2016 (4) TMI 1227 - AT - Income Tax

Tribunal remits issue for fresh assessment, directs review of documents. Appeal partly allowed.

Abhiniha Foundation Pvt. Ltd. Versus Deputy Commissioner of Income Tax, Company Circle-1 (1), Chennai

The Tribunal remitted the issue back to the Assessing Officer for fresh consideration, directing examination of the assessee's claim based on the ... Non-granting of deduction u/s.80-IB - non-filing of the particular form - claim not made in ROI - Held that:- CIT(A) and Tribunal have power to consider the deduction to assessee to which it was otherwise entitled even though no claim was made by the assessee in the return. The assessee if entitled to a particular claim, which it missed in the return, may claim during appellate proceedings. The assessee should however ensure that all necessary evidence is submitted during assessment proceedings and is available in record. Being so, the claim of assessee is to be examined afresh in the light of document produced by the assessee at the time of assessment. Accordingly, we remit the entire issue to the file of ld. Assessing Officer for fresh consideration. Appeal of assessee is partly allowed for statistical purposes Issues Involved:1. Non-granting of deduction under Section 80-IB of the Income Tax Act.2. The validity of claiming deductions not initially made in the return of income.3. The powers of appellate authorities to entertain claims not made before the Assessing Officer.Issue-wise Detailed Analysis:1. Non-granting of Deduction under Section 80-IB:The assessee filed a return of income for the assessment year 2011-12 without claiming a deduction under Section 80-IB(10) of the Act. During the assessment, the assessee submitted details and Form-10CCB to claim the deduction, which the Assessing Officer (AO) denied. The Commissioner of Income Tax (Appeals) [CIT(A)] upheld the AO's decision, stating that the assessee did not make the claim in the original return and failed to file a revised return.2. Validity of Claiming Deductions Not Initially Made in the Return:The CIT(A) rejected the assessee’s claim, referencing several cases where claims made outside the original return were not entertained. The CIT(A) emphasized that the assessee, being a corporate entity with professional assistance, should have made the claim in the original return. The CIT(A) distinguished the assessee’s case from others by noting the absence of a revised return or revised computation of income.3. Powers of Appellate Authorities:The Tribunal analyzed Section 139 of the Act, which governs the filing and revising of returns. Sub-section (5) allows filing a revised return to correct omissions or wrong statements before the end of the assessment year or before assessment completion. The Tribunal also referenced Article 265 of the Constitution, which mandates that only legitimate tax can be recovered, and Circular No. 14(XL-35) by CBDT, which instructs officers not to take advantage of an assessee’s ignorance.The Tribunal cited several judgments, including Goetze (India) Ltd. v. CIT, which held that claims not made in the return cannot be entertained by the AO without a revised return. However, this decision does not restrict the Tribunal’s powers under Section 254 of the Act. The Tribunal distinguished between fresh claims and revised claims, noting that where necessary evidence is on record, the claim through a letter should be accepted.The Tribunal referenced multiple cases where appellate authorities allowed claims not made in the original return, emphasizing that assessment proceedings should determine the correct taxable income. The Tribunal concluded that appellate authorities have the discretion to entertain additional claims and that the AO should consider the assessee’s claim if all necessary evidence is available.Conclusion:The Tribunal remitted the issue back to the AO for fresh consideration, instructing the AO to examine the assessee’s claim in light of the documents produced during the assessment. The appeal was partly allowed for statistical purposes.Order Pronounced:The order was pronounced on Friday, the 29th of April, 2016, at Chennai.