TMI Blog2016 (5) TMI 1102X X X X Extracts X X X X X X X X Extracts X X X X ..... ents and Hon'ble High Courts, we are inclined to dismiss the grounds raised by the Revenue. - Decided in favour of assessee - I.T.A. No. 338/Del/2014 - - - Dated:- 3-5-2016 - Shri S. V. Mehrotra, Accountant Member And Smt. Beena Pillai, Judicial Member For the Appellant : Shri M K Jain, Sr. DR For the Respondent : Shri R. P. Basia, CA ORDER Per Beena Pillai, JM: The present appeal has been filed by the revenue against the order of Ld. CIT(A) Rohtak vie order dated 23.10.2013 for the Assessment Year 2010-11 on the following grounds of appeal: 1. On the facts and in the circumstances of the case, the Ld. CIT(A) has erred in cancelling order of the A.O. 2. On the facts and in the circumstances of the case, CIT(A) has erred in not appreciating the position that order of the AO has been passed by exercising bona-fide legal powers vested in the A.O. 3. On the facts and in the circumstances of the case, CIT(A) has erred in not appreciating the position that the assessee did not make claim of exemption u/s 11 in the return of income. Nor such claim was made by way of revised return of income inspite of the fact that assessee had ample time and opp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1961 in view of the registration granted under section 12A by Commissioner of income tax, Hissar w.e.f. financial year 2009-10. 2.3 The said return of income had been processed by issuing notice under section 143(2) dated 26.09.2011. The Assessing Authority treated the Building Fund and Building Maintenance fund total of ₹ 28,37,500/ - as revenue receipts and added to the income of the assessee. 2.4 The Assessing Officer disallowed the depreciation of ₹ 46,825/- claimed under the pretext that on purchase of Shisham Wood of ₹ 4,68,246/- has not been put to use till the closing of the year. 2.5 The Assessing Officer also disallowed vouchers for a total sum of ₹ 130131/- as related to Vaish Sen Sec. School and not found them genuine as fund of the assessee society are not utilized for the society itself. 3. Aggrieved by the order of the Assessing Officer, the assessee filed appeal before Ld. CIT(A). 3.1 Before Ld. CIT(A), assessee took up an additional ground of allowability of claim of deduction u/s 11 12 of the I.T. Act, 1961, which was originally not considered at the time of filling of return, in view of the fact that its registration u/s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te Corporation of India Ltd. Vs CIT Anr. 88 CTR 66 (S.C.) iii) Kedarnath Jute Manufacturing Company Ltd. Vs CIT 82 ITR 363. iv) CIT Vs Jai Parabolic Springs Ltd. 6 DTR 233 (Del.) (Delhi H.C.). 3.4 Ld. CIT(A) after considering the decisions and judgements relied upon by the Ld. A.R., held as under:- 4.3 It is indeed a question of exercise of discretion whether or not to allow an assessee to raise a claim which was not raised when the return was filed or the assessment order was made. As held by Supreme Court there may be several factors justifying the raising of a new plea in the appeal and each case must be considered on its own acts. However, such cases includes those were the grounds though available when the return was filed or the assessment order was made, was not taken or raised for the reason which the appellant authority may considered valid. In other words, the jurisdiction of appellant authorities to considered a fresh or new ground or claim is not restricted to cases were such a ground did not exists when the return was filed and the assessment order was made. 4.4 In view of the facts discussed above and decisions by various courts and the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... easons; (2) Where an application ahs been made on or after the 1st day of June, 2007, the provisions of section 11 and 12 shall apply in relation to the income of such trust or institution from the assessment year immediately following the financial year in which such application is made. 4.3 Ld. A.R. submitted in its application for exemption u/s 11 12 of the Act that the letter for exemption was issued on 30.03.2010 and the same was applicable for the Assessment Year 2010-11. Ld. A.R. further submitted that the powers of Commissioner (Appeals) u/s 2521(1)(a) is synonymous with the powers of the Tribunal u/s 154 of the Act. He submitted that the decision relied upon by Ld. D.R. in the case of Goetze India Ltd. Vs CIT (supra), the Hon'ble Supreme Court had decided the issue relating to the powers of Assessing Officer for allowing a particular claim. He submitted that the issue before this Bench for the year under consideration in the assessee s case is different vis a vis the issue dealt by Hon'ble Supreme Court in Goetze India Ltd. Vs CIT (supra). Ld. A.R. relied upon the decision of Hon'ble Jurisdictional High Court in the case of CIT Vs Sam Globa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and each case has to be considered on its own facts. The AAC must be satisfied that the ground raised was bona fide and that the same could not have been raised earlier for good reasons. The AAC should exercise his discretion in permitting or not permitting the assessee to raise an additional ground in accordance with law and reason. The same observations would apply to appeals before the Tribunal also. 5.1 The decision in the case of Goetze India Ltd. Vs CIT (supra) has been distinguished in the case of Jai Parabolic Springs Ltd. (Supra) as under: In Goetze (India) Ltd. V s. err [2006] 284 ITR 323 (SC) wherein deduction claimed by way of a letter before the Assessing Officer, was disallowed on the ground that there was no provision under the Act to make amendment in the return without filing a revised return. Appeal to the Supreme Court, as the decision was upheld by the Tribunal and the High Court, was dismissed making clear that the decision was limited to the power of the assessing authority to entertain claim for deduction otherwise than by a revised return, and did not impinge on the power of the Tribunal. 5.2 Hon ble Jurisdictional High Court in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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