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2023 (2) TMI 1010 - AT - Income TaxTaxation of capital gain - claim was not made in the return of income - eligibility of being taxed @10% on such sale of capital gains or 20% - eligibility of the assessee of being taxed at the lower rate of 10% in absence of the assessee filing the claim by way of revised return of income - AO rejecting claim of appellant on ground that appellant has opted to pay tax as per provisions of section 112(l)(c)(ii) in return and such change of claim is admissible only by filing revised return of income - HELD THAT:- As in Circular Number 14 (XL-35) of 1955 dated 11-04-1955 Department has taken a view that the officers of the department must not take advantage of ignorance of the assessee about his rights and it is their duty to assist the tax payer in every reasonable way particularly in the matter of claiming and securing reliefs. Further, in the case of B. G. Shirke Construction Technology (P.) Ltd. [2017 (3) TMI 879 - BOMBAY HIGH COURT] the High Court has held that an assessee is entitled to make a claim before Tribunal which was not raised before Assessing Officer at time of filing return of income or by filing a revised return of income. Again, in the case of Karnataka State Co-operative Federation Ltd [2021 (3) TMI 694 - KARNATAKA HIGH COURT] the Karnataka High Court held that assessee's fresh claim before appellate authority is entertainable even when same is not claimed in original return of income nor assessee has filed revised return of income to make such claim. In the case of Abhinitha Foundation (P.) Ltd [2017 (6) TMI 604 - MADRAS HIGH COURT] the Madras High Court held that even if a claim made by assessee-company does not form part of original return or even revised return, it can still be considered by Assessing Officer as well as appellate authorities in case relevant material is available on record. In the case of Sesa Goa Ltd [2020 (3) TMI 793 - BOMBAY HIGH COURT] held that where assessee inadvertently omitted to make claim for deduction under section 10B in respect of two 100 per cent Export Oriented Undertakings, however, all necessary facts for claiming deduction under section 10B were already on record, Commissioner (Appeals) in exercise of his plenary/co-terminus powers, as well as Tribunal, ought to have entertained claim. Accordingly, in our considered view, the assessee is eligible to be taxed at the reduced rate of 10% in respect of the aforesaid capital gains, even if such claim was not made in the return of income. Appeal of the assessee is allowed.
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