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2021 (10) TMI 206 - AT - Income TaxDisallowance u/s 40(a)(ia) - treating the cost of purchase of milk and quality maintenance charges paid to the members society as the rent income u/s 194-I - assessee raised alternative plea that payee has included the impugned receive in their income and has furnished certificate of chartered accountant that impugned receipt is included in the total receipt of the Dudh Utpadak Sahakari Mandli and they have paid tax on it. - HELD THAT:- AO has not clarified in assessment order whether the information shared to him by ITO Ward-2 Bardoli or was a result or was a result of his investigation. We note that the contention of assessee throughout the proceedings that amount of ₹ 7,48,492/- is paid on account of cost of raw material and there is no contract or agreement between the assessee and the Dudh Utpadak Sahakari Mandli. Alternative plea of the assessee was rejected by Ld. CIT(A) at threshold limit without examining the fact. The Ld. CIT(A) noted that assessee has not made any claim before the Assessing Officer by filing relevant documents. It is settled law that no fresh relief can be raised before the Assessing Officer except by filing revised return of income as has been held in Goetze India Limited [2006 (3) TMI 75 - SUPREME COURT]. However, these restrictions are not applicable on appellate authority as held in case of CIT Vs Pruthvi Broker Shareholder Limited [2012 (7) TMI 158 - BOMBAY HIGH COURT] - scope of application under section 154 is limited for rectification of mistake in the order which is apparent. In our view the Ld. CIT(A) was not justified in rejecting the alternative claim of the assessee. Considering the fact that appellate authority are entitled to examine and admit the additional ground of appeal. Therefore the additional / alternative plea made by assessee is admitted by way of additional ground. On merit of the additional / alternative claim, we find that assessee has field certificate of chartered accountant certifying that the recipient of the impugned receipt has included the said receipt in their gross income and had paid tax thereon. Therefore, prima facie we are of the opinion that no disallowance in such circumstances is warranted against the assessee, however, we direct the Assessing Officer to verify the fact that if the recipient has included the impugned receive in their gross total income and paid tax then no disallowance be made against the assessee. - Decided against revenue.
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