DATTA PRASAD SAHAKARI PATSANSTHA LTD, MUMBAI V. INCOME TAX OFFICER -26(3)(2), MUMBAI , MUMBAI

ITA 6029/MUM/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 6789 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 11 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-09-2021
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2011-2012
• Appeal Filed On: 23-09-2019
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SMITA VERMA; SANJAY SETHI
• Assessee Lawyers: RAJENDRA KANDREKAR
• Keywords: Retrospective amendment; Revised return; Co-operative Credit Society
• Section: 10AA; 10B; 143(1); 80P; 251; 264; 113; 13; 6; 154

Judgement Text

1 ITA 6029/MUM/2019 IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY (JUDICIAL MEMBER) AND SHRI RAJESH KUMAR (ACCOUNTANT MEMBER) I.T.A NO.6029/MUM/2019 (ASSESSMENT YEAR : 2011-12) SHREE DATTA PRASAD SAHAKARI PATSANSTHA LTD, PATISHAKAR BHAVA C-11, BANDRA KURLA COMPLEX, BANDRA (E), MUMBAI-400 051 PAN : AABAS6993E VS INCOME-TAX OFFICER-26(3)(2) MUMBAI APPELLANT RESPONDENT APPELLANT BY SHRI.RAJENDRA KANDREKAR, (AR) RESPONDENT BY MS. SMITA VERMA AND SHRI SANJAY SETHI, (DR) DATE OF HEARING 06-08-2021 DATE OF PRONOUNCEMENT -09-2021 O R D E R PER : SAKTIJIT DEY (JM): THIS IS AN APPEAL BY THE ASSESSEE AGAINST ORDER DA TED 21-05-2019 OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS), MUMBAI PERTAI NING TO ASSESSMENT YEAR 2011-12. 2. THE PRIMARY DISPUTE ARISING IN THIS APPEAL RELAT ES TO DENIAL OF ASSESSEES CLAIM OF DEDUCTION UNDER SECTION 80P(2)(A)(I) OF TH E INCOME TAX ACT, 1961. OF COURSE, THERE IS A SECONDARY ISSUE REGARDING ASSESS EES STATUS. 2 ITA 6029/MUM/2019 3. BRIEFLY THE FACTS ARE, AS CLAIMED BY THE ASSESSE E, IT IS A CO-OPERATIVE SOCIETY HAVING THE STATUS OF ASSOCIATION OF PERSONS (AOP) . HOWEVER, FOR THE ASSESSMENT YEAR UNDER DISPUTE, ASSESSEE FILED ITS RETURN OF IN COME ELECTRONICALLY ON 23-09- 2011 SHOWING THE STATUS AS FIRM. APPARENTLY, IN THE RETURN OF INCOME SO FILED, THE ASSESSEE DID NOT CLAIM ANY DEDUCTION UNDER SECTION 80P(2)(A)(I) OF THE ACT. THE RETURN OF INCOME FILED BY THE ASSESSEE WAS PROCESSE D BY THE CENTRAL PROCESSING CENTRE (CPC), INCOME TAX DEPARTMENT, BANGALORE UNDE R SECTION 143(1) OF THE ACT ON 09-02-2012 ASSESSING THE TOTAL INCOME OF RS.27,2 9,032/-. AFTER RECEIVING THE INTIMATION ISSUED UNDER SECTION 143(1) OF THE ACT, ASSESSEE FILED AN APPLICATION FOR RECTIFICATION UNDER SECTION 154 OF THE ACT SEEKING CHANGE OF STATUS FROM FIRM TO AOP AND TO ALLOW DEDUCTION UNDER SECTION 80P(2)(A)( I) OF THE ACT. THE ASSESSING OFFICER; HOWEVER, REJECTED ASSESSEES APPLICATION. BEING AGGRIEVED, ASSESSEE FILED AN APPEAL BEFORE LEARNED COMMISSIONER (APPEALS). HA VING FOUND THAT THE ASSESSEE HAD NOT CLAIMED THE DEDUCTION UNDER SECTIO N 80P(2)(A)(I) OF THE ACT IN THE RETURN OF INCOME, REFERRING TO SECTION 80A(5) O F THE ACT, LEARNED COMMISSIONER (APPEALS) HELD THAT DEDUCTION CLAIMED BY THE ASSESSEE CANNOT BE ALLOWED. 4. BEFORE US, LEARNED COUNSEL FOR THE ASSESSEE SUBM ITTED, THERE IS NO DISPUTE THAT THE ASSESSEE IS A CO-OPERATIVE SOCIETY; THEREF ORE, THE CORRECT STATUS OF THE ASSESEE IS OF AN AOP. HE SUBMITTED, BEING A CO-OPE RATIVE SOCIETY, THE ASSESSEE IS ALSO ELIGIBLE FOR DEDUCTION UNDER SECTION 80P(2)(A) (I) OF THE ACT. HE SUBMITTED, ASSESSEES STATUS AS AOP AS WELL AS CLAIM OF DEDUCT ION UNDER SECTION 80P(2)(A)(I) OF THE ACT HAS BEEN ACCEPTED BY THE TRIBUNAL IN ITS OWN CASE IN ASSESSMENT YEARS 2010-11 AND 2012-13. THUS, HE SUBMITTED, ASSESSEES CLAIM OF DEDUCTION UNDER SECTION 80P(2)(A)(I) OF THE ACT HAS TO BE ALLOWED. FURTHER, HE SUBMITTED, MERELY 3 ITA 6029/MUM/2019 BECAUSE THE ASSESSEE DID NOT CLAIM THE DEDUCTION UN DER SECTION 80P(2)(A)(I) OF THE ACT IN THE RETURN OF INCOME DUE TO INADVERTENT MIST AKE, SUCH DEDUCTION CANNOT BE DENIED, AS, THE ASSESSEE HAS FULFILLED THE CONDITIO NS OF SECTION 80P(2)(A)(I) ACT. IN THIS CONTEXT, HE RELIED UPON THE FOLLOWING DECISION S:- (1) ITO VS MSEB EMPLOYEES CO-OPERATIVE CREDIT SOCIE TY LTD ITA 793/PN/2013 DATED 18-07-2014 (2) CIT VS INDIAN EXPRESS (MADURAI) PVT LTD (1983) 13 TAXMANN.441 (3) QUPEM URBAN CO-OPERATIVE CREDIT SOCIETY LTD VS ACIT (2015) 58 TAXMANN.COM 113 (BOM) (4) CIT VS JAPARI MONIN CO-OPERATIVE CREDIT SOCIET Y LTD TAX APPEAL NO.442, 443 & 863 OF 2013 JUDGEMENT DT 15 -01-2014 (GUJ HC) 5. THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTE D, SINCE THE ASSESSEE HAD NOT CLAIMED THE DEDUCTION IN THE RETURN OF INCO ME FILED, THE DEDUCTION CANNOT BE ALLOWED IN VIEW OF THE CONDITION IMPOSED UNDER S ECTION 80A(5) OF THE ACT. 6. WE HAVE CONSIDERED RIVAL SUBMISSIONS IN THE LIGH T OF DECISIONS CITED BEFORE US AND PERUSED MATERIALS ON RECORD. ADMITTED FACTUA L POSITION EMANATING FROM RECORD MAKES IT CLEAR THAT NEITHER IN THE ORIGINAL RETURN OF INCOME NOR IN THE REVISED RETURN OF INCOME, THE ASSESSEE HAD CLAIMED DEDUCTION UNDER SECTION 80P(2)(A)(I) OF THE ACT. IT IS EVIDENT, LEARNED COM MISSIONER (APPEALS), REFERRING TO THE PROVISIONS CONTAINED IN SECTION 80A(5) OF THE A CT, HAS HELD THAT ASSESSEES CLAIM OF DEDUCTION UNDER SECTION 80P(2)(A)(I) OF TH E ACT CANNOT BE ALLOWED. BEFORE WE PROCEED TO DEAL WITH THE ISSUE ON MERIT, IT WILL BE PROPER TO EXAMINE THE PROVISION CONTAINED IN SECTION 80A(5) OF THE AC T, WHICH IS REPRODUCED BELOW FOR BETTER APPRECIATION:- 4 ITA 6029/MUM/2019 80A (A)XXXXXXXXXXXXXXX (1) TO (4)XXXXXXXXXXXXXXXXXXXX (5) WHERE THE ASSESSEE FAILS TO MAKE A CLAIM IN HIS RETURN OF INCOME FOR ANY DEDUCTION UNDER SECTION 10A OR SECTION 10AA OR SECTION 10B OR SECTION 10BA OR UNDER ANY PROVISION OF THIS CHAPTER UNDER THE HEADING ' C.DEDUCTIONS IN RESPECT OF CERTAIN IN- COMES', NO DEDUCTION SHALL BE ALLOWED TO HIM THEREUNDER. 6.1 A CAREFUL READING OF THE AFORESAID PROVISION MA KES IT CLEAR THAT UNLESS THE ASSESSEE CLAIMS THE DEDUCTION ALLOWABLE UNDER SECTI ON 10A, 10AA , 10B, 10BA OR UNDER ANY OTHER PROVISION IN CHAPTER-VIA UNDER THE HEADING, C.-DEDUCTIONS IN RESPECT OF CERTAIN INCOMES, NO DEDUCTION SHALL BE ALLOWED TO HIM. UNDISPUTEDLY, SECTION 80P COMES WITHIN CHAPTER-VIA UNDER THE HEAD ING C.-DEDUCTIONS IN RESPECT OF CERTAIN INCOMES. 6.2 THE LANGUAGE USED IN SECTION 80A(5) IS VERY MUC H CLEAR AND UNAMBIGUOUS. THUS, IT IS APPARENT, BESIDES FULFILLING THE CONDIT IONS OF SECTION 80P(2)(A)(I) OF THE ACT, THE ASSESSEE MUST ALSO FULFILL THE CONDITION C ONTAINED IN SECTION 80A(5) OF THE ACT. THEREFORE, THE ISSUE WHICH ARISES FOR CONSIDER ATION IS, WHETHER THE CONDITIONS OF SECTION 80A(5) IS MANDATORY FOR CLAIMING DEDUCTI ON UNDER SECTION 80P(2)(A)(I) OR NOT. 7. AT THIS STAGE, IT WOULD BE RELEVANT TO OBSERVE, AFTER THE CONCLUSION OF HEARING OF THE APPEAL INITIALLY ON 29-06-2021, A DE CISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN CASE OF EBR ENTERPRISES VS UOI (2019) 107 TAXMANN.COM 220 (BOMBAY) CAME TO THE NOTICE OF THE BENCH. IN THE INTEREST OF FAIR PLAY AND JUSTICE, THE APPEAL WAS AGAIN FIXED F OR HEARING TO PROVIDE AN OPPORTUNITY TO THE LITIGATING PARTIES TO EXAMINE TH E AFORESAID JUDGMENT OF THE HONBLE JURISDICTIONAL HIGH COURT AND MAKE THEIR SUB MISSIONS. 5 ITA 6029/MUM/2019 7.1 LEARNED AUTHORIZED REPRESENTATIVE OF THE ASSESS EE SUBMITTED THAT EVEN IF A CLAIM HAS NOT BEEN MADE IN THE RETURN OF INCOME, IT CAN STILL BE MADE BEFORE THE APPELLATE AUTHORITIES. IN THIS CONTEXT, HE RELIED U PON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF GOETZE INDIA LTD VS CI T 284 ITR 323 (SC). THUS, KEEPING IN VIEW THE SUBMISSIONS OF LEARNED AUTHORIZ ED REPRESENTATIVE OF THE ASSESSEE, WE PROCEED TO DECIDE THE ISSUE. 8. PERTINENTLY, IN CASE OF EBR ENTERPRISES VS UOI (SUPRA), THE FACTS ARE, IN THE RETURN OF INCOME FILED FOR THE ASSESSMENT YEAR 2008 -09, THE ASSESSEE DID NOT CLAIM DEDUCTION UNDER SECTION 80IB(10) OF THE ACT, THOUGH, THE ASSESSEE WAS ELIGIBLE FOR SUCH DEDUCTION. SINCE, THE ASSESSEE HA D NOT CLAIMED THE DEDUCTION IN THE RETURN OF INCOME, THE ASSESSING OFFICER COMPLET ED THE ASSESSMENT WITHOUT COMPUTING DEDUCTION UNDER SECTION 80IB(10) OF THE A CT. AGAINST THE ASSESSMENT ORDER SO PASSED, ASSESSEE FILED A REVISION APPLICAT ION UNDER SECTION 264 OF THE ACT, SEEKING A DIRECTION FOR ALLOWANCE OF DEDUCTION UNDE R SECTION 80IB(10) OF THE ACT. IT WAS SUBMITTED BY THE ASSESSEE THAT SINCE THE ASS ESSEE HAS FULFILLED THE CONDITIONS OF SECTION 80IB(10), MERELY BECAUSE HE D ID NOT FULFILL THE CONDITION OF SECTION 80A(5) OF THE ACT, CLAIM OF DEDUCTION CANNO T BE DISALLOWED. IT WAS FURTHER SUBMITTED THAT IN VIEW OF RATIO LAID DOWN IN THE CA SE OF GOETZE INDIA LTD VS CIT (SUPRA), THE ASSESSING OFFICER CAN DISALLOW A CLAIM OF DEDUCTION NOT MADE IN THE RETURN OF INCOME; HOWEVER, THERE IS NO SUCH RESTRIC TION ON THE APPELLATE/REVISIONAL AUTHORITY. WHILE DEALING WITH THE AFORESAID CONTENT IONS OF THE ASSESSEE, THE HONBLE JURISDICTIONAL HIGH COURT HAS HELD AS UNDER: - 4. AS IS WELL-KNOWN, UNDER SECTION 80-IB (10) OF THE ACT, THE LEGISLATURE HAS GRANTED DEDUCTIONS IN RELATION TO INCOME ARISING OUT OF DEV ELOPMENT OF HOUSING PROJECTS TO THE ASSESSEES THE FULFILLING CONDITIONS CONTAINED THERE IN. THIS PROVISION IS CONTAINED IN CHAPTER - VI - A OF THE ACT. SECTION 80A OF THE ACT WHICH IS ALSO CONTAINED IN THE SAME CHAPTER, PERTAINS TO DEDUCTIONS TO BE MADE IN COMPU TING TOTAL INCOME. SUB SECTION (5) 6 ITA 6029/MUM/2019 WAS INSERTED IN SECTION 80A OF THE ACT BY FINANCE ( NO.2) ACT, 2009 WITH RETROSPECTIVE EFFECT FROM 1ST APRIL, 2003. SUB SECTION (5) OF SEC TION 80A OF THE ACT, READS UNDER : '80A(5) - WHERE THE ASSESSEE FAILS TO MAKE A CLAIM IN HIS RETURN OF INCOME FOR ANY DEDUCTION UNDER SECTION 10A OR SECTION 10AA OR SECT ION 10B OR SECTION 10BA OR UNDER ANY PROVISION OF THIS CHAPTER UNDER THE HEADING 'C. -DEDUCTION IN RESPECT OF CERTAIN INCOMES', NO DEDUCTION SHALL BE ALLOWED TO HIM THER EUNDER'. 5. AS PER THIS PROVISION, WHERE THE ASSESSEE FAILS TO MAKE A CLAIM IN HIS RETURN OF INCOME FOR ANY DEDUCTION UNDER SECTION 10A OR SECTION 10AA OR SECTION 10B OR SECTION 10BA OR UNDER ANY PROVISION OF THE SAID CHAPTER - VI A UNDE R THE HEADING 'C.-DEDUCTION IN RESPECT OF CERTAIN INCOMES', NO DEDUCTION WOULD BE ALLOWED TO HIM UNDER THE SAID PROVISION. IN PLAIN TERMS, THIS SUB SECTION (5) OF SECTION 80A OF THE ACT IMPOSES AN ADDITIONAL CONDITION FOR CLAIM OF DEDUCTION IN RELATION TO INC OME UNDER ANY OF THE PROVISIONS MENTIONED THEREIN. APART FROM THE REQUIREMENT OF FU LFILLMENT OF INDIVIDUAL SET OF RESPECTIVE CONDITIONS FOR THE PURPOSE OF CLAIMING T HE CONCERNED DEDUCTION, THIS PLENARY CONDITION REQUIRES THAT THE CLAIM OUGHT TO HAVE MAD E IN THE RETURN OF INCOME BY THE ASSESSEE AND IF THE ASSESSEE FAILS TO MAKE SUCH CLA IM IN THE RETURN OF INCOME, SUCH DEDUCTION SHALL NOT ALLOWED TO HIM UNDER THE RELEVA NT PROVISION. ADMITTEDLY, IN THE PRESENT CASE, THE PETITIONERS HAD NOT RAISED ANY SU CH CLAIM IN THE RETURN OF INCOME. IN PLAIN TERMS, THE CLAIM OF THE PETITIONERS UNDER SEC TION 80-IB (10) OF THE ACT WOULD BE HIT BY SUB SECTION (5) OF SECTION 80A OF THE ACT. 6. WE ARE CONSCIOUS THAT IN ABSENCE OF THE PROVISION CONTAINED IN SECTION 80A (5) OF THE ACT, THE PETITIONERS COULD HAVE MAINTAINED THE CLAI M OF DEDUCTION EVEN BEFORE THE CIT FOR THE FIRST TIME IN REVISION APPLICATION, THOUGH NO S UCH CLAIM WAS MADE BEFORE THE ASSESSING OFFICER, IF FROM THE FACTS ON RECORD, THE PETITIONERS COULD SUSTAIN THE SAID CLAIM IN LAW. THIS IS VERY CLEAR FROM THE SERIES OF JUDGM ENTS OF VARIOUS HIGH COURTS. REFERENCE CAN BE MADE TO THE DECISION OF HIGH COURT OF GUJARA T IN CASE OF C. PARIKH & CO. V. CIT [1980] 4 TAXMAN 224/122 ITR 610 IN THE SAID DECISION, THE COURT HELD THAT: 'IT IS CLEAR THAT UNDER SECTION 264, THE CIT IS EMP OWERED TO EXERCISE REVISIONAL POWERS IN FAVOUR OF THE ASSESSEE. IN EXERCISE OF THIS POWER, THE CIT MAY, EITHER OF HIS OWN MOTION OR ON AN APPLICATION BY THE ASSESSEE, CALL FOR THE REC ORD OF ANY PROCEEDING UNDER THE ACT AND PASS SUCH ORDER THEREON NOT BEING AN ORDER PREJ UDICIAL TO THE ASSESSEE, AS THE THINKS FIT. SUB - SS. (2) AND (3) OF SECTION 264 PROVIDE F OR LIMITATION OF ONE YEAR FOR THE EXERCISE OF THIS REVISIONAL POWER, WHETHER SUO MOTU, OR AT T HE INSTANCE OF THE ASSESSEE. POWER IS ALSO CONFERRED ON THE CIT TO CONDONE DELAY IN CASE HE IS SATISFIED THAT THE ASSESSEE WAS PREVENTED BY SUFFICIENT CAUSE FROM MAKING THE APPLI CATION WITHIN THE PRESCRIBED PERIOD. SUB-S. (4) PROVIDES THAT THE CIT HAS NO POWER TO RE VISE ANY ORDER UNDER S. 264 (1) : (I) WHILE AN APPEAL AGAINST THE ORDER IS PENDING BEFORE THE AAC, AND (II) WHEN THE ORDER HAS BEEN SUBJECT TO AN APPEAL TO THE TRIBUNAL. SUBJECT TO THE ABOVE LIMITATION, THE REVISIONAL POWERS CONFERRED ON THE CIT UNDER S. 264 ARE VERY W IDE. HE HAS THE DISCRETION TO GRANT OR REFUSE RELIEF AND THE POWER TO PASS SUCH ORDER IN R EVISION AS HE MAY THINK FIT. THE DISCRETION WHICH THE CIT HAS TO EXERCISE IS UNDOUBT EDLY TO BE EXERCISED JUDICIALLY AND NOT ARBITRARILY ACCORDING TO HIS FANCY. THEREFORE, SUBJ ECT TO THE LIMITATION PRESCRIBED IN S. 264, THE CIT IN EXERCISE OF HIS REVISIONAL POWER UNDER T HE SAID SECTION MAY PASS SUCH ORDER AS HE THINKS FT WHICH IS NOT PREJUDICIAL TO THE ASSESS EE. THERE IS NOTHING IN S. 264 WHICH PLACES ANY RESTRICTION ON THE CIT'S REVISIONAL POWE R TO GIVE RELIEF TO THE ASSESSEE IN A CASE 7 ITA 6029/MUM/2019 WHERE THE ASSESSEE DETECTS MISTAKES ON ACCOUNT OF W HICH HE WAS OVER ASSESSED AFTER THE ASSESSMENT WAS COMPLETED. WE DO NOT READ ANY SUCH E MBARGO IN THE CIT'S POWER AS READ BY THE CIT IN THE PRESENT CASE. IT IS OPEN TO THE CIT TO ENTERTAIN EVEN A NEW GROUND NOT URGED BEFORE THE LOWER AUTHORITIES WHILE EXERCI SING REVISIONAL POWERS. THEREFORE, THOUGH THE PETITIONER HAD NOT RAISED THE GROUNDS RE GARDING UNDER-TOTALLING OF PURCHASES BEFORE THE ITO, IT WAS WITHIN THE POWER OF THE CIT TO ADMIT SUCH A GROUND IN REVISION. THE CIT WAS ALSO NOT RIGHT IN HOLDING THAT THE OVER-ASS ESSMENT DID NOT ARISE FROM THE ORDER THE ASSESSMENT. ONCE THE PETITIONER WAS ABLE TO SAT ISFY THAT THERE WAS A MISTAKE IN TOTALING PURCHASES AND THAT THERE WAS UNDER- TOTALL ING OF PURCHASES TO THE TUNE OF RS.20,000, IT IS OBVIOUS THAT THERE WAS OVER-ASSESS MENT. IN OTHER WORDS, THE ASSESSMENT OF THE TOTAL INCOME OF THE ASSESSEE IS NOT CORRECTL Y MADE IN THE ASSESSMENT ORDER AND IT HAS RESULTED IN OVER-ASSESSMENT THE CIT WOULD NOT B E ACTING DE HORS THE IT ACT, IF HE GIVES RELIEF TO THE ASSESSEE IN A CASE WHERE IT IS PROVED TO HIS SATISFACTION THAT THERE IS OVER-ASSESSMENT, WHETHER SUCH OVER-ASSESSMENT IS DU E TO A MISTAKE DETECTED BY THE ASSESSEE AFTER COMPLETION OF ASSESSMENT OR OTHERWIS E. IN OUR OPINION, THE CIT HAS MISCONSTRUED THE WORDS 'SUBJECT TO THE PROVISIONS O F THIS ACT' IN S. 264 (1) AND READ A RESTRICTION ON HIS REVISIONAL POWER WHICH DOES NOT EXIST. THE CIT WAS, THEREFORE, NOT RIGHT IN HOLDING THAT IT WAS NOT OPEN TO HIM TO GIVE RELI EF TO THE PETITIONER ON ACCOUNT OF THE PETITIONER 'S OWN MISTAKE WHICH IT DETECTED AFTER T HE ASSESSMENT WAS COMPLETED. ONCE IT IS FOUND THAT THERE WAS A MISTAKE IN MAKING AN ASSE SSMENT, THE CIT HAD POWER TO CORRECT IT UNDER S. 264 (1). IN OUR OPINION, THEREFORE, THE CIT WAS WRONG IN NOT GIVING RELIEF TO THE PETITIONER IN RESPECT OF OVER-ASSESSMENT AS A RESUL T OF UNDER-TOTALLING OF THE PURCHASES TO THE EXTENT OF RS.20,000.' 7. THIS WAS REITERATED IN CASE OF RAMDEV EXPORTS V. C IT [2002] 120 TAXMAN 315/[2001] 251 ITR 873 (GUJ.) THIS COURT ALSO IN CASE OF DANNY DENZONGPA V. CIT [2010] 7 TAXMANN.COM 81/194 TAXMAN 415 [2012] 344 ITR 166 HAS TAKEN A SIMILAR VIEW. 8. HOWEVER, THE PETITIONERS ARE FACED WITH THE STATUT ORY PROVISION CONTAINED IN SUB SECTION (5) OF SECTION 80A OF THE ACT. THE PETITION ERS' CLAIM CANNOT THEREFORE BE ACCEPTED DE HORS THE SAID STATUTORY PROVISION AND ORDINARY P RINCIPLE OF THE WIDE POWERS OF THE CIT EXERCISING REVISIONAL JURISDICTION UNDER SECTION 26 4 OF THE ACT CANNOT BE IMPORTED. WHAT SUB SECTION (5) OF SECTION 80A OF THE ACT MANDATES IS THAT, IF THE ASSESSEE FAILS TO MAKE A CLAIM IN HIS RETURN OF INCOME FOR ANY DEDUCTION UND ER THE PROVISIONS SPECIFIED THEREIN, THE SAME WOULD NOT BE GRANTED TO THE ASSESSEE. THIS CON DITION OR RESTRICTION IS NOT RELATABLE TO THE ASSESSING OFFICER OR THE INCOME TAX AUTHORIT Y. THIS CONDITION ATTACHES TO THE CLAIM OF THE ASSESSEE AND HAS TO BE IMPLEMENTED BY THE AS SESSING OFFICER, CIT OR THE APPELLATE TRIBUNAL AS THE CASE MAY BE. THERE IS NO INDICATION IN SUB SECTION (5) OF SECTION 80A OF THE ACT AS TO WHY THE RESTRICTION CONTAINED THEREIN AMOUNTS TO LIMITING THE POWER OF ASSESSING OFFICER BUT NOT THAT OF COMMISSIONER. 9. THIS ISSUE CAN BE LOOKED FROM SLIGHTLY DIFFERENT A NGLE. IN ABSENCE OF THE PROVISION CONTAINED IN SUB SECTION (5) OF SECTION 80A OF THE ACT HAS HELD BY VARIOUS DECISIONS OF THE HIGH COURTS NOTED ABOVE, THE CIT COULD ENTERTAIN A FRESH CLAIM IN REVISION APPLICATION EVEN IF THE CLAIM WAS NOT MADE PREVIOUSLY BEFORE TH E ASSESSING OFFICER. PROVISION CONTAINED IN SUB-SECTION (5) OF SECTION 80A IS A ST ATUTORY INTERDICT WHICH WOULD PREVENT THE CIT FROM GRANTING ANY SUCH CLAIM IN EXERCISE OF HIS REVISIONAL JURISDICTION UNDER SECTION 264 OF THE ACT. AS IS OFTEN TIMES STATED, E VEN HIGH COURT IN EXERCISE OF WRIT JURISDICTION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA WOULD NOT ISSUE DIRECTIONS 8 ITA 6029/MUM/2019 CONTRARY TO STATUTORY PROVISIONS. WIDTH OF THE POWE RS OF THE CIT UNDER SECTION 264 OF THE ACT WOULD NOT PERMIT HIM TO IGNORE THE REQUIREMENT OF SECTION 80A(5) OF THE ACT OR ALLOW THE CLAIM OF AN ASSESSEE IN BREACH OF THE CONDITION CONTAINED THEREIN. WE ARE THEREFORE NOT IN AGREEMENT THAT THE EXPRESSION GIVEN BY THE I NCOME TAX TRIBUNAL IN CASE OF MADHAV CONSTRUCTION (SUPRA) HOLDING THAT THE RES TRICTION CONTAINED IN SUB SECTION (5) OF SECTION 80A OF THE ACT IS TO RESTRICT THE POWER OF ASSESSING OFFICER AND NOT HIGHER INCOME TAX AUTHORITIES. 10. THE PETITIONERS HAVING GIVEN UP THE CHALLENGE TO T HE CONSTITUTIONALITY OF THE RETROSPECTIVITY TO SECTION 80A (5) OF THE ACT, CANN OT BRING IN THE CONCEPT OF THE READING DOWN OF THE PROVISION IN ORDER TO SAVE IT FROM UNCO NSTITUTIONALLY. IN PLAIN TERMS, OUR DUTY WOULD BE TO ENFORCE THE PROVISION CONTAINED IN SUB SECTION (5) OF SECTION 80A OF THE ACT, AS IT IS STANDS IN THE STATUE BOOK. THE DECISION IN CASE OF GOETZE (INDIA) LTD. (SUPRA) WAS RENDERED IN DIFFERENT BACKGROUND. THE SUPREME COURT DID NOT HAVE ANY OCCASION TO INTERPRET THE PROVISION OF SECTION 80A (5) OF THE A CT IN THE CONTEXT OF THE POWER OF THE CIT OR THE APPELLATE TRIBUNAL. 9. THUS FROM THE AFORESAID OBSERVATIONS OF THE HON BLE JURISDICTIONAL HIGH COURT, IT IS VERY MUCH CLEAR THAT EVEN THOUGH THE A SSESSEE MIGHT BE FULFILLING THE CONDITIONS OF THE PARTICULAR DEDUCTION PROVISION; H OWEVER, THE MANDATORY CONDITIONS OF SECTION 80A(5) OF THE ACT HAS TO BE F ULFILLED FOR CLAIMING DEDUCTION. WHILE LAYING DOWN THE AFORESAID RATIO, THE HONBLE JURISDICTIONAL HIGH COURT TOOK NOTE OF THE RATIO LAID DOWN BY THE HONBLE APEX COU RT IN CASE OF GOETZE INDIA LTD VS CIT(SUPRA). THUS, THE RATIO LAID DOWN IN THE AFO RESAID DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT WOULD SQUARELY APPLY TO TH E FACTS OF THE PRESENT APPEAL. 10. THOUGH, IT MAY BE A FACT THAT THE ASSESSEE IS O THERWISE ELIGIBLE TO CLAIM DEDUCTION UNDER SECTION 80P(2)(A)(I) OF THE ACT; HO WEVER, THE PROVISION CONTAINED IN SECTION 80A(5) OF THE ACT STANDS AS A BAR IN ALL OWING SUCH DEDUCTION TO THE ASSESSEE. FOR THE SAKE OF COMPLETENESS, WE MUST OBS ERVE, HAVING CAREFULLY GONE THROUGH THE DECISIONS CITED BY LEARNED AUTHORIZED R EPRESENTATIVE OF THE ASSESSEE, WE ARE OF THE VIEW THAT IN NONE OF THESE DECISIONS, THE PROVISION CONTAINED IN SECTION 80A(5) OF THE ACT WAS TAKEN NOTE OF. WE ARE CONSCIOUS OF THE FACT THAT IN CASE OF ITO VS MSEB EMPLOYEES CO-OPERATIVE CREDIT S OCIETY LTD (SUPRA), THE CO- ORDINATE BENCH HAS HELD THAT EVEN IF THE ASSESSEE H AS NOT CLAIMED A DEDUCTION IN 9 ITA 6029/MUM/2019 THE RETURN OF INCOME, THE APPELLATE AUTHORITIES HAV E POWER TO ALLOW DEDUCTION WHICH IS ALLOWABLE UNDER THE PROVISIONS OF THE ACT. HOWEVER, AS IT APPEARS FORM A READING OF THE SAID DECISION, PROVISION CONTAINED I N SECTION 80A(5) WAS NOT BROUGHT TO THE NOTICE OF THE TRIBUNAL. FURTHER, THE TRIBUNAL DID NOT HAVE THE BENEFIT OF THE DECISION OF THE HONBLE JURISDICTION AL HIGH COURT IN CASE OF EBR ENTERPRISES VS UOI (SUPRA) WHICH WAS SUBSEQUENTLY R ENDERED. 11. IT MAY BE A FACT THAT THE TRIBUNAL HAS ALLOWED ASSESSEES CLAIM OF DEDUCTION UNDER SECTION 80P(2)(A)(I) OF THE ACT IN ASSESSMENT YEARS 2010-11 AND 2012-13. HOWEVER, THERE IS NOTHING ON RECORD TO SUGGEST THAT THERE WAS ANY VIOLATION OF SECTION 80A(5) OF THE ACT. THEREFORE, THE FACTUAL P OSITION BASED ON WHICH THE DECISIONS WERE RENDERED IN ASSESSMENT YEAR 2010-11 AND 2012-13 ARE DIFFERENT FROM THE IMPUGNED ASSESSMENT YEAR. THUS, RESPECTFUL LY FOLLOWING THE RATIO LAID DOWN IN THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN EBR ENTERPRISES VS UOI (SUPRA), WE HOLD THAT THE ASSESSEE CANNOT BE AL LOWED DEDUCTION UNDER SECTION 80P(2)(A)(I) OF THE ACT, INSOFAR AS, THE I MPUGNED ASSESSMENT YEAR IS CONCERNED DUE TO NON FULFILLMENT OF CONDITIONS CONT AINED IN SECTION 80A(5) OF THE ACT. 12. AS REGARDS THE CORRECTION OF STATUS OF THE ASSE SSEE FROM FIRM TO AOP, THE ASSESSING OFFICER IS DIRECTED TO RECTIFY THE SAME A FTER VERIFYING ALL RELEVANT FACTS. 13. IN THE RESULT, APPEAL IS PARTLY ALLOWED. ORDER PRONOUNCED ON 08 /09/2021. SD/- SD/- (RAJESH KUMAR ) (SAKTIJIT DEY) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DT : 08/09/2021 PAVANAN 10 ITA 6029/MUM/2019 COPY TO : 1. APPELLANT 2. RESPONDENT 3. THE CIT CONCERNED 4. THE CIT(A) 5. THE DR, ITAT, MUMBAI 6. GUARD FILE /TRUE COPY/ BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI