TMI Blog2019 (1) TMI 201X X X X Extracts X X X X X X X X Extracts X X X X ..... g due opportunity of being heard to the assessee. - ITA No.2065/Bang/2018 - - - Dated:- 20-11-2018 - Shri N.V. Vasudevan, Vice President And Shri Inturi Rama Rao, Accountant Member For the Appellant : Shri Sunil Jain, CA. For the Respondent : Dr. P.V.Pradeep Kumar, Addl.CIT(DR) ORDER PER INTURI RAMA RAO, AM : This is an appeal filed by the assessee directed against the order of the ld. Commissioner of Income-tax (Appeals)-3, Bengaluru, dated 16/05/2018 for the assessment year 2015-16. 2. Briefly, the facts of the case are as under: The assessee is a company incorporated under the provisions of the Companies Act 1956. It is engaged in the business of trading in electricity power. The return of income for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urn of income cannot be allowed. 2. On the facts and in the circumstances of the case and in law, the learned CIT(Appeals) has erred in holding that powers of the CIT(Appeals) are limited to that of the Assessing officer and since the Assessing officer cannot accept a fresh claim of the assessee On the basis of a letter without a revised return, the CIT(A) can also not entertain such a claim. The Appellant submits that there is no restriction on the CIT(Appeals) to admit an additional ground / claim made before him which was not raised before the Assessing officer. 3. The learned CIT(Appeals) failed to appreciate that all the details relating to lower of brought forward loss and unabsorbed depreciation as per books of account of ͅ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the case of CIT Vs. Mitesh Impex, 225 Taxman 168 (Gujarat) after review of entire law on the income, held as follows: 30. In what manner and to what extent, a ground, a legal contention or a fresh claim can be made at an appellate stage are vexed questions and have occupied the minds of the Courts in numerous occasions. 31. In the case of Jute Corpn. of India Ltd. v. CIT [1991] 187 ITR 688 the Supreme Court noted with approval observation of the Court in the case of CIT v. Kanpur Coal Syndicate [1964] 53 ITR 225 to the effect that The Appellate Assistant Commissioner, therefore, has plenary powers in disposing of appeal. The scope of his power is co-terminus with that of the Income-tax Officer. He can do what the Income-tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tant Commissioner in entertaining an additional ground raised by the assessee in seeking modification of the order of assessment passed by the Income-tax Officer. 32. In case of National Thermal Power Co. Ltd. v. CIT [1998] 229 ITR 383 (SC) when the question of law was raised for the first time before the Tribunal though facts were already on record, the Supreme Court observed that there is no reason why the assessee should be prevented from raising such a question before the Tribunal for the first time so long as the relevant facts are on record in respect of the item concerned. There is no reason to restrict the power of the Tribunal in such appeal only to decide the grounds which arise from the order of Commissioner (Appeals). The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 98/23 taxmann.com 23 (Bom.) the Bombay High Court considered the issue at considerable length and held that Commissioner (Appeals) as well as the Tribunal have the jurisdiction to consider the additional claim and not merely additional legal submissions. The appellate authorities have discretion to permit such additional claims. Such claims need not be those which became available on account of change of circumstances of law but which were even available when the return was filed. 36. The Delhi High Court once again in recent judgment in the case of CIT v. Sam Global Securities Ltd. [2014] 360 ITR 682/[2013] 38 taxmann.com 129 observed that the Courts have taken a pragmatic view and not a technical one as to what is required to be dete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of law or facts. A legal contention would ordinarily be a pure question of law without raising any dispute about the facts. Not only such additional ground or contention, the Courts have also, as noted above, recognized the powers of the Appellate Commissioner and the Tribunal to entertain a new claim for the first time though not made before the assessing officer. Income-tax proceedings are not strictly speaking adversarial in nature and the intention of the Revenue would be to tax real income. 39. This is primarily on the premise that if a claim though available in law is not made either inadvertently or on account of erroneous belief of complex legal position, such claim cannot be shut out for all times to come, merely because it i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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