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TaxTMI 
TaxTMI 
TaxTMI 
2016 (4) TMI 207
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....ds stated above, the order of the CIT(A)-39, Mumbai may be set aside and that of the Assessing Officer restored." 2. During the course of the hearing, it was stated by the learned counsel of the assessee, at the very outset, that the issue involved in this year is covered by the order of the Tribunal for A.Y 2008-09 in ITA No. 7531/Mum/2011 dt. 26.7.2013, wherein an identical issue has been decided in favour of the assessee by allowing revised claim of the assessee on account of bad debts, made by it during the course of the assessment proceedings. On the other hand, the learned Departmental Representative (in short 'the DR') relied upon the order of the Assessing Officer (in short 'the AO'). 3. We have gone through the orders of the lower authorities as well as order of the Tribunal for A.Y 2008-09. The solitary issue involved in the Revenue's appeal is that in the return of income the assessee had made claim on account of bad debts written off for Rs. 96,35,224/-. During the course of assessment it was found by the assessee that the assessee had by mistake claimed lesser amount on account of bad debts, and therefore, it made further claim on account of bad d....
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....tracted in para 4 of the impugned order. Assessee stated before ld. CIT(A) that actual debts written off in the financial year relevant to the assessment year under consideration is Rs. 1,87,70,011/ and there is a mistake in the return of income. Ld. CIT(A) considered the submissions of the assessee and held that even if the claim is not made in the return of income and it is made before the first appellant authority, the claim can be entertained. The First Appellate Authority referred the decision of the Third Member of Delhi Bench of the Tribunal in the case of JCIT V/s Hero Honda Finlease Ltd reported in 115 TTJ (Del) TM 752, wherein the Tribunal has held as under: "I have carefully considered the questions, the orders of the IT authorities and the rival contentions. The precise difference between the two learned Members is regarding the question whether the CIT(A) ought to have first decided the question of entertainability of the assessee's higher claim of depreciation by a letter and not by a revised return, before deciding the merits of the claim. In Goetze (India) Ltd. v. CIT (2006) 204 CTR (SC) 182 : (2006) 284 ITR 323 (SC), the Supreme Court held that the assessee c....
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....er year of the aggregate amount of Rs. 82,91,575/- had been disallowed in the earlier year. 6. The above facts have not been disputed by ld. DR that the assessee has actually written off in the assessment year under consideration as bad debts of Rs. 1,87,70,011/-. The Honble Apex Court in the case of T.R.F. Ltd. V/s CIT (2010) 323 ITR 397 (SC) has held that "w.e.f. 1-4-1989, it is enough if bad debt is written off as irrecoverable in accounts of assessee to satisfy the condition of Section 36(1)(vii) of the Income-tax Act, 1961". In view of the above amendment w.e.f. 1-4-1989 the assessee is entitled to claim deduction as it would satisfy the purpose of the Act. In view of above, in the facts of case, we uphold the order of ld. CIT(A) and reject ground of appeal taken by the department. Hence, appeal of the department is dismissed." 6. We have gone through the aforesaid judgment of the Tribunal and other judgments relied upon by the Tribunal in its order. The claim on account of bad debts written off is now settled on the basis of judgment of the Hon'ble Supreme Court in the case of T.R.F Ltd. v. CIT, 323 ITR 397. There is no dispute on facts that bad debts have been written ....
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....ing the year of assessment in question, it must be taken that it had resiled from the position which it had wrongly taken while filing the return. Quite apart from it, it was incumbent on the income-tax department to find out whether a particular income was assessable in the particular year or not. Merely because the assessee wrongly included the income in its return for a particular year, it could not confer jurisdiction on the department to tax that income in that year even though legally such income did not pertain to that year. Therefore the income from dividend was not assessable during the assessment year 1958-59, but it was assessable in the assessment year 1953-54. It could not, therefore, be taxed in the assessment year 1958-59." 8. Further reliance is placed by us on another judgment of Hon'ble Gujarat High Court, in the case of, S.R. Koshti 276 ITR 165 (Guj) in which relief was granted to assessee with following observations: "The authorities under the Act are under an obligation to act in accordance with law. Tax can be collected only as provided under the Act. If an assessee, under a mistake, misconception or on not being properly instructed, is over-assessed, th....
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....ed that: "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. We do not see any reason to restrict the power of the Tribunal under s. 254 only to decide the grounds which arise from the order of the CIT(A). Both the assessee as well as the Department have a right to file an appeal/cross-objection before the Tribunal. We fail to see why the Tribunal should be prevented from considering questions of law arising in assessment proceedings although not raised earlier." 15. Reference may also be made to Gedore Tools (P) Ltd. vs. CIT (2000) 161 CTR (Del) 472 : (1999) 238 ITR 268 (Del), wherein the apex Court decision in National Thermal Power Co. Ltd. (supra) has been followed. 16. In the case of Jute Corporation of India Ltd. vs. CIT (1990) 88 CTR (SC) 66 : (1991) 187 ITR 688 (SC) while dealing with the powers of the AAC, the Supreme Court observed that : "An appellate authority has all the powers which the original authority may have in deciding the question before it subject to the restr....