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TMI Blog2014 (3) TMI 768X X X X Extracts X X X X X X X X Extracts X X X X ..... t the assessee has shown income from other sources in form of interest on FDs, interest on bonds, dividend on mutual funds, rental income etc. Further, the assessee has shown deemed capital gain u/s.11 (1B) of the Income Tax Act, 1961 of Rs.19.67 crores and has paid tax @20%. During the course of assessment proceedings the assessee contended that the consideration received in previous year relevant to the assessment year under consideration has been utilised for acquisition of the capital assets and in this context for A.Y. 2008-09 the section 11(1B) has been erroneously applied. The assessee accordingly requested the Assessing Officer to rectify the error and compute the income. 3. However, the Assessing Officer did not accept the above c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... carefully considered the facts of the case and the law is are apparent from the records. The appellant is a trust enjoying exemption of income computable u/s.11 to 13 of the Income Tax Act. From the perusal of the assessment order, it is apparent that the Assessing Officer was satisfied about the claim of the appellant that the income declared in the return u/s.11(1B) was done erroneously, as on this claim made by the appellant during assessment, no adverse finding has been made. He has only harped on the decision of the Hon'ble Supreme Court given in the case of Goetze India Ltd. to say that the claim cannot be entertained as the same was not made through a revised return within the time available u/s 139(5). As against that the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Assessing Officer was not entertaining a claim for deduction but was to appreciate whether the receipt is an income or not. If an amount is not a taxable income, the same can become so only because it was included erroneously in the return. Therefore, in the facts of the case, I am of the opinion that the Assessing Officer has erred in not accepting the claim of the appellant and therefore, Ground No.1 is treated as allowed". 5.1 Aggrieved with such order of the CIT(A) the Revenue is in appeal before us with the following grounds : "1. On the facts and in the circumstances of the case and in law, the Ld.CIT(A) erred in allowing the claim of assessee trust u/s.11(1) of the Act which was not originally claimed in return of income and audi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e original return and not supported by the revised return, is admissible? (C) Whether, on the facts and in the circumstances of the case, the Hon'ble Tribunal, in law, was right in not appreciating the fact that the Assessing Officer has no power to entertain a claim made by an assessee after filing a original return otherwise than by filing a revised return". 6.2 We find the Hon'ble High Court after thoroughly discussing the issue held as under : "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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conclusion that the error in not claiming the deduction in the return of income was inadvertent cannot be faulted for more than one reason. It is a finding of fact which cannot be termed perverse. There is nothing on record that militates against the finding. The appellant has not suggested, much less established that the omission was deliberate, mala fide or even otherwise. The inference that the omission was inadvertent is, therefore, irresistible. It was then submitted by Mr. Gupta that the Supreme Court had taken a different view in Goetze (India) Ltd. v. CIT [2006] 284 ITR 323 (SC); [2006] 157 Taxman 1. We are unable to agree. The decision was rendered by a Bench of two learned judges and expressly refers to the judgment of the Bench ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... miss 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 Incometax Appellate Tribunal under section 254 of the Income-tax Act, 1961. There shall be no order as to costs." (emphasis supplied) 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 that even if a claim is not made before the Assessing Officer, it can be made before the appellate authorities. The jurisdiction of the appellate authorities to entertain such a claim has not been negated by the Supreme Court in this judgment. In fact, the Supreme Court made it clear that the issue in the case was l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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