TMI Blog2023 (2) TMI 1010X X X X Extracts X X X X X X X X Extracts X X X X ..... was not raised before Assessing Officer at time of filing return of income or by filing a revised return of income. Again, in the case of Karnataka State Co-operative Federation Ltd [ 2021 (3) TMI 694 - KARNATAKA HIGH COURT] the Karnataka High Court held that assessee's fresh claim before appellate authority is entertainable even when same is not claimed in original return of income nor assessee has filed revised return of income to make such claim. In the case of Abhinitha Foundation (P.) Ltd [ 2017 (6) TMI 604 - MADRAS HIGH COURT] the Madras High Court held that even if a claim made by assessee-company does not form part of original return or even revised return, it can still be considered by Assessing Officer as well as appellate authorities in case relevant material is available on record. In the case of Sesa Goa Ltd [ 2020 (3) TMI 793 - BOMBAY HIGH COURT] held that where assessee inadvertently omitted to make claim for deduction under section 10B in respect of two 100 per cent Export Oriented Undertakings, however, all necessary facts for claiming deduction under section 10B were already on record, Commissioner (Appeals) in exercise of his plenary/co-terminus p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent proceedings and in facts of case, appellant had not made fresh claim but merely sought re-computation of tax on capital gains owing to subsequent clarification in law. It is submitted that it be so held now. 2.3. Hon'ble CIT(A) ought to have appreciated that even if claim is treated as fresh claim, then also, appellate authorities are bound to entertain rightful claim made otherwise than by filing revised return. 3. The Hon'ble CIT(A) has erred in confirming the order of AO on ground that neither Finance Act 2017 nor CBDT has provided for any such mechanism to apply rate of 10% as per provisions of section 112(l)(c)(iii) of the Act from AY 2013-14. It is submitted that in absence of any ambiguity in law, clarificatory amendment in law does not require mechanism for its applicability. It is submitted that it be so held now. 4. The Hon'ble CIT(A) ought to have appreciated that when substantive law confers benefit to appellant under statute with retrospective effect, it ought to have been allowed by AO in the assessment. It is submitted that it be so held now. 5. The Hon'ble CIT(A) ought to have held that in the facts and circumstances of the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 016-17. Thereafter, Finance Act 2017 clarified that the above amendment will be applicable retrospectively from assessment year 2013-14 and subsequent years. The said clarification of retrospective amendment came into force when the assessment proceedings were in progress before the AO. Accordingly, during the course of assessment proceedings, the assessee brought to the notice of the AO the amendment made under this section and requested him to tax long-term capital gains at 10%. 4. The AO, however, rejected the contentions of the assessee on the following grounds: 2.5. The appellant even after knowing the difference between provisions of section 112(l)(c)(ii) and 112(l)(c)(iii) opted for provision of section 112(l)(c)(ii) although both the provisions were available while filing return of income. 2.6. The appellant is not eligible to make fresh claim in assessment proceedings which was never made in original/ revised return of income. 2.7. Also, it is contended by AO that if case of appellant was not selected for scrutiny and had not been referred to TPO, appellant could not have put a fresh claim before AO. The intention of the amendment in provision cannot put ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DR agreed that technically the assessee was eligible to be taxed @10% on the capital gains made on sale of shares of its Indian associated, Enterprise Bridgestone India Private Limited, being unlisted shares. However, he reiterated the arguments taken by Ld. CIT(Appeals) in the appellate order that such claim could have been entertained only if the assessee had made such claim by way of filing of revised return of income or in the alternative had the CBDT issued any specific Instruction on how the assessee could have claimed benefit thereof if the time of filing revised return of income was not available. 7. We have heard the rival contentions and perused the material on record. The learned DR before us has agreed that the assessee is technically eligible to be taxed @10% on capital gain of ₹ 6,78,23,37,511/- made by way of sale of shares of its Indian associated Enterprise, Bridgestone India Private Limited, in view of the retrospective amendment to section 112(1)(c)(iii) of the Act, which was applicable with retrospective effect from assessment year 2013-14 onwards. We further observe, neither the AO nor the Ld. CIT(Appeals) in their respective orders have denied the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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