TMI Blog2022 (4) TMI 577X X X X Extracts X X X X X X X X Extracts X X X X ..... t which did not constitute income of the assessee, in our view would constitute a mistake apparent on record - The Hon ble Delhi High Court [ 2016 (3) TMI 977 - DELHI HIGH COURT] has referred to in this respect to the decision of CIT vs Shelly Products and another [ 2003 (5) TMI 4 - SUPREME COURT] . The Hon ble Delhi High Court has also referred to CBDT Circular No. 14(XL-35) of 1955 dated 11.04.1955, wherein, the CBDT has directed that the officers of the department must not take advantage of ignorance of an assessee as to his rights and that it is one of their duties to assist a tax payer in every reasonable way, particularly, in the matter of claiming and securing relief's and that they should take the initiative in guiding a tax payer where proceedings or other particulars before them indicate that some refund or relief is due to him. Thus in the light of Article 265 of the Constitution of India and in the light of various decisions of the Hon ble Supreme Court and other High Courts of the country, in our view, the lower authorities failed to exercise jurisdiction vested in them under the jurisdiction of section 154 of the Act. Even otherwise the bar, if any, relatin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rn of income filed by the assessee in view of the decision of Hon ble Apex Court in case of Goetze India Ltd. vs CIT in 157 Taxman 1. The Ld. CIT(A) did not consider the fact that the assessee s case is squarely covered by judicial decisions on similar facts in the case of Sharda Cropchem Ltd. vs DCIT in 71 ITR (Trib) 141 DCIT Kashmir Steel Rolling Mills in 130/Asr/2014. Therefore, the action of the Ld. CIT(A) in rejecting the claim of the assessee is unjustified and the claim needs to be allowed. 2. That the Ld. CIT(A) erred in confirming the action of the Ld. AO in rejecting the assessee s rectification petition filed u/s 154 claiming the Subsidy of ₹ 2,92,39,388/- received by the assessee as Industrial Promotion Assistance (IPA) from the state Govt, under West Bengal Industrial Promotion (Assistance to Industrial Units) Scheme, as Capital Receipt in place of Revenue Receipt. The Ld. CIT(A) did not consider the fact that the IPA received by the assessee is a capital receipt as held by the Hon ble Jurisdictional High Court in case of CIT vs Rasoi Ltd in 335 ITR 438. Also, the same is held in favour of the assessee in assessee s own case in earlier and subsequent ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Goetze (India) Ltd. vs CIT (2006) 157 Taxma n 1 (SC). In the said decision the Hon ble Court held that if an assessee fails to make a claim in the return of income then same cannot be made before the AO during assessment proceeding. In my understanding, this decision of SC is very critical and fits in the facts of the present case. The reliance of the AO on this decision is correct and in light of said decision the AO has rightfully rejected the rectification petition of the assessee. Therefore, in my view, the AO s order is correct and needs to be upheld relating to rejection of rectification petition in light of decision of SC in the case of Goetze India Ltd. (supra). 4. Being aggrieved by the said order, the assessee has come before us. 4.1. We have heard the rival contentions of the ld. representatives of both the parties and gone through the records. So far as the claim of the assessee on merits is concerned, the ld. DR has been fair enough to admit that as per the settled position of law by the Hon ble Supreme Court in the case of CIT vs Ponni Sugars Chemicals Ltd. [2008] 306 ITR 392 / 174 Taxman 87 (SC) and further by the decision of Hon ble Supreme Court in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any amount which is non-taxable or is not income within the contemplation of law, the assessee may bring the same to the notice of the Assessing Officer, to which, if, the AO is satisfied, he may grant the assessee necessary relief and refund the tax paid in excess. The Hon ble Delhi High Court has referred to in this respect to the decision of the Hon ble Supreme Court in the case of CIT vs Shelly Products and another reported in 261 ITR 367. The Hon ble Delhi High Court has also referred to CBDT Circular No. 14(XL-35) of 1955 dated 11.04.1955, wherein, the CBDT has directed that the officers of the department must not take advantage of ignorance of an assessee as to his rights and that it is one of their duties to assist a tax payer in every reasonable way, particularly, in the matter of claiming and securing reliefs and that they should take the initiative in guiding a tax payer where proceedings or other particulars before them indicate that some refund or relief is due to him. The relevant part of the order of the Hon ble Delhi High Court in the case of Vijay Gupta vs CIT (supra) is reproduced as under: 17. Article 265 of the Constitution of India reads that No tax sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in guiding a tax payer where proceedings or other particulars before them indicate that some refund or relief is due to him. This attitude would, in the long run, benefit the department, for it would inspire confidence in him that he may be sure of getting a square deal from the department. Although, therefore, the responsibility for claiming refunds and reliefs rests with the assesses on whom it is imposed by law, officers should (a) draw their attention to any refunds or reliefs to which they appear to be clearly entitled but which they have omitted to claim for some reason or other; (b) freely advise them when approached by them as to their rights and liabilities and as to the procedure to be adopted for claiming refunds and reliefs . 23. A reading of the circular shows that a duty is cast upon the assessing officer to assist and aid the assessee in the matter of taxation. They are obliged to advise the assessee and guide them and not to take advantage of any error or mistake committed by the assessee or of their ignorance. The function of the Assessing Officer is to administer the statute with solicitude for public exchequer with an inbuilt idea of fairness ..... X X X X Extracts X X X X X X X X Extracts X X X X
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