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TMI Blog2016 (11) TMI 737X X X X Extracts X X X X X X X X Extracts X X X X ..... 0. The grounds raised by the Revenue per its appeal are as under:- "1. That on the facts and circumstances of e case and in law, the Ld. CIT(A) erred in allowing deduction u/s. 80G of the Act amounting to Rs. 2,50,000/- whereas AO was correct in disallowing the deduction claimed by the assessee. 2. That on the facts and circumstances of the case and in law, the Ld. CIT(A) erred in holding that the assessee's short term capital loss from sale of shares of UIC Udyog Limited was Rs. 2,08,00,000/- without any justification and whereas such loss assessed by the AO at Rs. 1,68,06,400/- was based on and by correctly adopting the break-up value of share as selling price, in the absence of any market price of such shares. 3. That the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... return. So the AO has disallowed the deduction claimed by the assessee u/s 80G. 4. Aggrieved assessee preferred an appeal before CIT(A) who has allowed the deduction claimed by the assessee by observing as under:- "I have considered the Assessment Order and the appellant's submission along with the case laws relied upon. The AO has not allowed deduction u/s 80G for Rs. 2,50,000/- on the ground that the same w s not claimed in the return and was claimed only through the revised computation filed at assessment stage. The AO has relied on Apex Court judgment in Goetz (India) Ltd's case (supra). However, in view of Hyderabad ITAT's judgment in the case of G.V.K. Industries Ltd. Vs. ACIT (supra), Mumbai ITAT judgment in the case of Pradeep Ku ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ITR 323 (SC), it is evident that the making of a new claim if any before the AO is required to be done only by way of filing the revised return of income and not by way of letters or by way of filing revised computation etc. But when comes to the Tribunal or for that matter the CIT(A), who is also not the assessing officer, but who is the appellate authority, assessee does not have to initiate a new claim before them by way of filing the revised return of income. As such the returns or revised returns are filed under the provisions of section 139 of the Act and it is done before the AO and not before the first or second appellate authorities i.e. CIT(A), ITAT or Higher judiciary. Therefore, the CIT(A) is justified in entertaining and adjudi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6,35,200.00 on account of sale of investment in shares. During assessment proceedings, it was observed by the AO that the assessee had purchased 11,66,881 shares of UIC Udyog Ltd on 31/03/2008 for an amount of Rs. 29,17,20,250/- and on the same date it has received 33,119 shares of the same company without any consideration as a consequence of merger of the companies. Thus, the total consideration of 12,00,000 shares was Rs. 29,17,20,250/-. Accordingly the cost of acquisition per share works out at Rs. 243.00 only. Out of the purchased shares assessee sold 1,66,400 shares @ Rs. 125 per share on two different dates i.e. 22/12/2008 and 02/02/2009 for Rs. 2,08,00,000.00. Accordingly the assessee works out the STCL of Rs. 1,96,35,200/- only. Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the break-up value on the basis of the audited figures as on 31/03/2009 which was not available at the time of sale of shares. Considering the submissions of assessee Ld. CIT(A) has allowed the STCL for the total amount of Rs. 1,96,35,200.00 as claimed by the assessee by observing as under: "I have carefully considered the Assessment Order and the submissions of the appellant along with the supporting details/evidences furnished. I agree with the contention of the AR that there is no provision in Income Tax Act, whereby the AO while calculating capital gain, could have substituted the actual sales consideration by adopting break-up value of such shares. It is seen that the AO has not disputed the genuineness and legality of the sale. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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