TaxTMI 
TaxTMI 
2014 (6) TMI 291
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....e that it was entitled to deduction under section 10B of the Income-tax Act as it is a 100 per cent. export oriented unit and entitled for exemption as it fulfils all the conditions laid down under section 10B of the Income-tax Act. It is the claim of the assessee that it had also got prepared an audit report in Form 56G as also tax audit report (Form 3CD). However, inadvertently and on account of mistake by the operator in the office of the chartered accountant, instead of exemption having been claimed under section 10B in the return, it was wrongly typed as 80-IB and this clerical mistake was not attributable on the part of the assessee but attributable in the office of the chartered accountant while e-filing return of income which was submitted on the last day on September 30, 2008. It was the further claim of the assessee that all the ingredients have been fulfilled of a claim under section 10B and even in the past years, the claim was being regularly allowed. 3. A detailed explanation appears to have been filed by the assessee before the Assessing Officer (for short, "the AO") mentioning about the facts and also requesting the Assessing Officer to consider the mistake and in ....
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....lfilled and this being a statutory claim, the respondent-assessee ought to have been more vigilant and careful. He further contended that section 80A(5) clearly postulates that the claim has to be made in return of income and when in the return of income there was no claim under section 10B, then the Assessing Officer was within its jurisdiction to disallow the entire claim. He further contended that this section also postulates that if the claim was not made in the return of income, then the assessee had opportunity to file a revised return. Then certainly, the assessee could have enured for exemption but since no regular revised return having been filed, the Assessing Officer had correctly come to the conclusion about nongrant of deduction under section 10B. He further contended that the ques tion of verification of export realization and other conditions will come only once the question of granting exemption under section 10B is settled. He further contended that if the assessee had been allowed deduction in the past, it will not make any difference as the exemption is to be allowed on the facts of the particular year and on year to year basis. He strongly relied upon the judgme....
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.... Goetze (India Ltd. (supra) supports the case of the assessee rather than the Revenue. 12. The hon'ble Delhi High Court in the case of CIT v. Jai Parabolic Springs Ltd. [2008] 306 ITR 42 (Delhi), held as under : "12. As clear from the above said facts, there is no dispute that customer introduction charges did not represent revenue expenditure. The principal ground taken by the Revenue in this appeal is that if no claim for deduction of the amount was made in the return of income, then deduction would not be allowed. 13. Section 254 of the Act says that the Appellate Tribunal may, after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit. 14. Reference may be made to National Thermal Power Co. Ltd. v. CIT [1998] 229 ITR 383 (SC), where the Supreme Court observed that (page 386) : The power of the Tribunal in dealing with appeals is thus expressed in the widest possible ....
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....spondent made the claim not only before the Assessing Officer, but also independently before the Commissioner of Income-tax (Appeals) and the Tribunal. The question that arises in this appeal is whether the Commissioner of Income-tax (Appeals) and/or the Income-tax Appellate Tribunal had the jurisdiction to consider a new/additional claim/deduction subsequently raised before the Assessing Officer which, through inadvertence, was not claimed in the return of income filed by the respondent. The question is answered in the affirmative by several judgments . . . We find well founded, Mr. Mistri's submission that even assuming that the Assessing Officer is not entitled to grant a deduction on the basis of a letter requesting an amendment to the return filed, the appellate authorities are entitled to consider the claim and to adjudicate the same." 15. The hon'ble Bombay High Court, in the case of Sanchit Software and Solutions P. Ltd. v. CIT [2012] 349 ITR 404 (Bom) has held as under : "Income-tax Department cannot take advantage of the assessee's mistakes in not claiming exemption in inc....
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....tion of income. In our view, the mentioning of section 80-IB was only clerical mistake and with all fairness as per the facts and circumstances and as per the previous claims in tax calculation under section 115J, the assessee was legally entitled for this benefit. It was also admitted that the assessee had neither changed/revised the financial statements nor tax audit report (Form 3CD) originally filed by it. The assessee had only submitted the audit report in Form 56G which was not enclosed with the return in view of the provisions of rule 12 of the Income-tax Rules. The purpose of the audit report in Form 56G is totally different than the purpose of the audit report in Form 3CA annexed with Form 3CD. It is also an admitted fact that the financial statement also remained the same. In our view, the spirit behind this statement must be that the assessee should have claimed the exemption in his return and filed the same within due date and in the instant case, the assessee on the facts available on record clearly shows that the claim was duly made but the section was inadvertently wrongly mentioned and this fact came to the notice of the assessee at a later point of time when pointe....
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....the subordinate authority might have in the matter. As the assessee has filed a revised computation, in our view, it holds good as except the change of section from 80-IB to 10B, all other supporting material remained the same including the audit report claiming such exemption. The Bombay High Court in the case of CIT v. Prabhu Steel Industries P. Ltd. [1988] 171 ITR 530 (Bom) held that where a claim for special deduction was made by the assessee not in his return but in the course of the assessment proceedings and the Assessing Officer failed to consider the same, it was open to the appellate authority to entertain the claim. The hon'ble apex court in the case of CIT v. Kanpur Coal Syndicate [1964] 53 ITR 225 (SC) observed that the power of the Commissioner of Income-tax (Appeals) sitting in appeal over an assessment were plenary and co-terminus with those of the Assessing Officer and that he can do what the Income-tax Officer can do and also direct him to do what he has failed to do and, in our view, the Commissioner of Income-tax (Appeals) indeed has powers to examine the assessee's claim on the merits by virtue of section 250(5). In that case, the claim was first time m....