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2019 (6) TMI 484 - HC - Income TaxRevision u/s 264 - deduction u/s 80-IB - HELD THAT:- Petitioners’ claim cannot therefore be accepted de hors the said statutory provision and ordinary principle of the wide powers of the CIT exercising revisional jurisdiction u/s 264 of the Act cannot be imported. What Section 80A(5) mandates is that, if the assessee fails to make a claim in his return of income for any deduction under the provisions specified therein, the same would not be granted to the assessee. This condition or restriction is not relatable to the Assessing Officer or the Income Tax Authority In absence of the provision contained in Section 80A(5) 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 the AO. Provision contained in Section 80A(5) is a statutory interdict which would prevent the CIT from granting any such claim in exercise of his revisional jurisdiction u/s 264. As is often times stated, even High Court in exercise of Writ jurisdiction under Article 226 of the Constitution of India would not issue directions contrary to statutory provisions. Width of the powers of the CIT u/s 264 would not permit him to ignore the requirement of Section 80A(5) 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 Income Tax Tribunal in case of Madhav Construction [2017 (8) TMI 1122 - ITAT MUMBAI] holding that the restriction contained in Section 80A(5) is to restrict the power of AO and not higher Income Tax Authorities. The Petitioners having given up the challenge to the constitutionality of the retrospectivity to Section 80A (5), cannot bring in the concept of the reading down of the provision in order to save if from unconstitutionally. In plain terms, our duty would be to enforce the provision contained in Sub Section (5) of Section 80A, as it is stands in the statue book. The decision in case of Goetze (India) Limited [2006 (3) TMI 75 - SUPREME COURT] was rendered in different background. The Supreme Court did not have any occasion to interpret the provision of Section 80A (5) in the context of the power of the CIT or the Appellate Tribunal. In the result, we do not find any merit in the Writ Petition, the same is therefore dismissed.
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