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2019 (6) TMI 484

..... IT exercising revisional jurisdiction u/s 264 of the Act cannot be imported. What Section 80A(5) mandates is that, if the assessee fails to make a claim in his return of income for any deduction under the provisions specified therein, the same would not be granted to the assessee. This condition or restriction is not relatable to the Assessing Officer or the Income Tax Authority In absence of the provision contained in Section 80A(5) has held by various decisions of the High Courts noted above, the CIT could entertain a fresh claim in Revision Application even if the claim was not made previously before the AO. Provision contained in Section 80A(5) is a statutory interdict which would prevent the CIT from granting any such claim in exercise of his revisional jurisdiction u/s 264. As is often times stated, even High Court in exercise of Writ jurisdiction under Article 226 of the Constitution of India would not issue directions contrary to statutory provisions. Width of the powers of the CIT u/s 264 would not permit him to ignore the requirement of Section 80A(5) or allow the claim of an assessee in breach of the condition contained therein. We are therefore not in agreement that the .....

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..... ome Tax Act, 1961 (for short the Act ) in the return of income. The return of income was taken in scrutiny by the Assessing Officer, who passed the order of assessment under Section 143 (3) of the Act on 21st December, 2010. Obviously, since the Petitioners had not raised any claim of deduction under Section 80-IB of the Act, no such claim came up for consideration before the Assessing Officer during the scrutiny assessment proceedings. 2.2. The Petitioners filed the Revision Application before the Commissioner of Income Tax (for short CIT ) under Section 264 of the Act against the order of the assessment. In such Revision Application, the Petitioners raised the claim of deduction under Section 80-IB (10) of the Act. Since the Revision Application was filed by the Petitioners beyond the normal period of limitation prescribed under the statue, the Petitioners also prayed for condoning delay in filing the Revision Application. The Commissioner refused to condone delay. Upon which, the Petitioners filed Writ Petition No. 6287 of 2015 and Writ Petition No. 8955 of 2015. These Writ Petitions were disposed off by this Court by an Order dated 6th November, 2017. This Court directed the co .....

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..... xman 13 (SC) to contend that the statutory provisions of taxing statue, should be reasonably interpreted. 3.7. Counsel pointed out that the Bombay Tribunal in case of Madhav Construction vs. Principal CIT-3, Thane ITA Nos. 33271 to 3276/Mum/2017 has held that the restriction contained in Section 80A (5) of the Act would apply to the Assessing Officer and not to the CIT or the Tribunal. 4. As is well-known, under Section 80-IB (10) of the Act, the Legislature has granted deductions in relation to income arising out of development of housing projects to the assessees the fulfilling conditions contained therein. This provision is contained in Chapter - VI - A of the Act. Section 80A of the Act which is also contained in the same Chapter, pertains to deductions to be made in computing total income. Sub Section (5) was inserted in Section 80A of the Act by Finance (No.2) Act, 2009 with retrospective effect from 1st April, 2003. Sub Section (5) of Section 80A of the Act, reads under : 80A(5) - Where the assessee fails to make a claim in his return of income for any deduction under Section 10A or Section 10AA or Section 10B or Section 10BA or under any provision of this Chapter under the .....

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..... f the assessee. Power is also conferred on the CIT to condone delay in case he is satisfied that the assessee was prevented by sufficient cause from making the application within the prescribed period. Sub-s. (4) provides that the CIT has no power to revise any order under S. 264 (1) (i) while an appeal against the order is pending before the AAC, and (ii) when the order has been subject to an appeal to the Tribunal. Subject to the above limitation, the revisional powers conferred on the CIT under S. 264 are very wide. He has the discretion to grant or refuse relief and the power to pass such order in revision as he may think fit. The discretion which the CIT has to exercise is undoubtedly to be exercised judicially and not arbitrarily according to his fancy. Therefore, subject to the limitation prescribed in S. 264, the CIT in exercise of his revisional power under the said section may pass such order as he thinks fit which is not prejudicial to the assessee. There is nothing in S. 264 which places any restriction on the CIT s revisional power to give relief to the assessee in a case where the assessee detects mistakes on account of which he was over assessed after the assessment .....

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..... ection 264 of the Act cannot be imported. What Sub Section (5) of Section 80A of the Act mandates is that, if the assessee fails to make a claim in his return of income for any deduction under the provisions specified therein, the same would not be granted to the assessee. This condition or restriction is not relatable to the Assessing Officer or the Income Tax Authority. This condition attaches to the claim of the assessee and has to be implemented by the Assessing Officer, CIT or the Appellate Tribunal as the case may be. There is no indication in Sub Section (5) of Section 80A of the Act as to why the restriction contained therein amounts to limiting the power of Assessing Officer but not that of Commissioner. 9. This issue can be looked from slightly different angle. In absence of the provision contained in Sub Section (5) of Section 80A of the Act has held by various decisions of the High Courts noted above, the CIT could entertain a fresh claim in Revision Application even if the claim was not made previously before the Assessing Officer. Provision contained in sub-section (5) of Section 80A is a statutory interdict which would prevent the CIT from granting any such claim in .....

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