ITO, Bhiwani V. M/s Vaish Model Primary School Education, Bhiwani

ITA 338/DEL/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 7838 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 3 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-05-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: H
• Next Hearing Date: 18-04-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 17-01-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M K JAIN
• Assessee Lawyers: R P BASIA
• Keywords: Opportunity of being heard; Right to appeal; Revised return
• Section: 12A; 54; 12; 154; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH H, NEW DELHI BEFORE SHRI S. V. MEHROTRA, ACCOUNTANT MEMBER AND SMT. BEENA PILLAI, JUDICIAL MEMBER I.T.A. NO.338/DEL/2014 (ASSESSMENT YEAR 2010-11) ITO, WARD 1, VS. VAISH MODEL PRIMARY BHIWANI SCHOOL EDUCATION SOCIETY LOHARU ROAD, BHIWANI-127021 GIR / PAN :AAAAV4102H (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI M K JAIN, SR. DR RESPONDENT BY : SHRI R. P. BASIA, CA DATE OF HEARING: 18.04.2016 DATE OF PRONOUNCEMENT: 03.05.2016 ORDER PER BEENA PILLAI, JM: THE PRESENT APPEAL HAS BEEN FILED BY THE REVENUE AGAINST THE ORDER OF LD. CIT(A) ROHTAK VIE ORDER DA TED 23.10.2013 FOR THE ASSESSMENT YEAR 2010-11 ON THE FOLLOWING GROUNDS OF APPEAL: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN CANCELLING ORDER OF THE A.O. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, CIT(A) HAS ERRED IN NOT APPRECIATING THE POSI TION THAT ORDER OF THE AO HAS BEEN PASSED BY EXERCISING BONA-FIDE LEGAL POWERS VESTED IN THE A.O. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, CIT(A) HAS ERRED IN NOT APPRECIATING THE POSI TION THAT THE ASSESSEE DID NOT MAKE CLAIM OF EXEMPTION 2 I.T.A.NO.338/DEL/2014 U/S 11 IN THE RETURN OF INCOME. NOR SUCH CLAIM WAS MADE BY WAY OF REVISED RETURN OF INCOME INSPITE OF THE FACT THAT ASSESSEE HAD AMPLE TIME AND OPPORTUNITY A T ITS DISPOSAL FOR DOING SO. 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, CLT(A) HAS ERRED IN NOT APPRECIATING THE POSI TION THAT INSPITE OF HAVING AMPLE TIME AND OPPORTUNITY F OR MAKING CLAIM OF EXEMPTION U/S 11 DURING ASSESSMENT PROCEEDINGS, THE ASSESSEE DID NOT MAKE ANY SUCH CLAIM BEFORE AO. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN ASSUMING POWERS O F THE AO AND NOT APPRECIATING CORRECT POSITION OF LAW LAID DOWN BY HON'BLE SUPREME COURT OF INDIA IN M/S GOETZE (INDIA) LTD. VS. CIT (2006) 284 ITR 0324 THA T AO CANNOT ENTERTAIN A CLAIM MADE OTHERWISE THAN BY WAY OF REVISED RETURN OF INCOME. 6. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN NOT APPRECIATING THE CORRECT POSITION OF LAW THAT THE FRESH CLAIM OF EXEMPTION UNDER SECTION 11 OF THE INCOME-TAX ACT, 1961 CANNOT BE ENTERTAINED AT APPEAL STAGE AS THE A O DID NOT HAVE ANY OPPORTUNITY TO CARRY OUT DUE PROCE SS OF EXAMINATION AND ADJUDICATION REGARDING CLAIM OF EXEMPTION U/S 11 OF THE I.T. ACT INCLUDING EXAMINAT ION OF CONDITIONS OF ELIGIBILITY FOR AVAILING THE EXEMP TION U/S 11 OF THE I.T. ACT, 1961. 7. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, CIT(A) HAS ERRED IN NOT APPRECIATING CORRECT POSITION OF LAW THAT SUCH CLAIM U/S 11 CANNOT BE ADJUDICATED AT APPEAL STAGE AS THE CLAIM IS NOT BOR NE OUT FROM FACTS ALREADY ON RECORD. 8. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, CIT(A) HAS ERRED IN NOT ALLOWING OPPORTUNITY OF BEING HEARD TO THE AO. 2. THE BRIEF FACTS OF THE CASE AS RECORDED BY LD. C IT(A) ARE AS UNDER:- 3 I.T.A.NO.338/DEL/2014 2.1 VAISH MODEL PRIMARY SCHOOL IS RUN BY VAISH MOD EL PRIMARY SCHOOL EDUCATIONAL SOCIETY, LAHARU ROAD, BHIWANI A SOCIETY REGISTERED FROM DISTT. REGISTRAR FIRMS & SOCIETIES UNDER SOCIETY REGISTRATION ACT, 1860. T HE ASSESSEE HAD FILED HIS RETURN OF INCOME ON DT. 27.0 9.2010 DECLARING INCOME OF RS. NIL AS PER DETAILS MENTIONE D HERE BELOW:- EXCESS OF INCOME OVER EXPENDITURE FROM RUNNING SCHOOL UNDER THE NAME OF VAISH MODEL PRIMARY SCHOOL, BHIWANI RS. 41,02,736.00 LESS: - EXEMPTION U/S 10(23C)(VI) RS. 41,02,736.0 0 NIL 2.2 THE ASSESSEE SOCIETY WAS ALSO ENTITLED TO DEDUC TIONS UNDER SECTION 11 AND 12 OF THE, INCOME TAX ACT, 196 1 IN VIEW OF THE REGISTRATION GRANTED UNDER SECTION 12A BY COMMISSIONER OF INCOME TAX, HISSAR W.E.F. FINANCIAL YEAR 2009-10. 2.3 THE SAID RETURN OF INCOME HAD BEEN PROCESSED BY ISSUING NOTICE UNDER SECTION 143(2) DATED 26.09.201 1. THE ASSESSING AUTHORITY TREATED THE BUILDING FUND AND BUILDING MAINTENANCE FUND TOTAL OF RS. 28,37,500/ - AS REVENUE RECEIPTS AND ADDED TO THE INCOME OF THE ASS ESSEE. 2.4 THE ASSESSING OFFICER DISALLOWED THE DEPRECIATI ON OF RS.46,825/- CLAIMED UNDER THE PRETEXT THAT ON PURCH ASE OF SHISHAM WOOD OF RS. 4,68,246/- HAS NOT BEEN PUT TO USE TILL THE CLOSING OF THE YEAR. 2.5 THE ASSESSING OFFICER ALSO DISALLOWED VOUCHERS FOR A TOTAL SUM OF RS130131/- AS RELATED TO VAISH SEN SEC . SCHOOL AND NOT FOUND THEM GENUINE AS FUND OF THE ASSESSEE SOCIETY ARE NOT UTILIZED FOR THE SOCIETY I TSELF. 4 I.T.A.NO.338/DEL/2014 3. AGGRIEVED BY THE ORDER OF THE ASSESSING OFFICER, THE ASSESSEE FILED APPEAL BEFORE LD. CIT(A). 3.1 BEFORE LD. CIT(A), ASSESSEE TOOK UP AN ADDITION AL GROUND OF ALLOWABILITY OF CLAIM OF DEDUCTION U/S 11 & 12 OF THE I.T. ACT, 1961, WHICH WAS ORIGINALLY NOT CONSID ERED AT THE TIME OF FILLING OF RETURN, IN VIEW OF THE FACT THAT ITS REGISTRATION U/S 12A WAS RECEIVED MUCH AFTER THE RE TURN OF INCOME WAS FILED. 3.2 IT WAS ARGUED THAT THE AMOUNT OF TAX INVOLVED A ND NUMBER OF ENTRIES IN THE RETURN OF TDS ARE AS UNDER : I) ASSESSEE HAD FILED INCOME TAX RETURN CLAIMING EXEMPTION U/S 10(23C)(VI) WHEN THE APPLICATION FOR GRANT OF APPROVAL OF EXEMPTION WAS PENDING BEFORE LD. CCI T, PANCHKULA. AS THE SOCIETY IS FULFILLING ALL THE TE RMS AND CONDITIONS OF SECTION 10(23C)(VI) OF INCOME TAX ACT , 1961, THEREFORE ASSESSEE IS ELIGIBLE TO CLAIM THE SAID EX EMPTION UNDER SECTION 10(23C)(VI), WHICH WRONGLY DENIED BY THE LD. ASSESSING OFFICER'. II) FROM THE AIMS AND OBJECTS-RUNNING FROM 1 TO 15 IT CAN BE OBSERVED THAT THE SOLE AIM OF THE ASSESSEE I S EDUCATION AND THUS CHARITABLE IN NATURE. THE ASSESS ING OFFICER FAILED TO CONSIDER THE SAME. 3.3 ASSESSEE ARGUED BEFORE LD. CIT(A) THAT THE APPLICATION THAT APPLICATIONS FOR APPROVAL OF EXEMP TION WAS DENIED BY C.C.I.T PANCHKULA BUT LATER ON HON'BL E HIGH COURT PUNJAB & HARYANA HAS PASSED AN ORDER DAT ED 03.10.2011 IN ASSESSEES CASE ALLOWING OWN GRANT O F 5 I.T.A.NO.338/DEL/2014 APPROVAL UNDER SECTION 10(23C)(VI) OF INCOME TAX AC T, 1961. HON'BLE HIGH COURT PUNJAB & HARYANA ALLOWED W RIT PETITION FILED BY THE ASSESSEE AND IMPUGNED ORDERS DECLINING THE APPLICATION FOR EXEMPTION UNDER SECTI ON 10(23C) (VI) OF THE ACT QUASHING THE CLAIM OF EXEMP TION UNDER SECTION 10(23C)(VI), IS JUSTIFIED. 3.4 ASSESSEE HAD SUBMITTED BEFORE LD. CIT(A) THAT ASSESSEE SOCIETY IS ENTITLED TO GET DEDUCTION U/S 1 1 AND 12 OF THE I.T. ACT, 1961. SINCE THE ASSESSEE WAS REGI STERED U/S 12A VIDE LETTER DATED 23.09.2010 W.E.F. 30.03.2 010 ISSUED BY LD. CIT HIMSELF, THE SAME WAS APPLICABLE FOR THE ASSESSMENT YEAR 2010-11. LD. A.R. HAD SUBMITTED TH AT AT THE TIME OF FILING OF RETURN OF INCOME ON 27.09.201 0 FOR THE ASSESSMENT YEAR UNDER CONSIDERATION, THE REGISTRATI ON LETTER U/S 12A OF THE I.T. ACT, 1961 WAS PENDING AW AITING REGISTRATION UNDER THE REGISTRATION LETTER RECEIVED ON 30.09.2010. SO, AT THE TIME OF FILING OF RETURN OF INCOME, THE APPELLATE AUTHORITY WAS NOT AWARE THAT THE SOCI ETY WAS ELIGIBLE FOR DEDUCTION U/S 11 & 12 OF THE I.T. ACT, 1961. THUS, IT WAS CONTENDED BY THE ASSESSEE THAT DEDUCTI ON U/S 11 & 12 OF THE I.T. ACT, 1961, IN THE ABSENCE O F EXEMPTION LETTER COULD NOT BE CLAIMED. LD. A.R. RE LIED UPON THE FOLLOWING DECISIONS:- I) CIT VS PRUTHVI BROKERS & SHAREHOLDERS (P) LTD. 252 CTR 152 (BOM.) II) JUTE CORPORATION OF INDIA LTD. VS CIT & ANR. 88 CTR 66 (S.C.) 6 I.T.A.NO.338/DEL/2014 III) KEDARNATH JUTE MANUFACTURING COMPANY LTD. VS CIT 82 ITR 363. IV) CIT VS JAI PARABOLIC SPRINGS LTD. 6 DTR 233 (DEL.) (DELHI H.C.). 3.4 LD. CIT(A) AFTER CONSIDERING THE DECISIONS AND JUDGEMENTS RELIED UPON BY THE LD. A.R., HELD AS UND ER:- 4.3 IT IS INDEED A QUESTION OF EXERCISE OF DISCRET ION WHETHER OR NOT TO ALLOW AN ASSESSEE TO RAISE A CLAI M WHICH WAS NOT RAISED WHEN THE RETURN WAS FILED OR T HE ASSESSMENT ORDER WAS MADE. AS HELD BY SUPREME COURT THERE MAY BE SEVERAL FACTORS JUSTIFYING THE RAISING OF A NEW PLEA IN THE APPEAL AND EACH CASE MUST BE CONSIDERED ON ITS OWN ACTS. HOWEVER, SUCH CASES INCLUDES THOSE WERE THE GROUNDS THOUGH AVAILABLE WHEN THE RETURN WAS FILED OR THE ASSESSME NT ORDER WAS MADE, WAS NOT TAKEN OR RAISED FOR THE REASON WHICH THE APPELLANT AUTHORITY MAY CONSIDERED VALID. IN OTHER WORDS, THE JURISDICTION OF APPELLAN T AUTHORITIES TO CONSIDERED A FRESH OR NEW GROUND OR CLAIM IS NOT RESTRICTED TO CASES WERE SUCH A GROUND DID NOT EXISTS WHEN THE RETURN WAS FILED AND THE ASSESSMENT ORDER WAS MADE. 4.4 IN VIEW OF THE FACTS DISCUSSED ABOVE AND DECISI ONS BY VARIOUS COURTS AND THE EXPLANATION AND THE PRODUCTION OF LETTER OF GRANTING REGISTRATION UNDER SECTION 12A WHICH SUBSEQUENT TO THE FILING OF RETUR N OF INCOME, I HOLD THAT THE ASSESSEE SOCIETY WAS ENTITL ED TO CLAIM DEDUCTION UNDER SECTION 11 & 12 WHICH I ALLOW BASED ON THE ADDITIONAL CLAIM NOW MADE BY THE ASSESSEE SOCIETY. THE APPEAL IS ALLOWED IN FAVOUR O F ASSESSEE SOCIETY ON THIS GROUND. 4. AGGRIEVED BY THE ORDER OF LD. CIT(A), THE REVENU E IS IN APPEAL BEFORE US NOW. 4.1 LD. D.R. SUBMITTED BEFORE THE BENCH THAT THE FI RST APPELLATE AUTHORITY ERRED IN NOT APPRECIATING THE P OSITION 7 I.T.A.NO.338/DEL/2014 THAT THE ASSESSEE DID NOT MAKE THE CLAIM OF EXEMPTI ON U/S 11 BEFORE THE ASSESSING OFFICER AND THEREFORE, THERE WAS NO OPPORTUNITY THAT WAS GRANTED TO THE LD. ASSE SSING OFFICER TO VERIFY SUCH CLAIM. HE SUBMITTED THAT LD . CIT(A) HAS ERRED IN ASSUMING THE POWERS OF THE ASSESSING O FFICER WITHOUT APPRECIATING THE CORRECT POSITION OF LAW AS LAID DOWN BY HON'BLE SUPREME COURT IN THE CASE OF M/S. GOETZE (INDI) LTD. VS CIT REPORTED IN 284 ITR 324. HE VEHEMENTLY ARGUED THAT THE ASSESSING OFFICER COULD NOT ENTERTAIN THE CLAIM MADE OTHERWISE THEN BY WAY OF R EVISED RETURN AND THEREFORE THE CLAIM MADE BY THE ASSESSEE U/S 11 & 12 OF THE ACT. ALMOST IT IS A FRESH CLAIM WHI CH COULD NOT BE ENTERTAINED AT THE FIRST APPELLATE STAGE AS THE ASSESSING OFFICER DID NOT HAVE ANY OPPORTUNITY TO C ARRY OUT DUE PROCESS OF EXAMINATION AND ADJUDICATION REGARDING THE CLAIM OF EXEMPTION U/S 11 OF THE ACT INCLUDING THE EXAMINATION OF CONDITION OF ELIGIBILI TY FOR AVAILING THE EXEMPTION U/S 11 OF THE ACT. 4.2 ON THE CONTRARY, LD. A.R. REFERRED TO SECTION 1 2A(1) PROVISO (II) WHICH READS AS UNDER: 12A. (1) THE PROVISIONS OF SECTION 11 AND SECTION N12 SH ALL NOT APPLY IN RELATION TO THE INCOME OF ANY TRUST OR INSTITUTION UNLESS THE FOLLOWING CONDITIONS ARE FUL FILLED, NAMELY:- PROVIDED THAT WHERE AN APPLICATION FOR REGISTRATION OF THE TRUST OR INSTITUTION IS MADE AFTER THE EXPIRY O F THE PERIOD AFORESAID, THE PROVISIONS OF SECTION 11 AND 12 SHALL APPLY IN RELATION TO THE INCOME OF SUCH TRUST OR INSTITUTION,- (I) FROM THE DATE OF THE CREATION OF THE TRUST 8 I.T.A.NO.338/DEL/2014 OR THE ESTABLISHMENT OF THE INSTITUTION IF THE COMMISSIONER IS, FOR REASONS TO BE RECORDED IN WRIT ING, SATISFIED THAT HE PERSON ION RECEIPT OF THE INCOME WAS PREVENTED FROM MAKING THE APPLICATION BEFORE THE EXPIRY OF THE PERIOD AFORESAID FOR SUFFICIENT REASO NS; (2) WHERE AN APPLICATION AHS BEEN MADE ON OR AFTER THE 1 ST DAY OF JUNE, 2007, THE PROVISIONS OF SECTION 11 AND 12 SHALL APPLY IN RELATION TO THE INCOME OF SUC H TRUST OR INSTITUTION FROM THE ASSESSMENT YEAR IMMEDIATELY FOLLOWING THE FINANCIAL YEAR IN WHICH SUCH APPLICATION IS MADE. 4.3 LD. A.R. SUBMITTED IN ITS APPLICATION FOR EXEMP TION U/S 11 & 12 OF THE ACT THAT THE LETTER FOR EXEMPTIO N WAS ISSUED ON 30.03.2010 AND THE SAME WAS APPLICABLE FO R THE ASSESSMENT YEAR 2010-11. LD. A.R. FURTHER SUBMITTE D THAT THE POWERS OF COMMISSIONER (APPEALS) U/S 2521( 1)(A) IS SYNONYMOUS WITH THE POWERS OF THE TRIBUNAL U/S 1 54 OF THE ACT. HE SUBMITTED THAT THE DECISION RELIED UPO N BY LD. D.R. IN THE CASE OF GOETZE INDIA LTD. VS CIT (S UPRA), THE HON'BLE SUPREME COURT HAD DECIDED THE ISSUE REL ATING TO THE POWERS OF ASSESSING OFFICER FOR ALLOWING A P ARTICULAR CLAIM. HE SUBMITTED THAT THE ISSUE BEFORE THIS BEN CH FOR THE YEAR UNDER CONSIDERATION IN THE ASSESSEES CASE IS DIFFERENT VIS A VIS THE ISSUE DEALT BY HON'BLE SUPR EME COURT IN GOETZE INDIA LTD. VS CIT (SUPRA). LD. A.R . RELIED UPON THE DECISION OF HON'BLE JURISDICTIONAL HIGH CO URT IN THE CASE OF CIT VS SAM GLOBAL SECURITIES LTD. IN I. T.A.NO. 214/2013 WHEREIN THE HON'BLE HIGH COURT HELD AS UND ER: THE POWER OF THE TRIBUNAL IN DEALING WITH APPEALS IS THUS EXPRESSED IN THE WIDEST POSSIBLE TERMS. THE 9 I.T.A.NO.338/DEL/2014 PURPOSE OF THE ASSESSMENT PROCEEDINGS BEFORE THE TAXING AUTHORIZES IS TO ASSESS CORRECTLY THE TAX LI ABILITY OF AN ASSESSEE IN ACCORDANCE WITH LAW. WE DO NOT SEE ANY REASON TO RESTRICT THE POWER OF THE TRIBUNA L UNDER SECTION 254 ONLY TO DECIDE THE GROUNDS WHICH ARISE FROM THE ORDER OF THE CIT(A). BOTH THE ASSES SEE AS WELL AS THE DEPARTMENT HAVE A RIGHT TO FILE AN APPEAL / CROSS OBJECTIONS BEFORE THE TRIBUNAL. WE F AIL TO SEE WHY THE TRIBUNAL SHOULD BE PREVENTED FROM CONSIDERING QUESTIONS OF LAW ARISING IN ASSESSMENT PROCEEDINGS ALTHOUGH NOT RAISED EARLIER. 5. WE HAVE PERUSED THE ORDERS PASSED BY AUTHORITIES BELOW, THE ARGUMENTS ADVANCED BY BOTH THE PARTIES A ND THE JUDGEMENTS RELIED UPON BY THEM. THE ISSUE BEFO RE US FOR CONSIDERATION IS, WHETHER THE LD. CIT(A) WAS R IGHT IN ALLOWING THE CLAIM OF DEDUCTION RAISED BY THE ASSES SEE BY WAY OF AN ADDITIONAL GROUND U/S 11 & 12 OF THE ACT. WHEN NO SUCH CLAIM WAS MADE BY THE ASSESSEE IN ORIG INAL RETURN OF INCOME FILED ON 27.09.2010, IT IS CLEAR F ROM THE ABOVE STATED FACTS THERE IS NO DISPUTE THAT THE ASS ESSEE HAS BEEN GRANTED THE CERTIFICATE U/S 11 & 12 OF THE ACT ON 30.03.2010 WHICH WAS EFFECTIVE FOR THE ASSESSMENT Y EAR 2010-11 (THE YEAR UNDER CONSIDERATION BEFORE US). SECTION 251(1)(A) GIVES COTERMINOUS POWERS TO THE COMMISSIO NER (APPEALS) IN AN APPEAL AGAINST THE ASSESSMENT ORDER TO CONFIRM, REDUCE, ENHANCE OR ANNUL THE ASSESSMENT SO MADE. HON'BLE SUPREME COURT IN THE CASE OF JUTE CORPORATION OF INDIA LTD. VS CIT 187 ITR 688 HAS HE LD AS UNDER: 10 I.T.A.NO.338/DEL/2014 AN APPELLATE AUTHORITY HAS ALL THE POWERS WHICH TH E ORIGINAL AUTHORITY MAY HAVE IN DECIDING THE QUESTIO N BEFORE IT SUBJECT TO THE RESTRICTIONS OR LIMITATION S, IF ANY, PRESCRIBED BY THE STATUTORY PROVISIONS IN THE ABSENCE OF ANY STATUTORY PROVISION, THE APPELLATE AUTHORITY IS VESTED WITH ALL THE PLENARY POWERS WHI CH THE SUBORDINATE AUTHORITY MAY HAVE IN THE MATTER. THERE IS NO GOOD REASON TO JUSTIFY CURTAILMENT OF T HE POWER OF THE AAC IN ENTERTAINING AN ADDITIONAL GROU ND RAISED BY THE ASSESSEE IN SEEKING MODIFICATION OF T HE ORDER OF ASSESSMENT PASSED BY THE ITO. THIS COURT FURTHER OBSERVED THAT THERE MAY BE SEVERAL FACTORS JUSTIFYING THE RAISING OF A NEW PLEA IN AN APPEAL A ND EACH CASE HAS TO BE CONSIDERED ON ITS OWN FACTS. TH E AAC MUST BE SATISFIED THAT THE GROUND RAISED WAS BONA FIDE AND THAT THE SAME COULD NOT HAVE BEEN RAISED EARLIER FOR GOOD REASONS. THE AAC SHOULD EXERCISE HIS DISCRETION IN PERMITTING OR NOT PERMIT TING THE ASSESSEE TO RAISE AN ADDITIONAL GROUND IN ACCORDANCE WITH LAW AND REASON. THE SAME OBSERVATIONS WOULD APPLY TO APPEALS BEFORE THE TRIBUNAL ALSO.' 5.1 THE DECISION IN THE CASE OF GOETZE INDIA LTD. V S CIT (SUPRA) HAS BEEN DISTINGUISHED IN THE CASE OF JAI P ARABOLIC SPRINGS LTD. (SUPRA) AS UNDER: IN GOETZE (INDIA) LTD. V S. ERR [2006] 284 ITR 323 (SC) WHEREIN DEDUCTION CLAIMED BY WAY OF A LETTER BEFORE THE 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 RETURN. APPEAL TO THE SUPREME COURT, AS THE DECISIO N WAS UPHELD BY THE TRIBUNAL AND THE HIGH COURT, WAS DISMISSED MAKING CLEAR THAT THE DECISION WAS LIMITE D TO THE POWER OF THE ASSESSING AUTHORITY TO ENTERTAI N CLAIM FOR DEDUCTION OTHERWISE THAN BY A REVISED RETURN, AND DID NOT IMPINGE ON THE POWER OF THE TRIBUNAL.' 11 I.T.A.NO.338/DEL/2014 5.2 HONBLE JURISDICTIONAL HIGH COURT IN THE CASE O F CIT VS SAM GLOBAL SECURITIES LTD (SUPRA) HAS OBSERVED T HAT THE DECISION IN GOETZE INDIA LTD. WAS AGAIN RELIED UPON BY THE REVENUE IN CIT VS ZINDAL SAW PIPES LTD. 328 ITR 338 (DEL.). HOWEVER, HONBLE DELHI HIGH COURT OBSERVED THAT THE CONTENTION WAS NOT ACCEPTED BY THE HONBLE COUR T OBSERVING THAT THE TRIBUNAL JURISDICTION IS COMPREH ENSIVE AND ASSIMILATES ISSUES IN THE APPEAL FROM THE ORDER OF CIT(A) AND THE TRIBUNAL HAS THE DISCRETION TO ALLOW A NEW GROUND TO BE RAISED. THUS, IN THE PRESENT CASE IN HAND BEFORE US, THE ADDITIONAL GROUND HAS BEEN RAISED BE FORE THE FIRST APPELLATE AUTHORITY REGARDING THE CLAIM O F DEDUCTION U/S 11 & 12 FOR THE ACT FOR THE FIRST TIM E. HOWEVER, THIS WAS SO BECAUSE THE CLAIM OF DEDUCTION U/S 11 & 12 WAS NOT MADE IN THE ORIGINAL RETURN OF INCO ME FILED AND, THEREFORE, THE CLAIM WAS NOT THERE BEFOR E THE ASSESSING OFFICER. HON'BLE SUPREME COURT IN THE CA SE OF GOETZE INDIA LTD. (SUPRA) HOLDS THAT IF THE ASSESSI NG OFFICER LOOKS INTO A PARTICULAR CLAIM ONCE THE ASSE SSEE HAS FILED ORIGINAL RETURN OF INCOME IT IS POSSIBLE ONLY BY WAY OF FILING A REVISED RETURN. THERE WAS NO CLAIM UNDER L AW FROM THE ASSESSEE TO FILE THE REVISED RETURN TO RAISE TH E CLAIM OF DEDUCTION U/S 11 & 12 BEFORE THE FIRST APPELLATE AU THORITY WHO HAS COTERMINOUS POWERS WITH THE ASSESSING OFFIC ER. HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS PRU THVI BROKERS AND SHARE HOLDERS (P) LTD., (SUPRA) HAS HEL D THAT THE ASSESSEE IS ENTITLED TO RAISE ADDITIONAL GROUND NOT 12 I.T.A.NO.338/DEL/2014 MERELY IN TERMS OF LEGAL SUBMISSIONS BUT ALSO AN ADDITIONAL CLAIM NOT MADE IN THE RETURN OF INCOME INADVERTENTLY, CANNOT BE FAULTED FOR MORE THAN ONE REASON. IN VIEW OF ABOVE DISCUSSION, THE RATIO LAID DOWN BY HON'BLE SUPREME COURT IN VARIOUS JUDGEMENTS AND HON'BLE HIG H COURTS, WE ARE INCLINED TO DISMISS THE GROUNDS RAIS ED BY THE REVENUE. 6. IN THE RESULT, APPEAL FILED BY THE REVENUE STAND S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 03 RD MAY, 2016. SD./- SD./- (S. V. MEHROTRA) (BEENA PILLAI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATE:03.05.2016 SP. COPY FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT (A)-, NEW DELHI. 5. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DELHI. TRUE COPY. BY ORDER (ITAT, NEW DELHI) 13 I.T.A.NO.338/DEL/2014 S.NO. DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON SR. PS/PS 2 DRAFT PLACED BEFORE AUTHOR 3/5 SR. PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/AM 5 APPROVED DRAFT COMES TO THE SR. PS/PS 3/5/16 SR. PS/PS 6 KEPT FOR PRONOUNCEMENT 3/5 SR. PS/PS 7 FILE SENT TO BENCH CLERK 4/5 SR. PS/PS 8 DATE ON WHICH THE FILE GOES TO HEAD CLERK 9 DATE ON WHICH FILE GOES TO A.R. 10 DATE OF DISPATCH OF ORDER