TMI Blog2019 (6) TMI 484X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 expression given by the Income Tax Tribunal in case of Madhav Construction [ 2017 (8) TMI 1122 - ITAT MUMBAI] holding that the restriction contained in Section 80A(5) is to restrict the power of AO and not higher Income Tax Authorities. The Petitioners having given up the challenge to the constitutionality of the retrospectivity to Section 80A (5), cannot bring in the concept of the reading down of the provision in order to save if from unconstitutionally. In plain terms, our duty would be to enforce the provision contained in Sub Section (5) of Section 80A, as it is stands in the statue book. The decision in case of Goetze (India) Limited [2006 (3) TMI 75 - SUPREME COURT] was rendered in different background. The Supreme Court did not have any occasion to interpret the provision of Section 80A (5) in the context of the power of the CIT or the Appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation 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 condonation of delay and ordered the CIT to decide the Revision Application on merits. 2.3. The CIT passed the Order on 20th March, 2018, which is impugned in this Writ Petition. By such Order, the CIT rejected the Revision Application of the Petitioners. He was of the opinion that since the Petitioners had not made a claim under Section 80-IB (10) of the Act in the return of income, by virtue of Section 80-A (5) of the Act, the claim cannot be granted. 3. The prayers made by the Petitioners in the Writ Petition, which have reproduced hereinabove, are in two parts. One part challenges the retrospective operation of Sub Section (5) of Section 80A of the Act. The learned Counsel for the Petitioners at the outset stated that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hapter 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 heading C.-Deduction in respect of certain incomes , no deduction shall be allowed to him thereunder . 5. As per this provision, 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 the said Chapter VI A under the heading C.-Deduction in respect of certain incomes , no deduction would be allowed to him under the said provision. In plain terms, this Sub Section (5) of Section 80A of the Act imposes an additional condition for claim of deduction in relation to income under any of the provisions menti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 was completed. We do not read any such embargo in the CIT s power as read by the CIT in the present case. It is open to the CIT to entertain even a new ground not urged before the lower authorities while exercising revisional powers. Therefore, though the Petitioner had not raised the grounds regarding under-totalling of purchases before the ITO, it was within the power of the CIT to admit such a ground in revision. The CIT was also not right in holding that the over-assessment did not arise from the order the assessment. Once the Petitioner was able to satisfy that ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 exercise of his revisional jurisdiction under Section 264 of the Act. 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 under Section 264 of the Act would not permit him to ignore the requirement of Section 80A(5) of the Act or allow the claim of an assessee in breach of the condition contained therein. We are therefore not in agreement that the expression giv ..... X X X X Extracts X X X X X X X X Extracts X X X X
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