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2016 (6) TMI 599

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..... filed. In any case, when the material was already on record, the CIT(Appeals) and the Tribunal could have entertained such a claim. - TAX APPEAL NO. 207 of 2016 With TAX APPEAL NO. 208 of 2016 - - - Dated:- 9-6-2016 - MR. AKIL KURESHI AND MR. A.J. SHASTRI, JJ. FOR THE APPELLANT : MR SUDHIR M MEHTA, ADVOCATE FOR THE OPPONENT : MR B S SOPARKAR, ADVOCATE ORAL ORDER (PER : HONOURABLE MR.JUSTICE AKIL KURESHI) 1. Tax appeals are filed by the Revenue raising similar question. We may notice facts from Tax Appeal No.207/2016. For the assessment year 2004-2005, the assessee had filed return of income on 28.10.2004 declaring total income of ₹ 12,95,33,579/-. In the return, the assessee had claimed expenditure of S .....

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..... ned that BGEHL has provided Cairn with a guarantee to that effect. In another agreement dated 30/5/01 the calculation of this guarantee amount has been clarified. In the calculation formula, it is mentioned that it will be equal to 1% of the annual sum guaranteed. However, no details of annual sum guaranteed appear have been filed by the assessee. With a View to verify this, the assessee was time and again requested to submit the complete details. Till the date of finalisation of the assessment proceedings the assessee has not submitted further details. As regard commission, the calculation formula has been provided in the agreement dated 30/5/01 at Clause4.3( a) (ii) to the agreement. On perusal of this clause, it is seen that the sum o .....

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..... before the A.O. and details and evidences have not been filed before the AO and further I find from whatever details have been filed before me the necessity of incurring the expenses is not established and also it is not established that services have been rendered by the payees, the claims made by the appellant are dismissed. Further the addition of ₹ 1,11,330/-made by the Assessing Officer is found to be proper and so the same is upheld. 4. The assessee carried the matter in further appeal before the Tribunal. The Tribunal allowed the appeal and observed as under : We find that the contention of the assesses is that the expenditure was required to be incurred under a contract, therefore being a contractual liability, the ass .....

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..... ter rejecting such a contention held that the assessee was entitled to claim of expenditure but placed the matter back before the Assessing Officer for verification of records. 7. It is true that in Goetz (India) Ltd.(supra), the Supreme Court held that the Assessing Officer cannot entertain a fresh claim without assessee filing revised return. However, in the same breath, the Supreme Court also held that such limitation would not apply to the appellate Commissioner. This is how judgement of Supreme Court in case of National Thermal Power Company Ltd. v. CIT reported in (1998) 229 ITR 383 was distinguished. Division Bench of this Court in case of Commissioner of Incometax v. Mitesh Implex reported in (2014) 367 ITR 85(Guj) had occa .....

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..... e assessing officer. Income Tax proceedings are not strictly speaking adversarial in nature and the intention of the Revenue would be to tax real income. 39. This is primarily on the premise that if a claim though available in law is not made either inadvertently or on account of erroneous belief of complex legal position, such claim cannot be shut out for all times to come,merely because it is raised for the first time before the appellate authority without resorting to revising the return before the assessing officer. 40. Therefore, any ground, legal contention or even a claim would be permissible to be raised for the first time before the appellate authority or the Tribunal when facts necessary to examine such ground, contention or .....

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