THE ASSESSING OFFICER T O ENTERTAIN THE CLAIM FOR DEDUCTION OTHERWISE THAN BY FILING A REVISED RE TURN. 6.5 IN THE CASE OF CIT V. PRUTHVI BROKERS & SHAREHOLDER S PVT. LTD. 349 ITR 336 (BOM.) WHEREIN HELD THAT THE ASSESSEE F ILED A ROI IN WHICH IT OMITTED TO MAKE A CLAIM FOR PAYMENT OF SEB I FEES. THE CLAIM WAS MADE BY A LETTER DURING THE ASSESSMENT PROCEEDI NGS. THE AO REJECTED THE CLAIM ON THE GROUND THAT HE HAD NO AUT HORITY TO ALLOW ANY DEDUCTION WHICH HAD NOT BEEN CLAIMED IN THE ROI. TH E ASSESSEE RAISED THE CLAIM BEFORE THE CIT(A) WHO ALLOWED AND THIS WAS CONFIRMED BY THE TRIBUNAL. THE DEPARTMENT FILED AN APPEAL TO THE HIGH COURT CLAIMING THAT AS PER GOETZE 284 ITR 323 (SC), THE ASSESSEE WAS NOT ENTITLED TO MAKE AN ADDITIONAL CLAIM FOR DE DUCTION OTHER THAN BY FILING A REVISED RETURN. THE HIGH COURT DISMISSI NG THE APPEAL HELD THAT:- ITA NO.281/MDS/2016 13 IT IS WELL SETTLED THAT AN ASSESSEE IS ENTITLED TO RAISE NOT MERELY ADDITIONAL LEGAL SUBMISSIONS BEFORE THE APPE LLATE AUTHORITIES, BUT IS ALSO ENTITLED TO RAISE ADDITION AL CLAIMS BEFORE THEM. THE APPELLATE AUTHORITIES HAVE THE DIS CRETION WHETHER OR NOT TO PERMIT SUCH ADDITIONAL CLAIMS TO BE RAISED. IT CANNOT, HOWEVER, BE SAID THAT THEY HAVE NO JURISDIC TION TO CONSIDER THE SAME. THAT THEY MAY CHOOSE NOT TO EXER CISE THEIR JURISDICTION IN A GIVEN CASE IS ANOTHER MATTE R. THE EXERCISE OF DISCRETION IS ENTIRELY DIFFERENT FROM T HE EXISTENCE OF JURISDICTION. GOETZE WAS CONFINED TO A CASE WHER E THE CLAIM WAS MADE ONLY BEFORE THE AO AND NOT BEFORE TH E APPELLATE AUTHORITIES. THE COURT DID NOT LAY DOWN T HAT A CLAIM NOT MADE BEFORE THE AO CANNOT BE MADE BEFORE THE AP PELLATE AUTHORITIES. THE JURISDICTION OF THE APPELLATE AUTH ORITIES TO ENTERTAIN SUCH A CLAIM HAS NOT BEEN NEGATED BY THE SUPREME COURT IN THIS JUDGMENT. 6.6 IN THE CASE OF CHICAGO PNEUMATIC INDIA LTD. V. DEPU TY COMMISSIONER OF INCOME TAX (2007) 15 SOT 252 (MUMBA I) WHEREIN HELD THAT IT HAS BEEN HELD THAT EVEN THOUGH THE AS SESSEE DID NOT REVISE ITS CLAIM UNDER SECTIONS 80HH AND 80-I, IN T HE REVISED RETURN, ITA NO.281/MDS/2016 14 THE IT AUTHORITIES WERE OBLIGED TO CONSIDER THE REV ISED FIGURES PLACED BEFORE THEM DURING ASSESSMENT. 6.7 IN THE CASE OF THOMAS KURIAN V. ASSISTANT COMMISSIO NER OF INCOME TAX (2007) 106 ITD 158 (COCH.) WHEREIN HELD THAT AO BEING A QUASI-JUDICIAL AUTHORITY, ONCE HAVING NOTED IN TH E ASSESSMENT ORDER THAT ASSESSEE HAD EXPORT TURNOVER, WAS DUTY BOUND T O ASK THE ASSESSEE AS TO WHY HE HAD NOT CLAIMED DEDUCTION UND ER SECTION 80HHC. THE MATTER WAS REMANDED TO THE AO TO DECIDE ASSESSEE'S CLAIM FOR DEDUCTION UNDER SECTION 80HHC. 6.8 FURTHER, JURISDICTIONAL HIGH COURT IN THE CASE OF CIT VS. MALIND LABORATORIES P. LTD IN TCA NO.878/2014 DATED 18/11/ 2014 HELD THAT THE AUTHORITIES UNDER THE ACT ARE REQUIRED TO ENSUR E THAT ONLY LEGITIMATE TAXES DUE ARE ASSESSED AND COLLECTED. WH EN THE ASSESSEE HAD GIVEN A REASONABLE EXPLANATION AND SUPPORTED IT WITH A PLEA OF BONA FIDE ERROR, THE SAME SHOULD BE ACCEPTED AND AN Y DECISION RENDERED OTHERWISE WILL HAVE THE EFFECT OF DENYING THE CORRECT TAX LIABILITY. ITA NO.281/MDS/2016 15 6.9. IN VIEW OF THE JUDGMENTS/ORDERS, THE CIT(A) AND TRI BUNAL HAVE POWER TO CONSIDER THE DEDUCTION TO ASSESSEE TO WHIC H IT WAS OTHERWISE ENTITLED EVEN THOUGH NO CLAIM WAS MADE BY THE ASSESSEE IN THE RETURN. THE ASSESSEE IF ENTITLED TO A PARTIC ULAR CLAIM, WHICH IT MISSED IN THE RETURN, MAY CLAIM DURING APPELLATE PR OCEEDINGS. THE ASSESSEE SHOULD HOWEVER ENSURE THAT ALL NECESSARY E VIDENCE IS SUBMITTED DURING ASSESSMENT PROCEEDINGS AND IS AVAI LABLE IN RECORD . 7. BEING SO, THE CLAIM OF ASSESSEE IS TO BE EXAMI NED AFRESH IN THE LIGHT OF DOCUMENT PRODUCED BY THE ASSESSEE AT THE T IME OF ASSESSMENT. ACCORDINGLY, WE REMIT THE ENTIRE ISSUE TO THE FILE OF LD. ASSESSING OFFICER FOR FRESH CONSIDERATION. 8. IN THE RESULT, THE APPEAL OF ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON FRIDAY, THE 29 TH OF APRIL,2016 AT CHENNAI. SD/- ( ' . . '# . $ ) ( N.R.S.GANESAN ) ( ) (CHANDRA POOJARI) JUDICIAL MEMBER ACCOUNTANT MEMBER ( BY SEPARATE ORDER ) CHENNAI, DATED THE 29 TH APRIL,2016 . K S SUNDARAM. ITA NO.281/MDS/2016 16 $ &*./ 0 /!* /COPY TO: 1. '# /APPELLANT 2. &''# /RESPONDENT 3. ( 1* () /CIT(A) 4. ( 1* /CIT 5. /4 &*5 /DR 6. 6 7) /GF ITA NO.281/MDS/2016 17 THE SOLE QUESTION ARISES FOR CONSIDERATION IN THIS APPEAL IS WHETHER THE ASSESSEE CAN CLAIM DEDUCTION U/S 80IB( 10) OF THE ACT IN THE COURSE OF THE ASSESSMENT PROCEEDINGS WITHOUT MAKING A CLAIM IN THE RETURN OF INCOME? THE ASSESSING OFFICER AS WELL AS THE CIT(A ) BY PLACING RELIANCE ON THE JUDGMENT OF THE APEX COURT IN GOETZE (INDIA) LTD. VS CIT, 284 ITR 323, FOUND THAT THE ASSESSEE CANNOT CLAIM DEDUCTIO N U/S 80IB(10) OTHERWISE THAN BY FILING A REVISED RETURN. 2. I HAVE CAREFULLY GONE THROUGH THE JUDGMENT OF THE A PEX COURT IN GOETZE (INDIA) LTD.(SUPRA). THE APEX COURT, AFTER C ONSIDERING THE PROVISIONS OF SEC. 254 OF THE ACT, FOUND THAT THE I SSUE ADJUDICATED BY THE APEX COURT IS LIMITED TO THE POWER OF THE ASSESSING AUTHORITY AND DOES NOT IMPINGE ON THE POWER OF THE INCOME TAX APPELLATE TRIB UNAL U/S 254 OF THE ACT. IN FACT, THE APEX COURT HAS OBSERVED AS F OLLOWS: THIS APPELLANTS APPEAL BEFORE THE COMMISSIONER O F INCOME- TAX(APPEALS) WAS ALLOWED. HOWEVER, THE ORDER OF TH E FURTHER APPEAL OF THE DEPARTMENT BEFORE THE INCOME-TAX APPE LLATE TRIBUNAL WAS ALLOWED. THE APPELLANT HAS APPROACHED THE COURT AND HAS SUBMITTED THAT THE TRIBUNAL WAS WRONG IN UPHOLD ING THE ASSESSING OFFICERS ORDER. HE HAS RELIED UPON THE DECISION OF THIS COURT IN NATIONAL THERMAL POWER COMPANY LTD. VS CIT [1998] 229 ITR 383, TO CONTEND THAT IT WAS OPEN TO THE ASSESS EE TO RAISE THE POINTS OF LAW EVEN BEFORE THE APPELLATE TRIBUNAL. ITA NO.281/MDS/2016 18 THE DECISION IN QUESTION IS THAT THE POWER OF TH E TRIBUNAL UNDER SECTION 254 OF THE INCOME-TAX ACT, 1961 IS TO ENTER TAIN FOR THE FIRST TIME A POINT OF LAW PROVIDED THE FACT ON THE BASIS OF WHICH THE ISSUE OF LAW CAN BE RAISED BEFORE THE TRIBUNAL. THE DECISION DOES NOT IN ANY WAY RELATE TO THE POWER OF THE ASSESS ING OFFICER TO ENTERTAIN A CLAIM FOR DEDUCTION OTHERWISE THAN B Y FILING A REVISED RETURN. IN THE CIRCUMSTANCES OF THE CASE, WE DISMISS THE CIVIL APPEAL. HOWEVER, WE MAKE IT CLEAR THAT THE I SSUE IN THIS CASE IS LIMITED TO THE POWER OF THE ASSESSING AUTHORITY A ND DOES NOT IMPINGE ON THE POWER OF THE INCOME-TAX APPELLATE TR IBUNAL UNDER SECTION 254 OF THE INCOME-TAX ACT, 1961. THERE SHA LL BE NO ORDER AS TO COSTS. 3. I HAVE ALSO CAREFULLY GONE THROUGH THE JUDGMENT OF THE APEX COURT IN CIT VS SHELLY PRODUCTS AND ANOTHER, 261 ITR 367. THE APEX COURT, AFTER CONSIDERING THE SCHEME OF SELF-ASSESSM ENT TAX AND THE POWER OF THE ASSESSING OFFICER, FOUND THAT IF THE A SSESSEE BY MISTAKE OR INADVERTENCE OR ON ACCOUNT OF IGNORANCE, INCLUDE D IN HIS INCOME ANY AMOUNT WHICH IS EXEMPTED FROM PAYMENT OF TAX OR IS NOT INCOME WITHIN THE CONTEMPLATION OF LAW, HE MAY OTHERWISE BRING THI S TO THE NOTICE OF THE ASSESSING AUTHORITY, WHICH IF SATISFIED, MAY GRA NT HIM RELIEF AND REFUND THE TAX PAID IN EXCESS, IF ANY. IN FACT, TH E APEX COURT HAS OBSERVED AS FOLLOWS: ITA NO.281/MDS/2016 19 WE CANNOT LOSE SIGHT OF THE FACT THAT THE FAILURE OR INABILITY OF THE REVENUE TO FRAME A FRESH ASSESSMENT SHOULD NOT PLACE THE ASSESSEE IN A MORE DISADVANTAGEOUS POSITION THAN IN WHAT HE WOULD HAVE BEEN IF A FRESH ASSESSMENT WAS MADE. IN A CAS E WHERE AN ASSESSEE CHOOSES TO DEPOSIT BY WAY OF ABUNDANT CAUTIO N ADVANCE TAX OR SELF-ASSESSMENT TAX WHICH IS IN EXCESS OF HI S LIABILITY ON THE BASIS OF THE RETURN FURNISHED OR THERE IS ANY ARITHM ETICAL ERROR OR INACCURACY, IT IS OPEN TO HIM TO CLAIM REFUND OF THE EXCESS TAX PAID IN THE COURSE OF THE ASSESSMENT PROCEEDING. HE CAN CERTAINLY MAKE SUCH A CLAIM ALSO BEFORE THE CONCERNED AUTHORI TY CALCULATING THE REFUND. SIMILARLY, IF HE HAS BY MISTAKE OR INADV ERTENCE OR ON ACCOUNT OF IGNORANCE, INCLUDE IN HIS INCOME ANY AMOU NT WHICH IS EXEMPTED FROM PAYMENT OF INCOME-TAX, OR IS NOT INCOM E WITHIN THE CONTEMPLATION OF LAW, HE MAY LIKEWISE BRING THIS TO THE NOTICE OF THE ASSESSING AUTHORITY WHICH IF SATISFIED, MAY GRANT HIM RELIEF AND REFUND THE TAX PAID IN EXCESS, IF ANY. SUCH MAT TERS CAN BE BROUGHT TO THE NOTICE OF THE CONCERNED AUTHORITY IN A CASE WHERE REFUND IS DUE AND PAYABLE, AND THE AUTHORITY CONCERNE D, ON BEING SATISFIED, SHALL GRANT APPROPRIATE RELIEF. IN CASE S GOVERNED BY SECTION 240 OF THE ACT, AN OBLIGATION IS CAST UPON THE REVENUE TO REFUND THE AMOUNT TO THE ASSESSEE WITHOUT HIS HAVI NG TO MAKE ANY CLAIM IN THAT BEHALF. IN APPROPRIATE CASES THEREFO RE, IT IS OPEN TO THE ASSESSEE TO BRING FACTS TO THE NOTICE OF THE C ONCERNED AUTHORITY ON THE BASIS OF THE RETURN FURNISHED, WHIC H MAY HAVE A BEARING ON THE QUANTUM OF THE REFUND, SUCH AS THOSE THE ASSESSEE COULD HAVE URGED UNDER SECTION 237 OF THE ACT. THE CONCERNED AUTHORITY, FOR THE LIMITED PURPOSE OF CALCULATING T HE AMOUNT TO BE REFUNDED UNDER SECTION 240 OF THE ACT, MAY TAKE ALL SUCH FACTS INTO CONSIDERATION AND CALCULATE THE AMOUNT TO BE R EFUNDED. SO VIEWED, AN ASSESSEE WILL NOT BE PLACED IN A MORE D ISADVANTAGEOUS POSITION THAT WHAT HE WOULD HAVE BEEN, HAD AN ASSES SMENT BEEN MADE IN ACCORDANCE WITH LAW. 4. IN VIEW OF THESE TWO JUDGMENTS, IT IS OBVIOUS THAT TH E POWER OF THE TRIBUNAL TO ADMIT NEW GROUND IS NOT CURTAILED. UNDER SEC. 254 OF THE ITA NO.281/MDS/2016 20 ACT, THIS TRIBUNAL IS EMPOWERED TO ENTERTAIN FOR THE FIRST TIME A POINT OF LAW. AS CLARIFIED BY THE APEX COURT ITSELF, THE JUD GMENT IN GOETZE (INDIA) LTD.(SUPRA) DOES NOT IMPINGE ON THE POWER OF THE INC OME TAX APPELLATE TRIBUNAL U/S 254 OF THE ACT. THEREFORE, THIS TRIBUN AL IS OF THE CONSIDERED OPINION THAT THE CLAIM MADE BY THE ASSESSEE U/S 8 0IB(10) OF THE ACT NEEDS TO BE CONSIDERED. ACCORDINGLY, THE ORDERS OF THE LOWER AUTHORITIES ARE SET ASIDE AND THE ISSUE OF DEDUCTION CLAIMED BY THE ASSESSEE U/S 80IB(10) OF THE ACT IS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL CONSIDER THE ISSUE ON ME RIT AND THEREAFTER DECIDE THE SAME IN ACCORDANCE WITH LAW AFTER GIVING A REASONABLE OPPORTUNITY TO THE ASSESSEE. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWE D FOR STATISTICAL PURPOSES. SD/- ( ' . . '# . $ ) ) (N.R.S. GANESAN) & #' / JUDICIAL MEMBER 8 ) / CHENNAI 9 / DATED:29 TH APRIL, 2016 RD