TMI Blog2006 (5) TMI 124X X X X Extracts X X X X X X X X Extracts X X X X ..... The appellant has brought to the notice of the learned Commissioner various decisions of High Courts and Supreme Court that the appellant is not prevented from making afresh claim before the appellate authority Popular Automobiles v. CIT 187 ITR 86 (Ker.), Sri Shankar Khandasari Sugar Mills v. CIT 193 ITR 669, Jute Corporation of India Ltd. v. CIT 187 ITR 688 (SC), Union Coal Co. Ltd. v. CIT 70 ITR 45, CIT v. Kerala State Co-operative Marketing Federation Ltd. 193 ITR 624 (Ker.). 3. The learned CIT(A) has rejected the claim on the ground that the appellant has not satisfied that the condition that he was prevented by reasonable cause in not raising the issue before the Assessing Officer. The learned CIT(A) also observed that the certific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. CIT [1968] 70 ITR 45 (Cal.); (e) CIT v. Kerala State Co-op. Marketing Federation Ltd [1992] 193 ITR 624 (Ker.). After considering the submissions of the authorized representative of the assessee in the light of the facts of the case, the first appellate authority after expatiating over the issue in paras 5, 6, 7 and 8 has observed at Para 9, as under: "On consideration of the facts of the case, I hold that the fresh ground raised regarding deduction under section 80HHC cannot be admitted for two reasons: (i) The appellant has not satisfied that the condition that he was prevented by reasonable cause in not raising the issue before the Assessing Officer. I have already referred to the fact that the Assessing Officer had given amp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT(A) as his submissions. He submitted that the assessee had filed the return of income for the assessment year 1999-2000 on 31-12-1999 and the assessment was completed under section 143(1) on 31-1-2000. Notice under section 143(2) was issued posting the case to 16-11-2000. The assessee was given opportunities for hearing on 23-2-2001, 7-3-2001, 7-6-2001, 10-10-2001, 17-1-2002 and 21-2-2002 and the assessment was finally completed on 27-2-2002. Thus the records show that the Assessing Officer had not completed the assessment in haste. He had given several opportunities to the appellant to present his case and the case was posted for hearing as many as on 7 occasions. The assessee could have very well raised this issue of deduction under s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shown". The Assessing Officer, though an Executive Officer in the administration of the Act, the function of the Assessing Officer is fundamentally quasi-judicial. The taxing authorities should exercise quasi-judicial powers, in doing so he must Act in a fair and not in a partisan manner. Being a quasi-judicial authority, the Assessing Officer is duty bound to determine the correct tax payable by the assessee. In arriving at such correct tax, the Assessing Officer is duty bound to allow the deductions and exemptions available to the assessee in accordance with law and disallow the claims, which are not eligible as per law. It is not fair and proper to argue and presume that the assessee should be aware of all the provisions of the complex n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f. 8. The reliance of the learned DR on the decision of the Apex Court in the case of Stepwell Industries Ltd. for the proposition that a latter decision should prevail over the earlier decision of the same Court, we have to state that even though Stepwell Industries Ltd.'s case is a latter decision, it was delivered by a Division Bench whereas the decision in the case of National Thermal Power Corpn. Ltd was rendered by a Bench consisting of three Judges. In such circumstances, we are of the considered opinion that the judgment of the larger Bench of the very same Court should prevail over the judgment of the Division Bench. Hence, the contention of the learned DR that the Stepwell Industries Ltd's case has overruled the NTPC Ltd's case, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts and circumstances of the case and the submissions made by both the sides before us, we are of the view that this is a fit and proper case for restoring the issue back to the file of the Assessing Officer with a direction to decide the issue of claim of deduction under section 80HHC which was raised before the CIT(A) for the first time by the assessee, in accordance with law, of course, after giving effective opportunity of hearing to the assessee. The assessee is also directed to co-operate with the Assessing Officer by providing necessary details that would be required by the Assessing Officer for deciding the issue. 10. In the result, the appeal of the assessee is allowed for statistical purposes only. - - TaxTMI - TMITax - Inco ..... X X X X Extracts X X X X X X X X Extracts X X X X
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