Home Case Index All Cases Income Tax Income Tax + AT Income Tax - 2013 (7) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2013 (7) TMI 445 - AT - Income TaxReopening of assessment - donations for scientific research or rural development - disallowance of deduction u/s 80GGA as assessee was having income/loss under the head ”income from business or profession” - Held that:- The assessment order passed u/s 143(3) does not reveal even semblance of enquiry by the AO with regard to claim of deduction u/s 80GGA. No other material was submitted to demonstrate that the AO had conducted any enquiry with regard to claim of deduction u/s 80GGA. When the assessee had made the claim of deduction u/s 80GGA for the first time in the revised return it was incumbent upon the AO to properly examine the allowability of the claim made by the assessee. In view of restriction imposed under sub-section (3) of section 80GGA AO having not at all considered the issue or applied his mind to the claim of deduction u/s 80GGA, there was escapement of income and as such initiation of proceeding u/s 147 is valid - not inclined to accept the contentions of assessee that the reopening of assessment was invalid. Against assessee. Since the assessee during the year had incurred loss from business and had no income chargeable to tax under the head ‘income from business or profession’ sub-section (3) of section 80GGA will not apply such contention is not acceptable for the simple reason that “income” as defined u/s 2(24) is an inclusive definition and also includes loss. As decided in CIT V/s. Hara Prasad & Co. Pvt. Limited (1975 (2) TMI 2 - SUPREME Court) the words “income” or “profit and gains” should be understood as including losses also, so that, in one sense “profits and gains” represent “plus income” whereas losses represent “minus income”. Loss is negative profit. Both positive and negative profits are of revenue character. Both must enter into computation, wherever it becomes material in the same mode of the taxable income of the assessee. Also see Reliance Jute and Industries Limited V/s. CIT (1979 (10) TMI 2 - SUPREME Court) and CIT V/s. Goldcoin Health (P) Ltd. (2008 (8) TMI 5 - SUPREME COURT ). Therefore, in view of the specific bar created under sub-section (3) of section 80GGA, the assessee is not entitled to avail deduction u/s 80GGA - grounds raised by the assessee are dismissed. Deduction alternatively claimed u/s 35AC in case deduction u/s 80GGA is not allowed - additional ground - Held that:- It is an undisputed fact that in the original return of income the assessee had claimed deduction u/s 35AC which was withdrawn in the revised return and claimed deduction u/s 80GGA. The original assessment u/s 143(3) was completed on the basis of the revised return filed by the assessee. Thus, the assessee having given up its claim u/s 35AC in the revised return filed by him, the claim of deduction/s 35AC cannot be allowed on the basis of the original return. See CIT V/s. Mahendra Mills (2000 (3) TMI 3 - SUPREME Court) - Against assessee. Interest u/s 234D levied - Held that:- The provision contained u/s 234D(1) along with Explanation-1 if construed harmoniously would mean that if there is no regular assessment i.e., assessment u/s 143(3) or section 144 in case of an assessee for an assessment year, then an assessment made for the first time u/s 147 or section 153A shall be regarded as a regular assessment. However, in case of the assessee an assessment has already been completed u/s 143(3). Therefore, it cannot be said that the assessment made u/s 147 is a regular assessment in terms with the Explanation-1 to section 234D, thus no interest u/s 234D is leviable on the assessee in the assessment completed u/s 147. See Dredging Corporation of India Ltd. V/s. ACIT (2011 (7) TMI 584 - ITAT VISAKHAPATNAM). In favour of assessee.
|