TMI Blog2021 (9) TMI 419X X X X Extracts X X X X X X X X Extracts X X X X ..... carefully gone through the decisions cited by learned authorized representative of the assessee, we are of the view that in none of these decisions, the provision contained in section 80A(5) of the Act was taken note of. In case of ITO vs MSEB Employees Co-operative Credit Society Ltd [ 2014 (12) TMI 380 - ITAT PUNE] as held that even if the assessee has not claimed a deduction in the return of income, the appellate authorities have power to allow deduction which is allowable under the provisions of the Act - it appears form a reading of the said decision, provision contained in section 80A(5) was not brought to the notice of the Tribunal - Tribunal did not have the benefit of the decision of the Hon ble jurisdictional High Court in case of EBR Enterprises vs UOI [ 2019 (6) TMI 484 - BOMBAY HIGH COURT] which was subsequently rendered. Tribunal has allowed assessee s claim of deduction under section 80P(2)(a)(i) of the Act in assessment years 2010-11 and 2012-13. However, there is nothing on record to suggest that there was any violation of section 80A(5) of the Act. Therefore, the factual position based on which the decisions were rendered in assessment year 2010-11 and 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee had not claimed the deduction under section 80P(2)(a)(i) of the Act in the return of income, referring to section 80A(5) of the Act, learned Commissioner (Appeals) held that deduction claimed by the assessee cannot be allowed. 4. Before us, learned counsel for the assessee submitted, there is no dispute that the assessee is a co-operative society; therefore, the correct status of the assesee is of an AOP. He submitted, being a co-operative society, the assessee is also eligible for deduction Under section 80P(2)(a)(i) of the Act. He submitted, assessee s status as AOP as well as claim of deduction under section 80P(2)(a)(i) of the Act has been accepted by the Tribunal in its own case in assessment years 2010-11 and 2012-13. Thus, he submitted, assessee s claim of deduction under section 80P(2)(a)(i) of the Act has to be allowed. Further, he submitted, merely because the assessee did not claim the deduction under section 80P(2)(a)(i) of the Act in the return of income due to inadvertent mistake, such deduction cannot be denied, as, the assessee has fulfilled the conditions of section 80P(2)(a)(i) Act. In this context, he relied upon the following decisions:- (1) ITO vs M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 80A(5) of the Act. Therefore, the issue which arises for consideration is, whether the conditions of section 80A(5) is mandatory for claiming deduction under section 80P(2)(a)(i) or not. 7. At this stage, it would be relevant to observe, after the conclusion of hearing of the appeal initially on 29-06-2021, a decision of the Hon ble jurisdictional High Court in case of EBR Enterprises vs UOI (2019) 107 taxmann.com 220 (Bombay) came to the notice of the Bench. In the interest of fair play and justice, the appeal was again fixed for hearing to provide an opportunity to the litigating parties to examine the aforesaid judgment of the Hon ble jurisdictional High Court and make their submissions. 7.1 Learned authorized representative of the assessee submitted that even if a claim has not been made in the return of income, it can still be made before the appellate authorities. In this context, he relied upon the decision of the Hon ble Supreme Court in the case of Goetze India Ltd vs CIT 284 ITR 323 (SC). Thus, keeping in view the submissions of learned authorized representative of the assessee, we proceed to decide the issue. 8. Pertinently, in case of EBR Enterprises vs UOI (su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pect 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 mentioned therein. Apart from the requirement of fulfillment of individual set of respective conditions for the purpose of claiming the concerned deduction, this plenary condition requires that the claim ought to have made in the return of income by the assessee and if the assessee fails to make such claim in the return of income, such deduction shall not allowed to him under the relevant provision. Admittedly, in the present case, the Petitioners had not raised any such claim in the return of income. In plain terms, the claim of the Petitioners under Section 80-IB (10) of the Act would be hit by Sub Section (5) of Section 80A of the act. 6. We are conscious that in absence of the provision contained in Section 80A (5) of the Act, the Petitioners could have maintained the claim of deduction even before the CIT for the first time in Revision Application, though no such claim was made before the Assessing Officer, if from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 there was a mistake in totaling purchases and that there was under- totalling of purchases to the tune of ₹ 20,000, it is obvious that there was over-assessment. In other words, the assessment of the total income of the assessee is not correctly made in the assessment order and it has resulted in over-assessment The CIT would not be acting de hors the IT Act, if he gives relief to the assessee in a case where it is proved to his satisfaction that there is over-assessment, whether such over-assessment is due to a mistake detected by the assessee after completion of assessment or otherwise. In our opinion, the CIT has misconstrued the words subject to the provisions of this Act in S. 264 (1) and read a restriction on his revisional power which does not exist. The CIT was, therefore, not right in holding that it was not open to him to give relief to the Petitioner on account of the Petitioner 's own mistake which it detected after the assessment was complete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 given by the Income Tax Tribunal in case of Madhav Construction (supra) holding that the restriction contained in Sub Section (5) of Section 80A of the Act is to restrict the power of Assessing Officer and not higher Income Tax Authorities. 10. The Petitioners having given up the challenge to the constitutionality of the retrospectivity to Section 80A (5) of the Act, cannot bring in the concept of the reading down of the provision in order to save it from unconstitutionally. In plain terms, our duty would be to enforce the provision contained in Sub Section (5) of Section 80A of the Act, as it is stands in the statue book. The decision in case of Goetze (India) Ltd. (supra) was rendered in different background. The Supreme Court did not have any occasion to interpret the provision of Section 80A (5) of the Act in the context of the power of the CIT or the Appellate Tribunal. 9. Thus from the aforesaid observations of the Hon ble jurisdictional High Court, it is ve ..... X X X X Extracts X X X X X X X X Extracts X X X X
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