TMI Blog2021 (10) TMI 1047X X X X Extracts X X X X X X X X Extracts X X X X ..... is allowed for statistical purpose. - ITA No.207/SRT/2018 - - - Dated:- 1-10-2021 - Shri Pawan Singh, Judicial Member And Dr. Arjun Lal Saini, Accountant Member For the Assessee : Shri Mukund Rao - CA For the Revenue : Shri Ritesh Mishra - CIT(DR) ORDER UNDER SECTION 254(1) OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER: 1. This appeal by Assessee is directed against the order of ld. Commissioner of Income Tax (Appeals)-3, Vadodara dated 19.12.2017 for Assessment Year (AY) 2012-13. Grounds raised by the assessee are as follows: The Appellant prays and appeals that the Learned CIT (Appeals) 3, Vadodara has erred in law and on facts not allowing the additions made by the assessing officer u/s 143(3) of the Income-tax Act, 1961. The Appellant therefore prays that the full deduction of ₹ 4,35,73,275/- should be allowed u/s 36(1)(via) of the Income Tax Act, 1961 instead the part deduction allowed of ₹ 1,18,16,928/- by the CIT (Appeals)-3, Baroda. Without prejudice to the above Appellant reserves its right to make any amendment to the grounds of appeal at the time of hearing. 2. Brief facts of the case are that the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this much NPA. No justification for this contention has been placed before me and hence, this plea is rejected. However, for statistical purposes, this Ground of appeal is allowed . Further aggrieved, the assessee has filed present appeal before this Tribunal. 4. We have heard the submission of ld. Authorised Representative (ld.AR) of the assessee and the ld. CIT-DR for the Revenue. The ld.AR of the assessee submits that assessee is not Co-operative Bank. Assessee is a Schedule Bank and entitled for deduction under section 36(1)(viia) of the Act. The ld.AR submits that before AO, the assessee submitted revised computation of deduction under section 36(1)(viia) of the Act as there was a mistake apparent in the calculation claim made initially. The AO disallowed the claim by taking view no revised return is filed by assessee and the AO is not entitled to accept revised claim in absence of revised Return of Income as per the decision Hon ble Supreme Court in Goetez India Ltd., vs. CIT 284 ITR 323. The ld. CIT(A), though, accepted the original claim under section 36(1)(viia) of the Act and allow relief to the assessee. However, for deduction @7.5% of maximum provision mandated by la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -terminus with that of the Income-tax Officer, if that be so, there appears to be no reason as to why the appellate authority cannot modify the assessment order on an additional ground even if not raised before the Income-tax Officer. No exception could be taken to this view as the Act does not place any restriction or limitation on the exercise of appellate power. Even otherwise an Appellate Authority while hearing appeal against the order of a subordinate authority has all the powers which the original authority may have in deciding the question before it subject to the restrictions or limitations if any prescribed by the statutory provisions. In the absence of any statutory provision the Appellate Authority is vested with all the plenary powers which the subordinate authority may have in the matter. There appears to be no good reason and none was placed before us to justify curtailment of the power of the Appellate Assistant Commissioner in entertaining an additional ground raised by the assessee in seeking modification of the order of assessment passed by the Income-tax Officer. 32. In case of National Thermal Power Co. Ltd. v. CIT [1998] 229 ITR 383 (SC) when the question ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the return was filed. 36. The Delhi High Court once again in recent judgment in the case of CIT v. Sam Global Securities Ltd. [2014] 360 ITR 682/[2013] 38 taxmann.com 129 observed that the Courts have taken a pragmatic view and not a technical one as to what is required to be determined in taxable income. In that sense assessment proceedings are not adversarial in nature. With these observations Court confirmed the view of the Tribunal reversing the decision of the assessing officer rejecting the claim of the assessee on the ground that no revised return was filed. 37. In case of CIT v. Cellulose Products of India Ltd. [1985] 151 ITR 499 (Guj.), Full Bench of this Court held that merely because a ground has not been raised though it could have been raised in support of the relief sought in the appeal, it cannot be said that such ground cannot be raised before the Tribunal. Such ground can be raised provided it falls within the contours of the subject matter of the appeal. 38. It thus becomes clear that the decision of the Supreme Court in the case of Goetze (India) Ltd. (supra) is confined to the powers of the assessing officer and accepting a claim without revised retur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any such new ground, legal contention or claim. However, it is only the Bombay High Court in the case of CIT v. Pruthvi Brokers Shareholders (P.) Ltd. (supra), which has travelled a little beyond this preposition and come to the conclusion that even if facts necessary to examine such a claim are not placed before the assessing officer and, therefore, not on record, there would be no impediment in the Commissioner (Appeals) entertaining such a claim. Such an issue does not arise in these appeals. We would, therefore, reserve our opinion on this limited aspect of the matter if and when in future the question presents before us in such form. For the present, we answer Questions (3) and (4) against the Revenue and in favour of the assessees in manner described above. (emphasis added by us). 8. In view of the aforesaid legal position, it is clear that the AO is not entitled to entertain fresh claim, however, these restriction is not applicable on the first appellate authority or on the Tribunal. We find that before the AO assessee claimed that due to calculation mistake the assessee claimed deduction under section 36(1)(viia) of ₹ 1.18 Crore, however, they are entitled for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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