TMI Blog2010 (11) TMI 1012X X X X Extracts X X X X X X X X Extracts X X X X ..... not liable for FBT based on question No : 8/2005 dated 29.08.2005. 2. The issue involved in this appeal is with reference to not allowing the claim of the assessee of ₹ 30.58 millions which was offered originally in the computation of FBT under section 115WB made by the assessee but claimed not includable at the time of assessment before the A.O. The A.O. even though considered another amount for addition which was excluded originally by the assessee and made an addition of ₹ 4,90,000/- to the total value of fringe benefits in the assessment order claim for exclusion of the above amount of ₹ 30.58 million made in the same letter (also by letter dated 05.08.2008 earlier) was not considered. Before the CIT(A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elying on the decision of Goetze India Ltd. (supra). It was his submission that the Hon'ble ITAT Bench in assessee s own case for A.Y. 2003-04 in ITA 5092/Mum/2007 has considered and allowed a similar claim of prior period adjustments, which were not made as part of the return filed but claimed during the course of assessment proceedings. He relied on the orders of the ITAT for allowing the claim and restoring the matter back to the file of the CIT(A). He submitted that the issue can be restored to the file of the CIT(A) to consider on its merits. 4. The learned D.R., however, submitted that the CIT(A) has correctly considered the issue and rejected the same. 5. We have considered the arguments and examined the record. The ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e A.O. in the course of assessment proceedings and by the CIT(A) and held as under: 21. We have heard the learned representatives of the parties and perused the record. ................................ In this appeal, the preliminary question that falls for consideration relates to scope of powers of CIT(A) whether the CIT(A) was having power to admit assessee s claim without filing revised return of income. To properly appreciate the issue, we would like to reproduce the finding given by Hon ble Supreme Court in case of Goetz India Ltd. cited supra, reads as under:- The decision in question is that the power of the Tribunal under section 254 of the Income-tax Act, 1961, is to entertain for the first time a poi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the inquiry held or evidence recorded by, the Settlement Commission, in the course of the proceeding before it and such other material as may be brought on his record, confirm, reduce, enhance or annul the assessment. b) in any appeal against an order imposing a penalty, he may confirm or cancel such order or vary it so as either to enhance or to reduce the penalty; c) in any other case, he may pass such orders in the appeal as he thinks f it.: 21.2 The issue related power of first appellate Authority has been examined by the Hon ble Supreme Court in the case of Commissioner of Income-tax v. Nirbheram Deluram 224 ITR 610(SC). The brief facts of that case were that during reassessment proceedings the ITO made addition to the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cal to section 251(1)(a) of the 1961 Act] was considered and it was held: ' If an appeal lies, section 31 of the Act describes the powers of the Appellate Assistant Commissioner in such an appeal. Under section 31(3)(a), in disposing of such an appeal, the Appellate Assistant Commissioner may, in the case of an order of assessment, confirm, reduce, enhance or annul the assessment; under clause (b) thereof he may set aside the assessment and direct the Income-tax Officer to make a fresh assessment. The Appellate Assistant Commissioner has, therefore, plenary powers in disposing of an appeal. The scope of his power is coterminous with that of the Income-tax Off icer. He can do what the Income-tax Officer can do and also direct h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Taking note of the decision in Gurjargravures (P.) Ltd. s case (supra), the Court has said : ... Apparently, this view taken by the two Judge Bench of this Court appears to be in conflict with the view taken by the three Judge Bench of this Court in Kanpur Coal Syndicate case [1964] 53 ITR 225. It appears from the report of the decision in the Gujarat case that the three Judge Bench decision in Kanpur Coal Syndicate case [1964] 53 ITR 225 (SC) was not brought to the notice of the Bench in Gurjargravures (P.) Ltd. [1978] 111 ITR 1 (SC). In the circumstances, the view of the Larger Bench in Kanpur Coal Syndicate case [1964] 53 ITR 225 (SC) holds the field.... (p. 694) Having regard to the decision in Jute Corpn. of India Ltd.'s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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