TMI Blog2017 (10) TMI 872X X X X Extracts X X X X X X X X Extracts X X X X ..... on 263, the assessee raised an alternative claim for the benefit of Section 10A. The Commissioner did not examine that plea and on the other hand, directed the Assessing Officer to withdraw the exemption under Section 10B. It was this order which was challenged by the assessees in the appeals filed by them before the Tribunal. Such an appeal filed by the assessee is liable to be considered by the Tribunal exercising its power under Section 254 of the Act which obliged the Tribunal to consider the appeal and pass such orders thereon as it thinks fit. It was this power of the Tribunal which was considered by the Apex Court in NTPC's case [1996 (12) TMI 7 - SUPREME Court] which held that where the Tribunal is only required to consider the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10-2011. By the said order, the Tribunal directed the Assessing Officer to consider the claim of the assessee for the benefit of Section 10A of the Income Tax Act. 2. We heard the learned Senior Counsel for the revenue and the learned Senior Counsel appearing for the respondent assessee. 3. The facts of the case are that the the assessees in these cases, claiming to the benefit of Section 10B was allowed by the Assessing Officer and on that basis the assessment was completed. However, the Commissioner of Income Tax invoked his jurisdiction under Section 263 of the Act on the ground that the assessment orders were erroneous and prejudicial to the interest of the revenue. Before the Commissioner, the assessees raised an alternative cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee being erroneous and prejudicial to the interest of the revenue, it was not opened to the assessee to claim the benefit of Section 10A either before the Commissioner or the Tribunal. In support of this plea, the counsel placed reliance in the judgment of the High Court of Delhi in Commissioner of Income Tax v Regency Creations Ltd. (2013) ITR 326. However, this contention of the learned senior counsel for the revenue was contradicted by the learned senior counsel appearing for the assessees and according to him, the assessees could not have been deprived of the statutory benefit it was entitled to under section 10A on the ground that it had made a wrong claim under Section 10B. 5. Counsel invited our attention to the judgment of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arising from the facts which are on record, there is no reason why such a question should not be allowed to be raised when it is necessary to consider that question in order to correctly assess the tax liability of an assessee. Even if the contention raised by the learned Senior Counsel for the revenue that the power conferred on the appellants under Section 263 only authorised him to examine whether the order passed by the Assessing Officer is erroneous and prejudicial to the interest of the revenue, that restriction of power cannot affect the powers of the Tribunal which is bound to exercise under Section 254 of the Act. In such a situation, having regard to the language of Section 254 and as interpreted by the Apex Court in NTPC's c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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