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TMI Blog2018 (12) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... return within the time stipulated; could be considered in appeal. 2. The learned Counsel for the asseessee has placed before us the decisions of the Hon'ble Supreme Court in Kedarnath Jute Mfg.Co.Ltd. v. C.I.T., (1971) 82 ITR 363 (SC), Addl.C.I.T v. Gurjargravures Private Ltd., [1978] 111 ITR 1 (SC), NTPC Ltd. Vs C.I.T, [1998] 229 ITR 383 and Goetze (India) Ltd. v. C.I.T, [2006] 284 ITR 323 (SC). Before we look at the decisions, on facts it has to be stated that the here the assessee, who is the appellant, had filed a return and being a firm engaged in the development of software, claimed exemption under Section 10A of the Income Tax Act, 1961 (for short "the Act"). The exemption was declined and a first appeal was filed as against th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e denial of benefit under Section 84 of the Act. In fact, the assessee had never raised a claim under Section 84 before the A.O. The Hon'ble Supreme Court found that it is not a rule of law that no additional ground could be raised before the Appellate Assistant Commissioner, since there could be circumstances in which the ground was raised only due to change of circumstances or law. It was also held that there could be several other factors justifying raising of a new plea in appeal and each case has to be considered on its facts. It was stated as a settled position that the various items of income or deductions, which have been subjected to the process of assessment, constitute the subject matter of assessment, and that if there is an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts from the point of view of its taxability only, should be deemed to have also considered the question of its non-taxability. As we have pointed out earlier, the statement of case drawn up by the Tribunal does not mention that there was any material on record to sustain the claim for exemption which was made for the first time before the Appellate Assistant Commissioner. 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 support. In the present case neither any claim was made before the Income Tax Officer, nor was there any material on record supporting such a clai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the return. The learned Judges of the Supreme Court in Goetze (India) Ltd. was careful to observe that they had decided, only on the power of the A.O. and this need not be taken as impinging upon the power of the Appellate Tribunal under Section 254 of the Act. On the power of the appellate authorities we have to fall back upon Gurjargravures Private Ltd. 7. The learned Senior Counsel, Government of India (Taxes) points out that the First Appellate Authority had specifically found that the claim was not decipherable even from the accounts, since the Profit & Loss Account did not show the expenditure towards the leased equipment. The learned Counsel for the appellant would submit that the cash out flow is shown in the balance sheet. For n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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