ESQUE FINMARK PRIVATE LIMITED , MUMBAI V. DCIT-CC-47, MUMBAI, MUMBAI

ITA 6041/MUM/2019

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 8396 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 4 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-02-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2011-2012
• Appeal Filed On: 22-09-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: HEMAKATARIA
• Keywords: Unexplained cash credit; Depreciation; Opportunity of being heard; Block assessment; Revised return; Unabsorbed depreciation; Set aside; CHAPTER XIVB
• Section: 68; 132; 139; 143(3); 54F; 153A; 133(6); 139(1); 153; 153C

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (VIRTUAL COURT) “D” BENCH, MUMBAI BEFORE SHRI S. RIFAUR RAHMAN, HON'BLE ACCOUNTANT MEMBER AND MS. SUCHITRA RAGHUNATH KAMBLE, HON'BLE JUDICIAL MEMBER ITA NO. 6041/MUM/2019 (A.Y: 2011-12) M/s. Esquefinmark Private Limited 9A, Chunawala Compound Parel Tank Road Kalachowki, Mumbai - 400033 PAN: AAACE8307P v. DCIT, Central Circle – 47 Room No. 658/676 Aayakar Bhavan M.K. Road Mumbai - 400020 (Appellant) (Respondent) Assessee by : Hema Kataria Department by D.K. Gupta Date of Hearing : 21.12.2021 Date of Pronouncement : 22.02.2022 O R D E R PER S. RIFAUR RAHMAN (AM) 1. This appeal is filed by the assessee against the order of the Learned Commissioner of Income Tax (Appeals)-47, Mumbai [hereinafter in short “Ld.CIT(A)”] dated 23.07.2019 for the A.Y. 2011-12. 2. Assessee has raised following grounds in its appeal: - 2 ITA NO. 6041/MUM/2019 (A.Y: 2011-12) M/s. Esquefinmark Private Limited “1. On the facts and in the circumstances of the appellant’s case and in law the Ld. CIT(A) erred in | confirming the addition of Rs.32,79,900/- made by the AO by invoking he provisions of section 68 of the Act. 2. On the facts and in the circumstances of the appellant’s case and in law the Ld. CIT(A) erred in not allowing the set off of unabsorbed business loss of earlier year amounting to Rs. 3,00,970/- 3. The appellant craves leave to add to, alter, amend and /or delete all or any of the foregoing grounds of appeal. 4. The appellant prays before the Hon’ble Tribunal to delete the addition made by the AO to the extent confirmed by the Ld. CIT(A). 3. With regard to Ground Nos. 3 and 4 as the grounds are general in nature, accordingly, these grounds are dismissed. 4. With regard to Ground No. 1 relevant facts are, during the assessment proceedings Assessing Officer observed that assessee has taken unsecured loans from Jayesh K. Sheth and no confirmations in respect of the unsecured loans were submitted in respect of the certain parties. Assessing Officer also issued notice u/s. 133(6) of the Act to these parties. In response, no reply and submissions were received accordingly, he proceeded to make the addition of ₹.32,79,900/- u/s. 68 of the Act with the observation that when the assessee offers no explanation about the nature and sources of the same or explanation is 3 ITA NO. 6041/MUM/2019 (A.Y: 2011-12) M/s. Esquefinmark Private Limited not satisfactory then the said sum is required to be considered as income of the assessee in the previous year. 5. Aggrieved assessee preferred an appeal before the Ld.CIT(A) and filed detailed submissions. After considering the submissions of the assessee Ld.CIT(A) dismissed the ground raised by the assessee with the observation that assessee was asked to furnish the confirmations from various lenders of the unsecured loans. Wherever the Assessing Officer not received the confirmations, he issued notice u/s. 133(6) of the Act. The Ld.CIT(A) observed that it is fact on record that one of the party Jayesh K. Sheth had failed to furnish the reply to the notice issued u/s.133(6) of the Act. Since there was no response from lender, he was in agreement with the Assessing Officer who had held the unsecured loans from Jayesh K. Sheth as unexplained cash credit u/s. 68 of the Act. 6. Aggrieved assessee is in appeal before us and Ld. AR submitted that the Assessing Officer made the addition considering the amount received from Jayesh K. Sheth as unsecured loans whereas the actual transaction is relating to receipt of flat advance. In this regard she brought to our notice Page No. 19 of the Paper Book which is the audited financial statement for the year ended 31.03.2011 and she brought to our notice 4 ITA NO. 6041/MUM/2019 (A.Y: 2011-12) M/s. Esquefinmark Private Limited Page No. 17 of the Paper Book which is the details relating to the advance for flat received by the assessee which contain the details of receipt of advance from Jayesh K. Sheth of ₹.30 lakhs. She submitted that it is only relating to flat advance received by the assessee and not unsecured loans. 7. On the other hand, Ld. DR relied on the orders passed by the lower authorities and submitted that there is no response from the party even after issue of notice u/s. 133(6) of the Act. Therefore, he submitted that genuineness was not proved before Ld. CIT(A) and the Assessing Officer. 8. Considered the rival submissions and material placed on record, we observe that as per the Balance Sheet submitted before us in the form of Paper Book clearly indicate that assessee has received ₹.30 lakhs from Jayesh K. Sheth and there is no other entry in the name of Jayesh K. Sheth anywhere in the Balance Sheet. We do not see the amount mentioned by the Assessing Officer of ₹.32,79,900/- as outstanding nowhere in the balance sheet. Therefore, we presume that Assessing Officer must have considered the interest also along with the outstanding advance. Since assessee has brought to our notice that it is only a flat advance received by the assessee not as unsecured loans. At the same time, we observe from the record that there is no independent finding or 5 ITA NO. 6041/MUM/2019 (A.Y: 2011-12) M/s. Esquefinmark Private Limited material available on record to show that the above said party has lent the money to the assessee as unsecured loans and since Assessing Officer has issued show cause notice u/s.133(6) of the Act for which no response or any confirmations submitted by the assessee before the Assessing Officer, therefore, we direct the assessee to file the confirmations from Jayesh K. Sheth for receipt of ₹.30 lakhs as advance for the flat. At the same time, we direct the Assessing Officer on receipt of confirmation of the above said advance, we direct the Assessing Officer to delete the addition since it is not an unsecured loan and on submission of the above confirmation it proves that assessee has proved the genuineness of the receipt of the above said advance. Accordingly, Ground raised by the assessee is allowed for statistical purpose. 9. With regard to Ground No. 2 the brief facts of the case are that, during the assessment proceedings Assessing Officer observed that assessee has filed return u/s. 139 of the Act and it has declared its income at ₹.3,00,970/-. However, while filing return u/s. 153A of the Act assessee has declared its income at ₹.NIL. Assessing Officer observed that as no fresh claim is allowed in the return filed u/s. 153A, accordingly ₹.3,00,970/- is added to the income of the assessee. Aggrieved assessee 6 ITA NO. 6041/MUM/2019 (A.Y: 2011-12) M/s. Esquefinmark Private Limited preferred an appeal before the Ld.CIT(A) and filed the detailed submissions before him, for the sake of clarity it is reproduced below: - “24.0 During the course of appellate proceedings, the AR of the Appellant Company had submitted as under: - "ASSESSING OFFICER'S CONTENTION 48. In the return u/s. 153A of the Act, the Appellant has set off its income of Rs.3,00,970/- against carried forward loss of Rs.5,12,069/- anti Rs.3,07,740/- which pertains to AY 2009-10 and A.Y. 2010-11 respectively. The said loss is due to ordinary business of Rs. 49,747/- and unabsorbed depreciation of Rs. 4,62,322/-which were claimed in return filed u/s 153A of the Act and not in the return filed u/s. 139 of the Act. Vide order dated 28.03.2014 passed u/s. 153A r.w.s. 143(3) for A.Y. 2011-12 of the Act, the AO disallowed the said claim of Rs. 3,00,970/- on the grounds that no fresh claim can be made while filing return u/s 153A of the Act. The AO disallowed the said claim on the ground that the claim was not made by the Company while filing the Return of Income u/s. 139(1) of the Act. Consequently, the AO disallowed the loss of Rs. 3,00,970/- for the year under consideration on the same ground. APPELLANT'S SUBMISSIONS IN RESPECT OF ASSESSING OFFICER'S CONTENTION 49. In this regard, at the outset, we would like to draw Your Honor's kind attention to the provisions of section 153A of the Act which reads as under: "153A. [(1)] Notwithstanding anything contained in section 139, section 147, section 148, section 149, section 151 and section 153, in the case of ci person where a search is initiated under section 132 or books of account, other documents or any assets are requisitioned under section 132A after the 31st day of May, 2003, the Assessing Officer shall— (a) issue notice to such person requiring him to furnish within such period, as may be specified in the notice, the return of income in respect of each assessment year falling within six assessment years referred tom clause (b), in the prescribed form and verified in the prescribed manner and setting forth such other particulars as may be prescribed and the provisions of this Act shall, so far as may be, apply accordingly as if such return were a return required to be furnished under section 139; (Emphasis Supplied) (b) assess or reassess the total income of six assessment years immediately preceding the assessment year relevant to the previous year in which such search is conducted or requisition is made 7 ITA NO. 6041/MUM/2019 (A.Y: 2011-12) M/s. Esquefinmark Private Limited Provided that the Assessing Officer shall assess or reassess the total income in respect of each assessment year falling within such six assessment years: Provided further that assessment or reassessment, if any, relating to any assessment year falling within the period of six assessment years referred to in this [sub-section] pending on the date of initiation of the search under section 132 or making of requisition under section 132A, as the case may be, shall abate: [Provided also that the Central Government may by rules made by it and published in the Official Gazette (except in cases where any assessment or reassessment has abated under the second proviso), specify the class or classes of cases in which the Assessing Officer shall not be required to issue notice for assessing or reassessing the total income for six assessment years immediately preceding the assessment year relevant to the previous year in which search is conducted or requisition is made.] [(2) If any proceeding initiated or any order of assessment or reassessment made under sub-section (1) has been annulled in appeal or any other legal proceeding, then, notwithstanding anything contained in Sub-section (1) or section 153, the assessment or reassessment relating to any assessment year which has abated under the second proviso to subsection (I), shall stand revived with effect from the date of receipt of the order of such annulment by the [Principal Commissioner or] Commissioner: Provided that such revival shall cease to have effect, if such order of annulment is set aside.] Explanation. —For the removal of doubts, it is hereby declared that, — (i) save as otherwise provided in this section, section 153B and section 153C, all other provisions of this Act shall apply to the assessment made under this section; (ii) in an assessment or reassessment made in respect of an assessment year under this section, the tax shall be chargeable at the rate or rates as applicable to such assessment year." 50. On a plain reading of the above, Your Honor may observe that the section starts with a non-obstante clause meaning thereby that the issue of notice requiring a person to furnish a Return of Income is in the nature of fresh proceedings. Therefore, while examining claims made in the course of such proceedings, the merits of the claim have to be examined and the same cannot be denied only on the ground that such claim had not been made in the original proceedings/Return of Income. 8 ITA NO. 6041/MUM/2019 (A.Y: 2011-12) M/s. Esquefinmark Private Limited 51. Further, clause (a) of sub section (1) clearly specifies that the Return of Income filed in response to the notice issued will be treated as if it were a return required to be furnished u/s. 139 of the Act. The said provision clearly, establishes that a return filed in response to notice u/s. 153A/ 153C of the Act stands on equal footing with a return filed u/s. 139 of the Act. If an assessee was eligible to make a claim in a return filed u/s. 139 of the Act, there is no reason why such a claim cannot be made in the return filed in response to notice u/s. 153A/ 153C of the Act. 52. Further, it is submitted that the assessment as envisaged under provisions of Section 153A/ 153C of the Act is no more assessment of 'undisclosed income' as was the case under erstwhile Chapter XIVB of the Act. As per the provisions of section 153A/ 153C of the Act, the AO is bound to assess the 'total income' of six assessment years immediately preceding the assessment year relevant to the previous year, in which, search is carried out. Therefore, it is open for an assessee to claim a new deduction while filing return u/s. 153A/ 153C of the Act, even if the deduction was not claimed in the regular assessment/original return. 53. Further, the assessment proceedings u/s. 153A/ 153C of the Act are de novo assessment proceeding. Therefore, irrespective of any claim pertaining to income, expenditure or deduction made in the original return filed u/s. 139 of the Act, the AO or assessee is free to determine/claim the same in the years, for which a notice under Section 153A/ 153C of the Act has been issued and a return has been furnished in response thereto. 54. It is submitted that while passing the order u/s.153A/ 153C r.w.s. 143(3) of the Act, the AO has overlooked the above facts viz, provisions of section 153A of the Act and merely disallowed the claim without giving any reasons. 55. Further, it may be noted that the AO has not discussed the merits of allowability of the claim made by the Appellant in the return filed u/s. 153A of the Act. 56. In the present case, the Appellant has set off its income against carried forward loss of Rs. 5,12,069/- and Rs. 3,07,740/- which pertains to AY 2009-10 and AY 2010-11. The said loss is due to ordinary business of Rs. 49.747/- and unabsorbed depreciation of Rs. 4,62,322/- which were not claimed in the return filed u/s. 139 of the Act but was claimed u/s 153A of the Act. The loss claimed was disallowed by the AO. 57. Further, we would like to invite Your Honor's kind attention towards the following extract from the decision of Mumbai Bench of Hon'ble Tribunal in the case of DCIT v. M/s Eversmile Construction Co. Pvt. Ltd. which is reproduced herein below: 9 ITA NO. 6041/MUM/2019 (A.Y: 2011-12) M/s. Esquefinmark Private Limited "A close look at the above provision manifests that the Assessing Officer is required to make assessment afresh and compute the 'total income' in respect of each of the relevant six assessment years. As there is no specific inhibition on the jurisdiction of the Assessing Officer in not including any new income to such fresh total income pursuant to search which was not added during the original assessment, in the like manner, there is no restriction on the assessee to claim any deduction which was not allowed in the original assessment. The requirement of section 153A is to compute the total income of each of such assessment years. Such determination of the total income has to be done afresh without any reference to what was done in the original assessment. Of course, the AO is entitled to make any addition in the fresh assessment, which he made in the original assessment, provided he is satisfied with the merits of the addition. But the mere fact that there was some addition in the original assessment, would not preclude the assessee from contesting the addition in the subsequent proceedings. As it is going to be a fresh exercise of framing assessment or reassessment of the total income at the end of the AO, the assessee cannot be stopped from not even arguing about the merits of his case qua the addition which was made in the original assessment. Debarring the assessee from making a claim about the deductibility of any item, which was earlier disallowed, counters the very concept of fresh assessment of total income." 58. Reliance is next placed on the decision of Hyderabad Bench of Hon’ble ITAT in the case of DCIT, Central Circle - 7 v/s M/s. AB Holding Company. In this case the Appellant made fresh claim while filing Return of Income u/s. 153C of the Act. The Assessing Officer disallowed fresh claim on the ground that it was a fresh claim and fresh claim is not allowed and passed the order. Hon'ble Tribunal held that a fresh claim made in the course of assessment u/s. 153A/ 153C of the Act is allowed on merit basis and the merit of the claim has to be examined by the AO. However, neither the Id. CIT (A) has given any specific finding on the merit of the assesse's claim nor has he directed the AG to verify the same on merit. Therefore, Hon'ble ITAT restored the matter to the file of the AG for limited purpose. Hence from the above decision it is abundantly clear that while examining claims made in the course of assessment/Return of Income u/s. 153A/ 153C of the Act, the merits have to be examined afresh by the AG and the claim cannot be denied only on the ground that such claim had not been made in the original proceedings/return of income. Accordingly, even in the Appellants case the AG ought to have examined the merits of the claim made by the Appellant. 59. We would further like to rely upon decision of Mumbai bench of Hon'ble ITAT in the case of Faisal Abbas v. DCIT, Central Circle 2, (ITA No. 3838/Mum/i 1). In the said case also, Hon'ble Tribunal instructed the 10 ITA NO. 6041/MUM/2019 (A.Y: 2011-12) M/s. Esquefinmark Private Limited Assessing Officer to allow the loss which was initially disallowed by the Assessing Officer due to late filing of return u/s. 139 (5). Tribunal held following: "In so far as the reliance of the Id. CIT(A) on the case of E.K. Lingamurthy (supra) is concerned, we find that the same is misplaced because this judgment has been rendered in the context of block assessment under ITA N6.3838 of 2011 Faisal Abbas Mumbai Chapter XIVB. Section 158BA requires the assessment of "undisclosed income" as ci result of search. Section 1 58BB(4) clearly provides that the losses brought forward etc. shall not be set off against the undisclosed income determined in the block assessment under this Chapter but may be carried forward for being set off in the regular assessment. The position is quite different in the case of assessment u/s..153A. Under the substituted mode of assessment pursuant to search, the requirement is to assess or re-assess the total income" in respect of each assessment year falling within such six assessment years as contrary to the determination of "undisclosed income" u/s..158BC for the block period. There is no provision analogous to sec. 158BB(4) in section 153A etc. 8. In view of the foregoing reasons, we are satisfied that assessee is entitled to set off of the brought forward business loss against the income of the current year as per law. As the composition of the total income for the current year is not available on record, we set aside the impugned order and restore the matter to the file of AO for allowing the set off of the brought forward business loss against the current year's income as per law after allowing a reasonable opportunity of being heard to assessee ". 60. Reliance is placed upon decision of Pune bench of Hon'ble ITAT in case of Manish Madhav Malpani, Sangamner vs ACIT (ITA No. 1090/PN/2013) which is reproduced herein below: "The assessee has filed his original return of income on 28-09-2009, however, no capital gain on account of such sale of land was declared in the original return. The assessee in the return filed in response to notice u/s.153A declared the long term capital gain and simultaneously claimed deduction of Rs.31,20,000/- u/s.54F on account of purchase of a flat. 12. We are of the considered opinion that the character of the income remains "long term capital gain" and the assessee can make a new claim in the pending assessment which has not abated. Since the assessee otherwise fulfils the conditions laid down in provisions of section 54F of the I. T. Act, therefore, we are of the considered opinion that the assessee is entitled to claim deduction u/s.54F to the extent of Rs.31,20,000/-. In this view of the matter we set aside the order of the CIT(A) and allow the appeal filed by the assessee. 11 ITA NO. 6041/MUM/2019 (A.Y: 2011-12) M/s. Esquefinmark Private Limited 13. In the result, the appeal filed by the assessee is allowed Pronounced in the open court on 22-05-2015." 61. We would further like to rely upon decision of Mumbai bench of Hon'ble ITAT in case of Shweta Avarsekar, Mumbai vs AsstCit Cen Cir 8(2) (ITA No.1090/PN/2013). In this case, the assessee is aggrieved by the decision of the learned CIT(A) in confirming the disallowance of exemption claimed by the assessee u/s. 153A of the Act on 31.1.2014, wherein the assessee claimed deduction u/s 54F. The Assessing Officer rejected the claim of the assessee on the following grounds:- The assessee already owns a property at Avarsekar Heights and the same has been let out. The learned AR submitted that Hon'ble Bombay High Court has considered an identical issue in the case of CIT Vs. B.G. Shirke Construction Technology Ltd. 293 CTR 505, wherein Hon'ble Bombay High Court has held that the assessee could make fresh claim before the Assessing Officer in 153A proceedings, even if the said claim is not made in the return filed under that section. Accordingly, ITAT set aside the order passed by Ld. CIT(A) and restore the same to the Assessing Officer with the direction to allow the claim of the assessee u/s. 54F of the Act after satisfying himself about the claim of the assessee. In the result, appeal filed by the assessee is allowed. 62. Further, we place reliance upon decision of Pune bench of Hon'ble ITAT in case of M/s D.J. Malpani vs ACIT, CC-1(1) (ITA No. 1148 to 1154/PN/2013) which is reproduced herein below: "The assessee filed original return of income on 30-10-2007 declaring total income at Rs.18,17,42,421/-. In response to notice u/s.153A the assessee filed the return of income on 24-06-2010 disclosing total income of Rs.12,80,97,695/- after claiming deduction of Rs.5,36,44,728/-. Since the assessee had not claimed the deduction u/s.80IA(4) the AO was of the opinion that the assessee cannot make the fresh claim in the return filed in response to notice u/s.153A which was not claimed in the original return. The AO and CIT(A) accordingly disallowed the claim of deduction of Rs.5,36,44,728/- u/s.80IA(4). 53. Since the assessment for the impugned assessment year was pending on the data of search, therefore, respectfully following the decision of the coordinate bench of the tribunal cited (supra) we hold that the CIT(A) was not justified in rejecting the claim made u/s.80IA(4) of the LT Act merely because the assessee had not made the claim in the original return. We accordingly set aside the order of the CIT(A) on this issue and the grounds raised by the assesse are allowed. 63. In view of the various judicial pronouncements cited above, it is reiterated that the assessment proceedings under section 153A/ 153C of the Act are de novo assessment proceeding. Therefore, irrespective of any claim pertaining to income, expenditure or deduction made in the original return filed u/s. 139 of the Act, the AO or assessee is free to determine/claim the same in the years, for which a notice under Section 153A/ 153C of the Act has been issued and a return has been furnished in response thereto. 12 ITA NO. 6041/MUM/2019 (A.Y: 2011-12) M/s. Esquefinmark Private Limited 64. Accordingly, we most humbly request your Goodself to kindly allow the loss claimed by the Appellant Company while filing return u/s. 153A of the Act and oblige." 10. After considering detailed submissions of the assessee, Ld.CIT(A) dismissed the ground raised by the assesse with the observation that the claim of the assessee is not tenable as per provisions of section 153A, it cannot take advantage of a search operation mounted on it for detecting the undisclosed income and make a fresh claim in the return of income filed u/s. 153A of the Act. 11. Aggrieved assessee is in appeal before us and at the time of hearing Ld. AR submitted that the issue involved is covered in favour of the assessee and she brought to our notice decision of the Hon'ble Bombay High Court in the case of CIT v. B.G. Shrike Construction Technology Pvt. Ltd., [79 taxamann.com 306] and she relied on other case law filed in the Paper Book. 12. On the other hand, Ld. DR submitted that the facts have to be verified with the case law relied by the assessee and it is distinguishable to the facts of the present case. 13 ITA NO. 6041/MUM/2019 (A.Y: 2011-12) M/s. Esquefinmark Private Limited 13. Considered the rival submissions and material placed on record, we observe from the record that Ld.CIT(A) and Assessing Officer has denied the profit declared by the assessee in the return of income filed u/s. 139 of the Act and while filing the return u/s. 153A of the Act, assessee has adjusted the profit declared u/s. 139(1) of the Act against in the unclaimed business loss and unabsorbed depreciation. We noticed that Hon'ble Bombay High Court in the case of CIT v. B.G. Shrike Construction Technology Pvt. Ltd., (supra) has held that the return filed u/s. 153A is a return furnished u/s. 139 and therefore the provisions of the Act which apply in case of return filed in regular course u/s. 139(1), would also continue to apply in case of return filed u/s. 153A of the Act. the relevant ratio of the case is given below: - “11. In the present facts for the subject assessment years it is an undisputed position that the pending assessment before the Assessing Officer consequent to return filed under Section 139(1) of the Act for the subject Assessment years had abated. This was on account of the search and as provided in second proviso to Section 153A(1) of the Act. The consequence of notice under Section 153 A(1) of the Act is that assessee is required to furnish fresh return of income for each of the six assessment years in regard to which a notice has been issued. It is this return which is filed consequent to the notice which would be subject of assessment by the Revenue for the first time in the case of abated assessment proceedings. Consequent to notice under Section 153A of the Act the earlier return filed for the purpose of assessment which is pending. would be treated as non est in law. Further, Section 153A(1) of the Act itself provides on filing of the return consequent to notice, the provision of the Act will apply to the 14 ITA NO. 6041/MUM/2019 (A.Y: 2011-12) M/s. Esquefinmark Private Limited return of income so filed. Consequently, the return filed under Section 153A(1) of the Act is a return furnished under Section 139 of the Act. Consequently, the respondent-assessee is being assessed in respect of abated assessment for the first time under the Act. Therefore the provisions of the Act which would be otherwise applicable in case of return filed in the regular course under Section 139(1) of the Act would also continue to apply in case of return filed under Section 153A of the Act and the case laws on the provision of the Act would equally apply. 12. This Court in Pruthvi Brokers & Shareholders (supra) while dealing with a return of income filed under Section 139(1) of the Act has held that an assessee is entitled to raise a fresh claim before the Appellate Authorities, even if the same was not raised before the Assessing Officer at the time of filing return of income or by filing a revised return of income. This Court also placed reliance upon decision of the Apex Court in National Thermal Power Co. Ltd. v. CIT 1998 229 ITR 383 wherein while dealing with the powers of the Assessing Officer it had held that a claim not made in the return of income, the Court may lead to non entertainment of claim by the Assessing Officer. However, this restriction in the power of the Assessing Officer will not affect the power of the appellate Tribunal to entertain a fresh claim.” 14. Respectfully following the said decision, we allow the ground raised by the assessee. 15. In the result, appeal filed by the assessee is allowed for statistical purpose. Sd/- Sd/- (SUCHITRA RAGHUNATH KAMBLE) (S. RIFAUR RAHMAN) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai / Dated 22/02/2022 Giridhar, Sr.PS 15 ITA NO. 6041/MUM/2019 (A.Y: 2011-12) M/s. Esquefinmark Private Limited Copy of the Order forwarded to: 1. The Appellant 2. The Respondent. 3. The CIT(A), Mumbai. 4. CIT 5. DR, ITAT, Mumbai 6. Guard file. //True Copy// BY ORDER (Asstt. Registrar) ITAT, Mum