9911796707
TMI Blog2020 (2) TMI 371X X X X Extracts X X X X X X X X Extracts X X X X ..... s not maintainable? (2) Without prejudice to the above, whether on the facts and in the circumstances of the case and in law, the ITAT is correct in holding that the CIT (A) was not empowered to adjudicate on the grounds raised before the him by the assessee, despite the settle position in law that the CIT (A) has powers to admit and adjudicate even fresh claims, and there is no requirement in law that the claims should be made either in a revised return or during the course of assessment proceedings? 3. The aforesaid substantial questions of law arise for determination in the context of the return filed by the appellant for the assessment year 2009-2010 declaring a total income of "Nil". The Assessing Officer, (AO) vide its order dated 12/12/2011 made under section 143(3) of the Income Tax Act 1961 (the said Act) assessed he total income of the appellant at Rs. 70,80,040/- and imposed tax liability of Rs. 27,62,035/-. 4. The appellant on 21/1/2012 filed an application for rectification under section 154 in respect of the aforesaid order dated 12/12/2011 by pointing out that an amount of Rs. 52,14,543/- of short term capital gain on the sale of debts funds was inadverten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner of Income-Tax, Gujarat Vs. Gurjargravures P. Ltd, 1978 111 ITR 1 (SC) since in Jute Corporation of India Ltd. Vs. Commissioner of Income Tax and anr, 187 ITR 688 (SC), the Apex Court has held that the view taken in Gurjargravures (supra) is in conflict with the view taken by the Three Judge Bench of the Apex Court in Commissioner of Income Tax, U. P Vs. Kanpur Coal Syndicate, 53 ITR 225 (SC). Mr. Desphande pointed out that in any case, Gurjargravures (supra) has been considered, read and interpreted by the Division Bench of this Court in Pruthvi Brokers (supra) in a particular manner and such reading and interpretation was clearly binding upon the ITAT, which could not have read the decision in Gurjargravures (supra) in a different manner. 10. For all these reasons Mr. Deshpande submits that the ITAT clearly erred in holding that the powers of the CIT (Appeals) were restricted to entertain the grounds, which were, originally unavailable to the appellant at the stage of assessment of the proceedings before the Assessing Officer. 11. Mr. Deshpande submits that in the present case, the respondent/revenue had not even questioned the common order of the CIT (Appeals) dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Appeals), in the two separate appeals questioning not only the rejection of the application under section 154 of the said Act but also questioning the order dated 12/12/2011 by which the Assessing Officer accepted the return of the appellant under section 143 (3) of the said Act. 16. The question which therefore arises in this matter is whether the CIT (Appeals) had the jurisdiction to entertain this additional grounds in the appeal instituted by the appellant questioning the Assessing Officer's order dated 12/12/2011 made under section 143 (3) of the said Act, even though such grounds neither flow from any change of circumstances or the law nor is it that such grounds were unavailable to the appellant/assessee at the stage of filing the return or during the progress of the assessment proceedings before the Assessing Officer. 17. The CIT (Appeals) has held that it had such jurisdiction. In exercise of such jurisdiction, the CIT (Appeals) not only permitted the appellants to raise these additional grounds but also allowed the appeal by accepting such additional grounds. 18. The ITAT by the impugned judgment and order dated 11/4/2014, by relying mainly on Gurjargravures (supr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authorities may confirm, reduce, enhance or annul the assessment or remand the case to the Assessing Officer. This is because, unlike an ordinary appeal, the basic purpose of a tax appeal is to ascertain the correct tax liability of the assessee in accordance with law. 22. In Pruthvi Brokers (supra), the division Bench, after considering several decisions has held that it is clear 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. They have the jurisdiction to entertain the new claim. 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. 23. The decision in Goetze (supra) upon which reliance is placed by the ITAT also makes it clear that the issue involved in the said case was limited to the power of the assessing authority and does not impeach on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... common order dated 26/9/2013 made by the CIT (Appeals) and we find that notwithstanding the length of the order, on the merits of the additional grounds urged by the appellant/assessee, the CIT (Appeals) has only made the following observations : "I have gone through the submission of the appellant and documents submitted. On the basis of the above, I find the claim of the appellant to be correct." 28. According to us, the aforesaid is hardly a satisfactory manner for dealing with the additional grounds raised by the appellant /assessee and contested by the respondent/revenue on merits. The ITAT (Appeals) in the impugned order has correctly observed that the issue could not have been decided in such a perfunctory manner. The issue is highly debatable and requiring assessment of the material on record. Accordingly, we are of the opinion that after declaring that the CIT (Appeals) had the jurisdiction to entertain the additional grounds raised by the appellant, the matter will have to be remanded to the CIT (Appeals) for determining whether in the facts and circumstances of the present case, discretion was required to be exercised in favour of the appellant/assessee and further, w ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
