TMI Blog2010 (1) TMI 887X X X X Extracts X X X X X X X X Extracts X X X X ..... G.E. Veerabhadrappa, Rajpal Yadav, JJ. Anusha Khurana, DR for the Appellant Piyush Kaushik, AR for the Respondent ORDER Rajpal Yadav: 1. The revenue is in appeal before us against the order of learned CIT(Appeals) dated 30.4.2009 passed for assessment year 2006-07. The solitary grievance of the revenue is that learned CIT(Appeals) has erred in allowing the claim of deduction under sec. 80-I/80-IB of Rs.1,64,53,104. 2. The brief facts of the case are that the assessee has filed its return of income on 31.10.2006 declaring the income at nil. The Assessing Officer had issued notice under sec. 143(2) which was served upon the assessee on 27th July, 2007. A notice under sec. 142 along with questionnaire was also served upon the assessee. On scrutiny of the accounts, Assessing Officer found that assessee has claimed a deduction of Rs.1,64,53,104 under sec. 80-I of the Income-tax Act, 1961. Assessing Officer on an analysis of the provisions and the facts of the assessee's case arrived at the conclusion that assessee is not entitled for deduction under sec. 80-I rather it is entitled to claim deduction under sec.80-IB of the Act. When this fact was confront ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... particularly those of the jurisdictional High Court, it is very clear that the appellant's claim of deduction u/s.80-IB of the Act, by furnishing the audit report in Form No.10CIB as per section 80-IB(13) read with section 80-IA(7) of the Act before framing of assessment, will have to be duly accepted. 6.16 Having settled this issue, we now proceed to examine whether the deduction u/s.80-IB of the Act is available to the appellant on merits of the case. It is observed that while the Assessing Officer has laid much stress on the legal issues, he has not mentioned anything on this aspect in the Assessing Officer. The Assessing Officer was, accordingly, asked to furnish his report in the matter vide this office letter dated 20.3.2009, as said earlier. The Assessing Officer has, however, not made any comments on this issue in his remand report on the ground that details have been called for from the assessee. The learned Authorised Representative on the other hand has submitted that the details have already been furnished vide their replies dated 13.11.2008 and 5.12.2008 filed during the course of the assessment proceeding and letter dated 25.3.2009 filed in the remand proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the assessee, on the strength of Hon'ble Supreme-Court's decision in the case of Goetze India Ltd. (supra). Learned CIT(Appeals) ought to have not interfered in the order of the Assessing Officer. On the other hand, learned counsel for the assessee relied upon the order of the learned CIT(Appeals). He pointed out that Learned First Appellate Authority has considered all the aspects before upholding the claim of assessee. He further pointed out that the ITAT in the case of Chicago Pneumatic India Ltd. vs. DCIT reported in 15 SOT 252 has examined almost similar situation. The case of the assessee is fully covered by the order of the ITAT in this case. The ITAT has considered a Circular of the Board issued in 1955. 4. We have considered the rival contentions and gone through the records carefully. The ITAT in the case of Chicago Pneumatic India Ltd. (supra) has considered almost similar situation, Referring to the Board's Circular of 1955, ITAT has observed that it is the duty of the Assessing Officer to assess the correct income of an assessee and for this purpose, the Assessing Officer may grant relief/refund suo-moto to an assessee. The findings of the ITAT in paragraph 49 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not being uniformly followed. 2. Complaints are still being received that while Income-tax Officers are prompt in making assessments likely to result into demands and in effecting their recovery, they are lethargic and indifferent in granting refunds and giving reliefs due to assessees under the Act. Dilatoriness or indifference in dealing with refund claims (either under section 48 or due to appellate, revisional, etc. orders) must be completely avoided so that the public may feel that the Government are actually prompt and careful in the matter of collecting taxes and granting refunds and giving reliefs. 3. Officers of the Department must not take advantage of ignorance of an assessee as to his rights. It is one of their duties to assist a taxpayer in every reasonable way, particularly in the matter of claiming and securing reliefs and in this regard the Officers should take the initiative in guiding a taxpayer where proceedings or other particulars before them indicate that some refund or relief is due to him. This attitude would, in the long run, benefit the department for it would inspire confidence in him that he may be sure of getting a square deal from the departme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claiming refunds and reliefs rests with the assessee. AS IMPOSED BY LAW even then the Board has directed the officers to draw the attention of the assessees in respect of any refunds or reliefs to which they are eligible, which they have not claimed for some reason or the other. The Board has also given few examples in this regard and has specifically clarified that, these examples are not exhaustive. Further, the Board also issued Circular F. No. 81/27/65-IT(B), dated 18th May, 1965 defining the duties of P.R.Os. in providing assistance to the public. In this circular, the Board has also advised the P.R.O. to visit the Government/commercial establishments to provide them assistance in filing correct returns and making eligible claims. These Circulars issued by the Board almost 4-5 decades before cast a duty on the assessing authorities to collect only the legitimate tax. Starting from late 1980s, the Government has focussed as voluntary compliance by the assessees and, therefore, Government has reduced the number cases selected for compulsory scrutiny and has also reduced the tax rates. This policy of the Government has resulted into higher tax revenues and simplification of laws. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer is bound to assess the correct income and for this purpose, the Assessing Officer may grant reliefs/refunds suo mote, or can do so on being pointed out by the assessee in the course of assessment proceedings for which assessee has not filed revised return, although, as per law, the assessee is required to file the revised return. Having. stated so, in our view, the learned CIT(A), having co-terminus powers with the powers of Assessing Officer and the fact that appellate proceedings are the continuation of original proceedings, should have entertained the claim of assessee and allowed if other conditions of the provisions of the law were satisfied. In this view of the matter, we accept both the grounds of the assessee and direct the learned CIT(A) to consider the claim of the assessee at the revised figures on merits and decide the same according to the provisions of sections 80HH and 80-I of the Act after hearing the assessee. Thus, this ground of the assessee stands accepted". 5. The lapse on the part of the assessee is in respect of wrong mentioning of section that should not be construed in such a way which deprived an assessee from the legitimate deduction. Learned Fi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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