TMI Blog2014 (2) TMI 1295X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee. The second point made by the Commissioner that the Assessing Officer did not make any enquiries with regard to entitlement of assessee to the deduction u/s 80P of the Act is also, in our view, not justified having regard to the material on record. In this context, A.Y. 2007-08 we find that in the course of assessment proceedings, assessee gave details of the incomes earned as also the claim of deduction u/s 80P(2)(d) of the Act in its communication which is on record. Evidently, the claim of the assessee was allowed by the Assessing Officer after being satisfied with the explanation of the assessee, though the discussion in the assessment order is quite brief on the aspect. So however, the decision of the Assessing Officer cannot be held to be erroneous simply because in the assessment order he has not made an elaborate discussion in this regard in terms of the parity of reasoning laid down by the Hon'ble Bombay High Court in the case of CIT vs. Gabriel India Ltd.(1993 (4) TMI 55 - BOMBAY High Court) - Decided in favour of assessee - ITA No.443/PN/2012 - - - Dated:- 28-2-2014 - SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER AND SHRI G.S. PANNU, ACCOUNTANT MEMBER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd to assessee's entitlement of deduction u/s 80P of the Act and thus the deduction u/s 80P of the Act was allowed by the Assessing Officer without verification. Considering the aforesaid two errors, the Commissioner has set- aside the assessment order dated 18.12.2009 and has directed the Assessing Officer to make an assessment afresh and examine the assessee's entitlement of deduction u/s 80P of the Act in the light of the judgement of the Hon'ble Supreme Court in the case of Goetze (India) Ltd. vs. CIT, (2006) 284 ITR 323 (SC). The judgement of the Hon'ble Supreme Court in the case of Goetze (India) Ltd. (supra) has been referred by the Commissioner for the proposition that the Assessing Officer cannot entertain a fresh claim of deduction u/s 80P of the Act which was not made in the return of income, A.Y. 2007-08 without assessee having filed a revised return of income. Against the aforesaid decision of the Commissioner, assessee is in appeal before us. 4. In the proceedings before us, the learned counsel for the assessee has furnished a Paper Book containing copies of the notice issued by the Commissioner u/s 263; the reply of the assessee to the Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ', after allowing deduction under section 80P(2)(a)(i) and section 80P(2)(d) of the Act is erroneous as no such claim of deduction was made by the assessee in the return of income. 9. On this aspect, the plea of the assessee before the Commissioner as well as before us is to the following effect. According to the learned counsel, the return of income was filed with the help of the software and that the deduction u/s 80P of the Act was duly claimed at the time of preparing the return of income. A reference was invited to the copy of computation of total income annexed with the return of income, which clearly reflected the claim of deduction; secondly, a copy of acknowledgement of filing of return has been referred to show that the relevant deduction under Chapter VIA, namely, section 80P was claimed. It was pointed out that the return of income generated by the software did not show the claim of deduction u/s 80P of the Act and therefore, it was not appearing in Form No. ITR-V, but having regard to the computation of income annexed with the return of income as also acknowledgement of the return of income showed that assessee claimed deduction u/s 80P of the Act. The aforesaid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he I.T. Act, 1961 . A perusal of the assessment order does not indicate the absence of assessee's claim for exemption u/s 80P of the Act at the time of assessment proceedings. Moreover, we find that after the receipt of the return of income on 31.10.2007, the Assessing Officer has made an order-sheet noting dated 19.09.2008 in the assessment folder. In terms of such order-sheet noting, the case of the assessee has been selected for scrutiny assessment and a notice u/s 143(2) of the Act was directed to be issued. The reason recorded by the Assessing Officer to select the case for scrutiny is Dedcution claimed under chapter VI-A exceeds ₹ 25 lacs . Ostensibly, the Assessing Officer could not have recorded the aforesaid position unless assessee's claim for deduction under chapter VI-A, namely, section 80P of the Act was before him. The circumstances explained by the assessee as well as the aforesaid order-sheet entry recorded by the Assessing Officer on 19.09.2008 clearly reflects that claim of the assessee for deduction u/s 80P of the Act was very much before the Assessing Officer even before he picked-up the return of income of the assessee for a scrutiny assessment u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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