TMI Blog2014 (1) TMI 1179X X X X Extracts X X X X X X X X Extracts X X X X ..... set aside – Decided in favour of Assessee. - I.T.A. No. 1037/Mds/2013 - - - Dated:- 18-11-2013 - Dr. O.K. NARAYANAN AND SHRI VIKAS AWASTHY, JJ. For the Appellant : Shri Pawan Kumar Chakrapani, CA For the Respondent : Shri Shaji P. Jacob, Addl. CIT ORDER Per: Vikas Awasthy: The appeal of the assessee is against the order of the Commissioner of Income Tax(Appeals)-V, Chennai dated 28-02-2013 relevant to the Assessment Year (AY) 2008-09. 2. The assessee is a company incorporated under the provisions of the Companies Act, 1956 and is in the business of manufacture and sale of plastic moulded and electronic components for use in telecommunication industry. For the assessment year under reference, the assessee filed its return of income on 29-09-2008 declaring loss of Rs.22,06,78,103/-. The assessee s return of the income was selected for scrutiny and notice u/s. 143(2) of the Income Tax Act, 1961 (herein after referred to as the Act ) was issued to the assessee on 13-08- 2009. During the course of assessment, the assessee claimed further expenses to the tune of Rs.10,40,85,702/- which were erroneously disallowed u/s.37(7) of the Act by the assessee. Thus, the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay of filing simple letter. If there was any error in the return of income, the assessee could have rectified it by filing revised return of income within the period specified under the provisions of the Act. However, the assessee failed to file revised return, to claim alleged additional loss. The claim of the assessee cannot be entertained merely on the basis for simple letter. In order to support his contentions, the DR relied on the judgment of Hon ble Madras High Court in Tax Case Appeal No. 344 of 2005 in the case of CIT Vs. M/s. Shriram Investments decided on 16-06-2011. 5. Both sides heard. We have perused the order of the authorities below as well as the decisions relied on by the representatives of both the sides. It is an admitted fact that the assessee has not filed revised return of income to claim additional loss of Rs.10,40,85702/- which was alleged to be erroneously not claimed at the time of filing of original return of income. During the course of assessment proceedings, the assessee filed revised computation of income to claim aforesaid additional loss. The contention of the Revenue is that without filing revised return of income within due date as prescribed u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgments of the Hon ble Supreme Court of India in the case of Goetze India Limited Vs. CIT (supra) and the judgment in the case of National Thermal Power Co. Ltd., Vs., CIT reported as 229 ITR 383 and various other judgments. The findings of the Hon ble High Court on the issue are as under : 18. In the case before us, the Commissioner of Income-tax (Appeals) and the Tribunal have held the omission to claim the deduction of Rs. 40 lakhs to be inadvertent. Both the appellate authorities held, after considering all the facts, that the assessee had inadvertently claimed a deduction of Rs. 20 lakhs paid after the end of the year in question. We see no reason to interfere with this finding. We see less reason to interfere with the exercise of discretion by the appellate authorities in permitting the respondent to raise this claim. That the respondent is entitled to the deduction in law is admitted and, in any event, clearly established. In the circumstances, the respondent ought not be prejudiced. 19. The orders of the Commissioner of Income-tax (Appeals) and the Tribunal clearly indicate that both the appellate authorities had exercised their juris-diction to consider the addi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wed the Department's appeal. In the Supreme Court, the assessee relied upon the judgment in National Thermal Power Co. Ltd. v. CIT [1998] 229 ITR 383 (SC) contending that it was open to the assessee to raise the points of law even before the Tribunal. The Supreme Court held (page 324 of 284 ITR): "4. The decision in question is that the power of the Tribunal under section 254 of the Income-tax Act, 1961, is to entertain for the first time a point of law provided the fact on the basis of which the issue of law can be raised before the Tribunal. The decision does not in any way relate to the power of the Assessing Officer to entertain a claim for deduction otherwise than by filing a revised return. In the circum-stances of the case, we dismiss the civil appeal. However, we make it clear that the issue in this case is limited to the power of the assessing authority and does not impinge on the power of the Income-tax Appellate Tribunal under section 254 of the Income-tax Act, 1961. There shall be no order as to costs." (emphasis supplied). 23. It is clear to us that the Supreme Court did not hold anything contrary to what was held in the previous judgments to the effect t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is 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 Department. Although, therefore, the responsibility for claiming refunds and reliefs rests with assessee on whom it is imposed by law, officers should: (a) draw their attention to any refunds or reliefs to which they appear to be clearly entitled but which they have omitted to claim for some reason or other ; (b) freely advise them when approached by them as to their rights and liabilities and as to the procedure to be adopted for claiming refunds and reliefs." In the instant case, the assessee had filed revised computation of income before the Assessing Officer at the time of assessment proceedings claiming expenditure which were erroneously disallowed u/s.37(7) while filing the return of income. In our considered opinion, the assessee has not filed any fresh claim. It is not the case where the assessee is claiming additional deduction or exemption. In the Income Tax Act, deductions and exemptions are dealt with in separate chapters of the Act and have different connotation. The assessee is only claiming expenditure whi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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