TMI Blog2009 (1) TMI 300X X X X Extracts X X X X X X X X Extracts X X X X ..... 10) TMI 32 - GUJARAT HIGH COURT] and in the case of Shivalika Co-operative Group Housing Society Ltd. vs. ITO [ 2006 (6) TMI 142 - ITAT DELHI] . Admittedly, this claim was raised after the expiry of the period for filing a revised return. AO following the judgment of the apex Court in the case of Goetze (India) Ltd. vs. CIT [ 2006 (3) TMI 75 - SUPREME COURT] did not entertain the claim and rejected it. The CIT(A) confirmed the order of the AO having observed that AO has passed an order following the order of the apex Court. In NTPC vs. CIT [ 1996 (12) TMI 7 - SUPREME COURT] which was passed by a Larger Bench of the apex Court comprising of 3 Judges. But, in that case, their Lordships have not held anywhere that any ground can be raised at any point of time before any of the appellate authorities. They have passed a qualified judgment and also explained the circumstances under which new ground or additional ground can be raised before the Tribunal. No doubt, they have held, the Tribunal have jurisdiction to examine a question of law which arises from the facts as found by the IT authorities and having a bearing on the tax liability of the assessee. But, they further held the T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing with the same and giving his finding on the same. 2. Without prejudice to the above ground, the learned CIT(A) has erred in confirming levy of tax on Rs. 25,81,607 received from the members for development of their property used for residence on the ground of mutuality. 3. The learned CIT(A) has erred in confirming levy of Rs. 1,59,467 being interest from bank and not holding that such receipt/income is not taxable on the ground of mutuality. 4. The learned CIT(A) has erred in confirming the receipts of the co-operative society and not following principles of not taxing an income/receipt on the ground of mutuality as laid down by the apex Court in case of the Chelmsford Club vs. CIT (2000) 159 CTR (SC) 235 : (2000) 243 ITR 89 (SC). 5. The assessee reserves right to add, amend or alter any grounds of appeal as and when found necessary." 2. Though the assessee has raised various grounds, but, they all relate mainly on two issues viz., (1) Whether the new claim raised by the assessee without filing a return before the AO under s. 139 can be entertained by the AO? and (2) Whether the CIT(A) can entertain that claim or direct the AO to entertain the same if the AO did not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount of NOC. It is at the time of the assessment stage in the proceeding under s. 143(3), the appellant raised this question of taxability. The appellant claimed that at the time of assessment proceedings the time for filing a revised return has expired. Now, the question arises as to whether such kind of claim can be entertained at the assessment stage by the AO or not whereas the appellant himself offered the amount as an income in the return of income. The decision of Hon'ble Supreme Court in the case of Goetze (India) Ltd. has specifically answered this question which was against the assessee. The Hon'ble Supreme Court held that the AO is not under legal obligation to entertain such claim which has not been filed in a revised return. I find that the aforesaid ratio of the decision is fully applicable in the present case. Hence, I accord the finding of the AO in toto. As a result, appeal is dismissed on this ground." 5. Now, the assessee has preferred an appeal before the Tribunal and placed a heavy reliance upon the judgment of the Larger Bench of the apex Court in the case of National Thermal Power Co. Ltd. vs. CIT (1999) 157 CTR (SC) 249 : (1998) 229 ITR 383 (SC) and other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal can admit the same, if all facts relating to that issue are available before the Tribunal and no investigations or verifications of the facts are required. 8. In the instant case, the assessee has raised an issue relating to doctrine of mutuality for which it is to be verified whether the funds collected by the assessee from its members were utilized for the benefit of the members and not otherwise. Since no material is available on record in this regard, the issue has to go for verification to the AO. If the Tribunal instead of asking the AO to entertain the impugned claim, admit this ground itself, the Tribunal has to send this issue back to the AO for verification and this act of the Tribunal will also be against the spirit of the judgment of the apex Court in the case of Goetze (India) Ltd. vs. CIT. In these circumstances, the Tribunal being the subordinate authority to the Supreme Court, has no power either to direct the AO to admit the impugned claim adjudicate or ask the AO to verify the facts. 9. Having heard the rival submissions and from careful perusal of the record we find that undisputedly in the original return of income the assessee has offered the receipts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n this case are extracted hereunder: "2. The question raised in this appeal relates to whether the appellant assessee could make a claim for deduction other than by filing a revised return. The assessment year in question was 1995-96. The return was filed on 30th Nov., 1995, by the appellant for the assessment year in question. On 12th Jan., 1998, the appellant sought to claim a deduction by way of a letter before the AO. The deduction was disallowed by the AO on the ground that there was no provision under the IT Act to make amendment in the return of income by modifying an application at the assessment stage without revising the return. 3. This appellant's appeal before the CIT(A) was allowed. However, the order on the further appeal of the Department before the Tribunal was allowed. The appellant has approached this Court and has submitted that the Tribunal was wrong in upholding the AO's order. He has relied upon the decision of this Court in National Thermal Power Co. Ltd. vs. CIT (1999) 157 CTR (SC) 249 : (1998) 229 ITR 383 (SC), to contend that it was open to the assessee to raise the points of law even before the Tribunal. 4. The decision in question is that the power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined to admit it and the matter went to the apex Court and their Lordships of the apex Court have held that if as a result of judicial decision while the appeal is pending before the Tribunal, if it is found that non-taxable item is taxed or as permissible deduction is denied, there is no reason why the assessee should be prevented from raising that question before the Tribunal for the first time so long as relevant facts are on record in respect of that item. Their Lordships further clarified that there is no reason to restrict the powers of the Tribunal und6r s. 254 only to decide the ground which arises from the order of the CIT. The relevant observation of the apex Court are extracted hereunder: "Under s. 254 of the IT Act, the Tribunal may, after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit. The power of the Tribunal in dealing with appeals is thus expressed in the widest possible terms; The purpose of the assessment proceedings before the taxing authorities is to assess correctly the tax liability of an assessee in accordance with law. If, for example, as a result of a judicial decision given while the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scretion to allow or not allow a new ground to be raised. But, where the Tribunal is only required to consider a question of law arising from the facts which are on record in the assessment proceedings we fail to see why such a question should not be allowed to be raised when it is necessary to consider that question in order to correctly assess the tax liability of an assessee." 13. We have also examined the other order of the Tribunal, but they all were rendered on different facts. Turing to the facts of the case, we find that AO has passed an order following the judgment of the apex Court in the case of Goetze (India) Ltd. vs. CIT. Now, the question arises; can the Tribunal pass any order and direct the AO to adjudicate the claim of the assessee which was not entertained by the AO in the light of the judgment of the apex Court? The answer is certainly 'No'. If the Tribunal passes such order, it would certainly be against the spirit of the judgment of the apex Court. More so, it is a settled position of law that when a particular act or a power cannot be exercised directly by an authority, that act cannot be done indirectly under the garb of directions of the appellate authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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