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2017 (7) TMI 502 - CALCUTTA HIGH COURT

2017 (7) TMI 502 - CALCUTTA HIGH COURT - TMI - Deduction u/s 80GGB - donation made by the assessee to the political parties - claim made first time before the CIT(A) - Power of appellate authority - Held that:- The facts relevant for the purpose of this appeal are that the assessee made donation to political parties. In the return filed by the assessee this was not claimed as a deduction. - There is no conflict between the Gurjargravures Private Ltd. (1977 (11) TMI 1 - SUPREME Court) and Go .....

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stinction between the two authorities eliminating any conflict is that in Gurjargravures Private Ltd. (supra) the competence of the Tribunal to direct the Appellate Assistant Commissioner to entertain a claim not made before the I.T.O was found to be lacking. In Goetze (India) Ltd. (supra) the Supreme Court held that the assessing Authority’s power was limited but not that of the Tribunal in the context of dealing with a claim of the assessee therein not put forward before the Assessing Officer. .....

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g to the assessment year 2005-06. By order dated 9th December, 2012 the appeal was admitted on the following question: (a) Whether in the facts and in the circumstances of the case the Learned Income Tax, Appellate Tribunal erred in law in allowing the deduction under section 80GGB in respect of donation made by the assessee to the political parties. The facts relevant for the purpose of this appeal are that the assessee made donation to political parties. In the return filed by the assessee thi .....

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of total donation of ₹ 2,16,65,864/- (excluding employees contribution) made by the appellant, it has added back on its own to the income disclosed in the return filed on 31.10.2005 and claimed deduction u/s 80G Chapter-VIA only for ₹ 45,82,932/- i.e. 50% of the contribution made by it to Tsuanami Relief Fund. Therefore, the claim of the appellant that the assessing officer has not allowed deduction of political contribution u/s 80GGB of the IT Act, 1961 is found to be factually inc .....

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tled to get deduction u/s80GGB claimed at this stage. Therefore this ground of the appeal is dismissed. The assessee preferred an appeal before the Tribunal which by the impugned order said as follows: 7. We have considered the rival submissions. It is noticed that the Hon ble Supreme Court in the case of Goetze (India) Ltd. (refer to supra) has held that the appellate authority being the tribunal did have the powers to direct the Assessing Officer to accept the claim of assessee, though the sam .....

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of the Supreme Court in the case of Jute Corporation of India Ltd. Vs. CIT reported in (1991) 187 ITR 688 (SC) to the portion in that judgment as extracted below: The next question which arises for consideration now is as to what order should be passed in the present circumstances. In view of the findings recorded by us, ordinarily, we should direct the High Court to call for the statement of case from the Tribunal and thereupon decide the matter afresh, but this procedure would be time consumi .....

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ecessary, it may remand the matter to the Appellate Assistant Commissioner (now Deputy Commissioner of Appeals) for rehearing. The appeal is, accordingly, disposed of. There will be no order as to costs. She also relied on another decision of the Supreme Court in the case of the Additional Commissioner of Income Tax, Gujarat vs. Gurjargravures Private Ltd. reported in (1978) 111 ITR 1 to submit that in similar facts the Supreme Court held that it was not competent for the Tribunal to hold that t .....

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alaxmi Sugar Mills Co. Ltd. reported in (1986) 160 ITR 920 (SC) in which, inter alia, the following was said. In the second place, there is a duty cast on the Income tax Officer to apply the relevant provisions of the Indian Income tax Act for the purpose of determining the true figure of the assessee s taxable income and the consequential tax liability. Merely because the assessee fails to claim the benefit of a set-off, it cannot relieve the Income tax Officer of his duty to apply section 24 i .....

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ssessing authority and does not impinge on the power of the Income tax Appellate Tribunal under section 254 of the Income tax Act, 1961. There shall be no order as to costs. The similarity on facts between the case at hand and the assessee in Goetze (India) Ltd. (supra) is that the respective deductions were not claimed before the Assessing Officer. In this case the CIT(A) dismissed the appeal of the assessee following Goetze (India) Ltd. (supra) in which the Supreme Court had declared that the .....

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tted, such direction meant that the deduction was not allowed, we see the direction as being one to consider the merits of the deduction and not the deductibility itself. The facts in Gurjargravures Private Ltd.(supra) were that the assessee therein had not claimed exemption under section 84 before the I.T.O and the assessment was completed accordingly. The assessee then appealed to the Appellate Assistant Commissioner and one of the grounds of appeal was that the I.T.O had erred in not giving t .....

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te Assistant Commissioner should have entertained the question of relief u/s 84, and to direct the income tax officer to allow necessary relief? The Supreme Court in answering the question raised before the High Court said, inter alia, as follows: …….We are not here called upon to consider a case where the assessee failed to make a claim though there was evidence on record to support it, or a case where a claim was made but no evidence or insufficient evidence was adduced in suppor .....

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