TMI Blog2018 (12) TMI 406X X X X Extracts X X X X X X X X Extracts X X X X ..... to make claim in the assessment proceedings u/s. 153A, though the same were not made in the earlier assessment proceedings u/s.143 of the act. Disallowance u/s. 14A - MAT computation - Held that:- As regards the ground with regard to disallowance u/s. 14A is concerned the same has been done in accordance with ITAT direction. Hence, we find no reason to interfere in the same. As regards disallowance u/s. 115 JB is concern, we find that the same is not as per rule 8D of section 14A, it is on reasonable basis, which in our view is in accordance with the mandate of the Special Bench of the Tribunal in the case of Vireet Investment Pvt. Ltd. and ANR.[2017 (6) TMI 1124 - ITAT DELHI]. Accordingly we do not find any infirmity in the ld CIT-A's direction in this regard. - ITA Nos. 2967 to 2971/Mum/2016 - - - Dated:- 5-12-2018 - SHRI SHAMIM YAHYA, AM AND SHRI SANDEEP GOSAIN, JM For The Appellant : Shri J. D. Mistry And Shri Madhur Aggarwal For The Respondent : Shri Madhur Aggarwal ORDER Per Bench: These are appeals by the assessee against the respective orders of the learned Commissioner of Income Tax (Appeals), Mumbai ( ld.CIT(A) for short), pertain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oducts. We may gainfully referred to the finding of the Tribunal as under: In the light of the above factual and legal discussion, we have heard both the sides at length. On careful examination of the grounds as raised before us( we have noted that basically two substantive issues have been raised before us. The first one is that the Assessing Officer has rejected the claim of the assesses in respect of sales-tax subsidy on the pretext that the proceeding was - started under section 153A of J.T. Act, which was a revenue beneficial assessment, hence new claim of exemption could not be entertained and the assessee is not eligible to raise a fresh claim of exemption. The second one is that if a view is taken that even if an assessment is framed under section 153A/143(3) the assessee is to claim a statutory exemption, then under such circumstances whether the assessee is entitled for the said claim in respect of the sales-tax incentive received and duly credited in profit loss account. Therefore, the first step is to examine whether the impugned claim can be entertained and if it goes in favor of the assessee then the next step is to examine the eligibility of the claim. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench in the case of COT v/s. Ever smile Construction Co, P. Ltd. bearing ITA No. 4238/Muml2010 order dated 30-08-2011 has made an observation quota A close look at the above provision manifests that the Assessing Officer is required to make assessment afresh and compute the 'total income1 in respect of each of the relevant six assessment years. As there is no specific inhibition on the jurisdiction of the Assessing Officer in not including any new income to such fresh total income pursuant to search which was not added during the original assessment, in the like manner, there is no restriction on the assessee to claim any deduction which was not allowed in the original assessment. The requirement of section 153A is to compute the total income of each of such assessment years. Such determination of the total income has to be done afresh without any reference to what was done in the original assessment. Of course, the AO is entitled to make any addition in the fresh assessment, which he made in the original assessment, provided he is satisfied with the merits of the addition. But mere fact that there was some addition in the original assessment, would not preclude the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... framed generally under the normal provisions of the Act without imposing any fetters. If it is so then naturally an assessee has options, one is to file correct statement of income and if any information was left out earlier then the said omission or mistake could be rectified. Since as per the language of section 153A the process of assessment is started with the filing of the return, as it happens in the course of normal assessment, then the second option is also available to a tax payer to place any claim or information before the Assessing Officer during the course of such assessment proceedings. Therefore, even under section 153A the Assessing Officer is not supposed to stop the assessee from claiming a fresh rebate. There is no such indication under the provisions of section 153A through which it could be adjudged that the assessee was precluded from not claiming any fresh rebate. Rather the respected Mumbai Bench has opined that the assessee could not be stopped from claiming a fresh deduction, but even the assessee is also not stopped for arguing the matter on merits. In this cited decision a conclusion was drawn that even any deduction is claimed by the assessee in the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on is reproduced below: 'We find that in the above discussion after discussing the issue in detail, the Mumbai Bench has come to the conclusion that there is difference in wordings u/s 158B(b) and section 153A of the Act Provisions u/s 153A are successor of special procedure for assessment of search cases under Chapter XIV B starting with Section 1583. Chapter XIV-B required the assessment of undisclosed income as a result of search, which has been defined in Section 158B(b) whereas Section 153A dealing with assessment in case of search w.e.f 1.62003 requires the A.O, to determine total income and not undisclosed income under these background, the Bombay of the Tribunal has held that when the A. 0. has to compute the total income of the assessee on the basis of return filed after considering the submissions made during the course of hearing before him, there cannot be any scope for arguing that the assessee has been rendered powerless to even lodge a claim in respect of which deduction not allowed earlier. The A. 0. is fully empowered to consider the question of deducibility as per the provision of the Act. If after going through such claim, he feels that addition i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this argument of the assessee, 6.5 From the side of the Revenue a vehement argument has been raised that in the case of Sun Engineering Works 198 ITR 297 (SC) it was held that in a reassessment proceedings it is not open to the assessee to press for a review all the concluded items unconnected with escapement of income. This aspect has also been considered by the ITAT, Mumbai in the case of M/s Ever smile Construction (supra) and held, rightly so, that the Hon ble Supreme Court was considering the provisions of section 147 of LT. Act. In that context the Hon'ble Court has expressed that once an assessment is validly reopened, it is not open to an assessee to seek a review of the concluded items. The Tribunal has said that it is not pertinent to note that the conditions for taking action are altogether different than the conditions under which the provisions of section 153A are to be applied. The distinction drawn by Mumbai Tribunal is worth reproduction: - The reliance of the learned Departmental Representative on the judgment of the Hon 'ble Supreme Court in the case of CIT v/s. Sun Engineering Works Pvt. Ltd. (1992) 198 ITR 297 (SC) is misconceived. The reason fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im of the assessee by assigning technical reasons. The view taken by the lower authorities In this regard is, therefore, reversed and connected ground No. 1 is allowed. 7. Upon carefully consideration we find that the above decision has very elaborately considered the issue and has come to the conclusion admissible claim could be entertained white framing the u/s 153A. We find ourselves in agreement with the above proposition. 8. As regards the decision relied upon the Ld. DR from the honourable Jurisdictional High court in the case of Continental Warehousing (Supra) we find that the same is not at all applicable on the facts of the case as the same decision was rendered in the context of addition made by the revenue de-horse any incriminating material found during search in cases where assessment had abated. The same decision can by no stretch of imagination be extended to any disclosure of income exempted or otherwise in the return pursuant to section 153 A. The simple analogy which can be considered in this respect can be a disclosure of additional income by the assessee in the return of income filed pursuant to notices under Section 153 A, The revenue cannot and wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al High Court decision on this issue. Moreover, as expounded by the Hon ble Apex Court in the case of M /s. Narendra Vegetable Products Pvt. Ltd. (supra) if two considerations are possible, then one in favour of the assessee should be adopted. This view was also reiterated by the constitutional bench of the Tribunal in the case of Asst. CIT vs. Shri Dilip Chimanlal Gandhi (in I.T.A. No.7079/Mum/2016 vide order dated 01.08.2018), wherein it was held that insofar as charging provisions are concerned, if two views on possible one in favour of the assessee should be adopted, in contradiction to the exemption provisions, where if two views are possible one in favour of the Revenue should be adopted. Accordingly, in view of the aforesaid precedent's including that from the Hon ble Apex Court we hold that assessee was entitled to make claim in the assessment proceedings u/s. 153A, though the same were not made in the earlier assessment proceedings u/s.143 of the act. In this view of the matter we decide as under : The grounds of appeal for 2006-07 reads as under: 1. On the facts circumstances of the case the Learned Commr. of Income Tax (A) has erred in concluding that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the set off of carry forward of short term capital gains be allowed in A.Y. 2006-07. The grounds as above relate to non consideration by the ld. CIT(A) of the additional grounds/claims made by the assessee in assessment proceedings u/s.153A of the Act, on the ground that the assessee is not entitled to raise the same. In view of our adjudication in earlier part of this order, we remit these issues to the file of the assessing officer to consider the same in light of our direction as above. 8. The grounds of appeal for assessment year 2007-08 reads as under: 1. On the facts circumstances of the case the Learned Commr. of Income Tax (A) has erred in concluding that the appellant is not entitled to contest the addition made on account of gratuity at ₹ 6,39,866/- while computing the total income. The conclusion reached by Learned Commr. of Income Tax (A) is erroneous and contrary to the facts. 2. On the facts circumstances of the case the appellant prays that the appellant has right to place the additional grounds on legal issues before Learned Commr. of Income Tax (A) to determine the correct and the realincome for A.Y. 2007-08. . 3. On the facts c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hence, we find no reason to interfere in the same. As regards disallowance u/s. 115 JB is concern, we find that the same is not as per rule 8D of section 14A, it is on reasonable basis, which in our view is in accordance with the mandate of the Special Bench of the Tribunal in the case of Vireet Investment Pvt. Ltd. and ANR. (2017) 165 ITD 0027 (Delhi) ((SB)). Accordingly we do not find any infirmity in the ld CIT-A's direction in this regard. 10. The grounds of appeal for assessment year 2008-09 reads as under: 1. On the facts circumstances of the case the Learned Commr. of Income Tax (A) has erred in concluding that the appellant is not entitled to contest the addition made u/s 14A of ₹ 28,54,347/-while computing the total income. The conclusion reached by Learned Commr. of Income Tax (A) is erroneous and contrary to the facts. 2. On the facts circumstances of the case the appellant prays that the appellant has right to place the additional grounds on legal issues before Learned Commr. of Income Tax (A) to determine the correct and the real income for A.Y. 2008-09. 3. On the facts circumstances of the case the appellant prays that the addition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e computing the book profit u/s 115JB. The conclusion reached by Learned Commr. of Income Tax (A) is erroneous and contrary to the facts. 5. On the facts circumstances of the case the appellant prays that the appellant has right to place the additional grounds on legal issues before Learned Commr. of Income Tax (A) to determine the correct and the real book profit u/s 115JB for A.Y. 2009-10. 6. On the facts circumstances of the case the appellant prays that the addition made u/s 14A amounting to ₹ 42,86,136/- be deleted while computing the book profit u/s 115JB. 12. The grounds of appeal for assessment year 2010-11 reads as under: 1. On the facts circumstances of the case the Learned Commr. of Income Tax (A) has erred in ; concluding that the appellant is not entitled to contest the addition made u/s 14A of ₹ 23,30,1847-. while computing the total income. The conclusion reached by Learned Commr. of Income Tax (A) is erroneous and contrary to the facts. 2. On the facts circumstances of the case the appellant prays that the appellant has right to place the additional grounds on legal issues before Learned Commr. of Income Tax (A) to dete ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
