TMI Blog2013 (10) TMI 1366X X X X Extracts X X X X X X X X Extracts X X X X ..... made by way of a letter during the course of assessments and not in the return of income. At the time of hearing, the appellant has preferred Additional Grounds of Appeal re-quantifying the claim for assessment years 2007-08 and 2008-09 in the event of similar claims not being found exigible for assessment years 2003-04 and 2006-07. In order to enable the Assessing Officer to verify the workings of the claim for assessment years 2007-08 and 2008-09, we restore the matter back to the file of the Assessing Officer. The Assess1in3g Officer shall examine the working of the claim made by the assessee, including the revised workings consequent to non-admission of similar claim for assessment years 2003-04 and 2006-07, and thereafter allow the appropriate claim as per law. Needless to say, the Assessing Officer shall allow the assessee a reasonable opportunity of furnishing appropriate details in support of the claim and only thereafter the Assessing Officer shall adjudicate it as per law and re-compute the total income accordingly for the assessment years 2007-08 and 2008-09. - ITA Nos. 727 to 730/PN/2012 - - - Dated:- 31-10-2013 - SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER AND ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ained by the CIT(A), is the crux of the dispute in the captioned four appeals preferred by the assessee before us. 5. The objections of the Revenue to the assessee s claim can be understood as follows. Firstly, as per the Revenue, such claim could not be entertained in an assessment contemplated u/s 153A r.w.s. 143(3) of the Act because the said claim was not made in the return of income filed originally u/s 139(1) of the Act. As per the Revenue, an assessment u/s 153A of the Act was not for the benefit of the assessee, and therefore any such income which has been offered in the return of income originally filed u/s 139(1) of the Act, could not be considered for exclusion in an assessment finalized u/s 153A r.w.s. 143(3) of the Act, which is a pos3t -search assessment. According to the Revenue, the provisions of section 153A of the Act have been introduced to make assessment/reassessment in cases where a search has been carried out u/s 132 of the Act and therefore the scope of an assessment u/s 153A of the Act should be restricted to the assessment or reassessment of income based on the material and evidence found during the search and seizure action. 6. On this aspect, the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the course of original assessment; and, (ii) undisclosed income or property discovered in the course of search. 7. In this background, we have heard the rival submissions. The learned Departmental Representative has primarily emphasized that in a post-search assessment to be carried out u/s 153A of the Act, a fresh claim or relief, which was hitherto not claimed in the return of income originally filed u/s 139(1) of the Act cannot be entertained because post-search assessment proceedings are not for the benefit of the assessee but only for the benefit of the Revenue. 8. The learned counsel for the assessee pointed out that the aforesaid proposition canvassed by the Revenue is to be applied only in relation to the assessments to be made u/s 153A which pertain to the years for which the original assessments have been concluded but in so far as the assessments relating to the assessment years which are pending on the date of initiation of search and which abate because of the second proviso to section 153A of the Act, assessee shall be entitled to make fresh claims also. 9. We have carefully considered the rival submissions. In this case, search u/s 132(1) of the Act was carr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cuments found in the course of search but not produced in the course of original assessment or any undisclosed income or property discovered in the course of search. At the time of hearing, the Ld. Counsel for assessee fairly conceded the position that impugned claim relating to exclusion of income on account of retention money does not fall in the aforesaid category and thus, it is beyond the scope and ambit of an assessment envisaged u/s 153A(1)(b) of the Act for assessment years 2003-04 and 2006-07. Therefore, on this point itself, we uphold the stand of the Revenue for assessment years 2003-04 and 2006-07 in denying assessee s claim for excluding income on account of retention money. 11. Accordingly, the appeals of the assessee for assessment years 2003-04 and 2006-07 are dismissed. 12. Now, in so far as the assessments for assessment years 2007-08 and 2008-09 are concerned, the original assessments were pending on the date of initiation of search, and the same stand abated in terms of the second proviso to section 153A(1) of the Act. Following the reasoning laid down in the case of All Cargo Global Logistics Ltd. (supra), in so far as assessment years 2007-08 and 2008-09 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficer not only acquires jurisdiction to make additions based on the incriminating material but also retains the original jurisdiction, as explained by the Special Bench of Tribunal in the case All Cargo Global Logistics Ltd. (supra). Thus, the ensuing assessments u/s 153A(1)(b)of the Act for assessment years 2007-08 and 2008-09 would enable the Assessing Officer to consider the impugned claim which has been justifiably made by the assessee. Considering the entirety of circumstances and in law, we, therefore, hold that in so far as the assessments for the assessment years 2007-08 and 2008-09 are concerned, 8t he income-tax authorities erred in not entertaining the impugned claim of the assessee merely because it was made in the course of an assessment u/s 153A(1)(b) of the Act and was not made in the returns of income originally filed u/s 139(1) of the Act. 14. For the assessment years 2007-08 and 2008-09, another objection raised by the Revenue is to the effect that the claim was not made in the return of income filed in response to notice issued u/s 153A(1)(a) of the Act, but was submitted by way of a letter during the assessment proceedings and therefore following the decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndia) Ltd. (supra) does not impinge on the powers of the appellate authorities to entertain a fresh claim which was hitherto not preferred by the assessee in the return of income. In fact, the Hon ble Delhi High Court in the case of CIT v. Jai Parabolic Springs Ltd. 306 ITR 42 (Del) supports the proposition that the decision of the Hon ble Supreme Court in the case of Goetze (India) Ltd. (supra) was limited to the power of the Assessing Officer to entertain claim for deduction otherwise than by a revised return and does not put fetters on such powers of the appellate authorities. 16. On the basis of aforesaid, it is sought to be made out that the claim of the assessee ought to have been entertained by the lower authorities and decided on its merits. 17. On the other hand, the learned Departmental Representative appearing for the Revenue has contended that the lower authorities were justified in not entertaining the impugned claim as it was a fresh claim made only during the assessment proceedings and not in the return of income. 18. We have carefully considered the rival submissions. The Hon ble Supreme Court in the case of Goetze (India) Ltd. (supra) opined that a fresh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. (supra) in support of the said proposition. Of course, the claim was not reflected in the actual computation of income in the absence of its quantification. During the course of assessment proceedings, assessee not only quantified its claim year-wise but also explained the factual matrix of the claim based on the relevant clauses of the contracts with various contractees/customers, as is evident from copy of assessee s communication to the Assessing Officer placed in the paper Book at pages 3-6. In this factual background, can it be said that the assessee made a fresh claim during the assessment proceedings so as to fall within the purview of the ratio laid down by the Hon ble Supreme Court in the case of Goetze (India) Ltd. (supra)? In our view, the fact situation in the present case is qualitatively different than that considered by the Hon ble Supreme Court in the case of Goetze (India) Ltd. (supra). Ostensibly, the assessee company made a claim for excluding income on account of retention money in the return of income itself, though the quantification was absent, and the actual quantification of such claim was made during the assessment proceedings; thus, substantively sp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon ble Bombay High Court in the case of Associated Cables P. Ltd. (supra). The assessee has also furnished the year-wise working of the claim of excluding income on account of retention money for the assessment years in question. Such details are placed in the Paper Book filed before us and it has been asserted that the same was also available on the record of the authorities below. Ostensibly, the Assessing Officer as well the CIT(A) have not examined the merits of the claim because the same was rejected at the threshold itself. At the time of hearing, the appellant has preferred Additional Grounds of Appeal re-quantifying the claim for assessment years 2007-08 and 2008-09 in the event of similar claims not being found exigible for assessment years 2003-04 and 2006-07. In order to enable the Assessing Officer to verify the workings of the claim for assessment years 2007-08 and 2008-09, we restore the matter back to the file of the Assessing Officer. The Assess1in3g Officer shall examine the working of the claim made by the assessee, including the revised workings consequent to non-admission of similar claim for assessment years 2003-04 and 2006-07, and thereafter allow the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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