TaxTMI 
TaxTMI 
2013 (2) TMI 319
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....elow are not justified in not allowing the claim of Rs.3,86,934/- towards depreciation on car under the facts and in the circumstances of the appellant's case. 4. Briefly stated the facts are as follows:- The assessee is an individual. He is a real estate broker and agent. For the year under consideration, the assessee filed the e-return on 29/2/2008 declaring an income of Rs.38,02,406/-, which consisted of the following:- i) Income from house property Rs.58,500/- ii) Bank interest Rs.2,03,606/- iii) Commission Rs.35,40,000/- The assessment was taken up for scrutiny by issuance of notice under section 143(2) of the Act. During the course of assessment proceedings, the assessee filed a revised return of income on 28/7/2009 declaring a total income of Rs.34,15,470/- after claiming depreciation on the car amounting to Rs.3,86,934/-. The claim of depreciation of Rs.3,86,934/- was not made in the original return filed. The scrutiny assessment was completed vide order dated 31/12/2009 accepting the income declared in the original return filed on 29/2/2008. The assessee's plea to consider the revised return and the revised balance sheet was not accepted by the A....
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....ned AR also strongly relied on the Board's Circular No.14 (XI-35) of 1955 dated April 11, 1955, which is reproduced at para 4.2 of the impugned order of the CIT(A). 9. Per contra, the learned DR submitted that the assessee is not authorized to make claim of deduction without filing a revised return. For this proposition, the learned DR relied on the judgement of the Apex Court in the case of Goetze (India) Ltd. v CIT reported in 284 ITR 323. It was submitted that the original return was filed belatedly on 29/2/2008, hence, the revised return was filed on 28/7/2009 under section 139(5) of the Act cannot be taken cognizance. 10. We have heard the rival submissions and perused the materials on record. It is not in dispute that in the instant case, return under section 139(1) was filed belatedly. Hence, the assessee is not entitled to file a revised return under section 139(5) of the Act going by the ratio laid down by the Hon'ble Apex Court in the case of Kumar Jagadish Chandra Sinha cited supra. However, the depreciation allowance under Explanation 5 of section 32 of the Act is mandatory allowable if the said asset is used for the purpose of business of the assessee. In other w....
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.... taken cognizance of since the original return was filed belatedly. However, an additional claim could be made before the appellate authority and the appellate authority is duty bound to consider the same. There are number of judgements which clearly establish that the assessee is entitled to raise additional grounds, not merely in terms of legal submissions but in respect of new claim not made in the return filed. 10.3 The Hon'ble Supreme Court in the case of Jute Corporation of India Limited v CIT reported in 187 ITR 688 was considering the following facts:- For the assessment year 1974-75, the appellant did not claim any deduction of its liability towards purchase tax under the provisions of the Bengal Raw Jute Taxation Act, 1941, as it entertained a belief that it was not liable to pay purchase tax under that Act. Subsequently, the appellant was assessed to purchase tax and the order of assessment was received by it on 23rd November, 1973. The appellant challenged the same and obtained a stay order. The appellant also filed an appeal from the assessment order under the Income Tax Act. It was only during the hearing of the appeal that the assessee claimed an additional ded....
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....ority 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 ITO". (emphasis supplied)". It is clear, therefore, that an assessee is entitled to raise not merely additional legal submissions before the appellate authorities, but is also entitled to raise additional claims before them. The appellate authorities have the discretion whether or not to permit such additional claims to be raised. It cannot, however, be said that they have no jurisdiction to consider the same. They have the jurisdiction to entertain the new claim. That they may choose not to exercise their jurisdiction in a given case is another matter. The exercise of discretion is entirely different from the existence of jurisdiction. 10.4 The Full Bench of the Hon'ble Mumbai High Court in the case of Ahmedabad Electricity Limited v CIT (1993) 199 ITR 351 considered a similar situation. In that case, the appella....
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....5 The Hon'ble Supreme Court in the case of National Thermal Power Company Limited v CIT (1998) 229 ITR 383 was considering a case where the assessee had deposited its funds not immediately required by it on short term deposits with banks. The interest received on such deposits was offered by the assessee itself for tax and the assessment was completed on that basis. Even before the Commissioner of Income-tax (Appeals), the inclusion of this amount was neither challenged by the assessee nor considered by the Commissioner of Income-tax (Appeals). The assessee filed an appeal before the Tribunal. The inclusion of the amount was not objected to even in the grounds of appeal as originally filed before the Tribunal. Subsequently, the assessee by a letter, raised additional grounds to the effect that the said sum could not be included in the total income. The assessee contended that on an erroneous admission, no income can be included in the total income. It was further contended that the ITO and the Commissioner of Income-tax (Appeals) had erred and failed in their duty in adjudicating the matter correctly and by mechanically including the amount in the total income. It is pertinent to n....
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....dings although not raised earlier." 10.6 The Hon'ble Supreme Court in the case of Goetze (India) Limited v. Commissioner of Income-tax (supra) relied on by the CIT is distinguishable on the facts. The question before the Court was whether the appellant-assessee could make a claim for deduction, other than by filing a revised return. After the return was filed, the appellant sought to claim a deduction by way of a letter before the Assessing Officer. The claim, therefore, was not before the appellate authorities. The deduction was disallowed by the Assessing Officer on the ground that there was no provision under the Act to make an amendment in the return of income by modifying an application at the assessment stage without revising the return. The Commissioner of Income-tax (Appeals) allowed the assessee's appeal. The Tribunal, however, allowed the department's appeal. In the Supreme Court, the assessee relied upon the judgment in National Thermal Power Company Limited contending that it was open to the assessee to raise the points of law even before the Tribunal. The Supreme Court held :- "4. The decision in question is that the power of the Tribunal under....