TMI Blog2021 (10) TMI 867X X X X Extracts X X X X X X X X Extracts X X X X ..... 80A(5) of the Act. The ld.Authorized Representative of the assessee filed a Paper Book giving written submissions and giving list of case laws primarily on admission of additional ground and new claim legally admissible during appellate proceedings. In the present case even though the assessee s claim of deduction under section 80P(2)(d) of the Act is allowable, however, since the assessee has failed to qualify the additional condition imposed by section 80A(5), the assessee would not be entitled to claim said deduction, even if, otherwise the assesssee is eligible for deduction under section 80P(2)(d) From literal interpretation of provisions of Section 80A(5) it is explicitly clear that for claiming deduction under Chapter VIC, the precondition is making claim of deduction in the return of income.- Decided against assessee. - ITA No. 3946/MUM/2019 And ITA No. 3947/MUM/2019 - - - Dated:- 20-9-2021 - Shri Vikas Awasthy, Judicial Member For the Assessees : Shri Ravinder Naik For the Revenue : Shri Sanjay J. Sethi/Ms.Smita Verma ORDER These two appeals by two different assessees have similar facts and hence, are take up together for adjudication and are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 80P(2)(d) of the Act made by the assessee cannot be accepted. Hence, the present appeal by the assessee. 4. Shri Ravinder Naik appearing on behalf of the assessee submitted that the assessee is a Co-operative Housing Society. Since its inception the assessee is following the practice of transferring collection received from its members to deposit accounts maintained with Co-operative Bank. As per the past practice, the entire interest received by the assessee on investments is transferred to respective fund accounts i.e. Sinking Fund investment account, Maintenance Fund investment account and Society Welfare fund investment account. The interest is reflected in Balance Sheet. The ld. Authorized Representative of the assessee referred to Balance Sheet as on 31/03/2014 at page 30 of the Paper Book. The interest is not shown in Income and Expenditure account, hence, the same was not offered to tax. The ld. Authorized Representative of the assessee submitted that in any case, the aforesaid interest income is eligible for deduction under section 80P(2)(d) of the Act. 4.1 The ld. Authorized Representative of the assessee further submitted that even though the deduction was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sputedly, the assessee has not made claim of deduction under section 80P in the return of income. In the light of the provisions of section 80A(5), the assessee is estopped from making claim under section 80P of the Act. 6. Submissions made by rival sides heard, orders of authorities below examined. The assessee is in appeal against the order of CIT(A) wherein assessee s claim of deduction under section 80P(2)(d) of the Act has been denied. Before proceeding further to adjudicate the ground raised by the assessee against disallowance of claim of deduction under section 80P(2)(d) of the Act, it would be imperative to reiterate vital facts. The assessee filed its return of income for the impugned assessment year on 23/03/2016. In the return of income admittedly the assessee had not made claim of deduction under section 80P(2)(d) of the Act. The said claim of deduction was made by the assessee by way of note during scrutiny assessment proceedings. The said claim of the assessee was rejected inter-alia on the ground that since, no claim of deduction was made in the return of income, the same cannot be accepted. In first appellate proceedings the CIT(A) referring to the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e that none of the aforesaid judgments can be interpreted in a manner to say that even if a claim otherwise impermissible under the scheme of the Act has to be admitted by way of additional ground. The Hon'ble Supreme Court of India in the case of Jute Corporation of India Ltd. vs. CIT, 187 ITR 668 while dealing with the powers of AAC observed that an appellate authority has all the powers which the original authority may have in deciding the question before it subject to the restriction or limitation if any prescribed by the statutory provisions. In the present case even though the assessee s claim of deduction under section 80P(2)(d) of the Act is allowable, however, since the assessee has failed to qualify the additional condition imposed by section 80A(5), the assessee would not be entitled to claim said deduction, even if, otherwise the assesssee is eligible for deduction under section 80P(2)(d) of the Act . 11. The provisions of section 80A(5) were inserted by the Finance Act 2009 with retrospective effect from 01/04/2003. The judgment on which reliance has been placed by the ld. Authorized Representative for the assessee were rendered prior to insertion of sub-section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l. 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 ft 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity. 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 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 Se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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