TMI Blog2019 (11) TMI 985X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 14 (XL-35) of 1955 dated 11th April 1955 wherein the CBDT has laid down administrative instruction for guidance of income tax officers on matters pertaining to assessment. The Board has in the above said instruction stated that it is one of the duties of the officers of the department to assist a tax payer in every reasonable way, particularly in the matter of claiming and securing reliefs. Restore this issue to the file of the AO with the direction to admit the claim of the assessee and allow the same if after proper verification and examination it is found to be correct and as per law - ITA No.1087/Del/2017 - - - Dated:- 4-11-2019 - Shri N.K. Billaiya, Accountant Member And Shri Sudhanshu Srivastava, Judicial Member For the Assessee : Shri Ajit Korde, Advocate For the Department : Shri S.S. Rana, CIT (DR) ORDER PER SUDHANSHU SRIVASTAVA, JM: This appeal is preferred by the assessee against order dated 20.12.2016 passed by the Ld. Commissioner of Income Tax (Appeals)-43, New Delhi {CIT (A)}. The appeal pertains to assessment year 2011-12. 2.0 The brief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etermined at ₹ 41,301,488/- whereas in the return filed u/s 139(4) of the Act the income had been disclosed at ₹ 64,731,097/-. The assessee also submitted before the AO that where the tax payer has, out of ignorance or otherwise, failed to make a claim which he is legally entitled to make, it would be the duty of the AO to draw attention of the tax payers to such omission and further when the tax payers itself makes a claim in the assessment proceedings, such claim ought to be considered in determining the taxable income. However, the AO did not accept the assessee s contention and completed the assessment at the income of ₹ 64,731,097/- i.e. at the income at which the return had been filed u/s 139 (4) of the Income Tax Act. 2.3 The assessee s appeal before the Ld. CIT (A) was also unsuccessful wherein the Ld. CIT (A) held that the claim for expense/deduction and refund could not have been made before the AO except by filing a revised return and since the assessee had filed a belated return, the action of the AO in rejecting the assessee s claim was fully justified. 2.4 Now the assessee is before the Tribunal challenging the dismi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly i.e. the operations of the assessee having been closed and audited financial statements not being available at the time of filing of return. 4.0 In response, the Ld. CIT (DR) submitted that this was the case where the assessee himself had filed a belated return and it was only during the course of scrutiny assessment proceedings that a claim for refund was made before the AO by filing revised computation of income. It was further submitted that provisions for filing the revised return were amply clear in section 139 of the Act and that a belated return is not eligible for any kind of revision. It was also submitted that a fresh claim cannot be accepted by the AO during the course of assessment proceedings as laid down by the Hon ble Apex Court in the case of Goetze India Ltd. vs. CIT reported in 284 ITR 323 (SC). The Ld. CIT (DR) also submitted that as per the provisions of section 119(2)(b) of the Act, it was only the Central Board of Direct Taxes that can allow the claim of refund in such cases. The Ld. CIT (DR) prayed for upholding the order of the Ld. CIT (A). 5.0 We have heard the rival submissions and have also perused the material on reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal, held as under:- It is well settled that an assessee is entitled to raise not merely additional legal submissions before the appellate authorities, but is also entitled to raise additional claims before them. The appellate authorities have the discretion whether or not to permit such additional claims to be raised. It cannot, however, be said that they have no jurisdiction to consider the same. That they may choose not to exercise their jurisdiction in a given case is another matter. The exercise of discretion is entirely different from the existence of jurisdiction. Goetze was confined to a case where the claim was made only before the AO and not before the appellate authorities. The Court did not lay down that a claim not made before the AO cannot be made before the appellate authorities. The jurisdiction of the appellate authorities to entertain such a claim has not been negated by the Supreme Court in this judgment. 5.1 We further note that the Hon ble Apex Court in the case of Goetze India (Supra) itself has clearly stated that the said case only dealt with the issue of a fresh claim before the AO and does not co ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
