AI Drafter 
TaxTMI 
TaxTMI 
2018 (12) TMI 1562
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....03-2013. 3. In the assessment order, the AO has observed that the assessee has efiled its return of income on 30-09-2011 declaring income of Rs. 5.78 crores. During the year under consideration, the assessee has completed its on-going project named Chandivali Project, which was a SRA project (Slum Rehabilitation Scheme project). The assessee claimed deduction u/s 80IB(10) of the Act on the income derived from the above said project to the tune of Rs. 447.92 crores in the return of income filed by it. The assessee also declared interest income, income from generation of electricity from its Wind Mill project. 4. As per the SRA scheme, the assessee has borne construction cost of 12500 units along with shops, balwadis, school infrastructure etc., with inner roads. The assessee has also received TDR (Transferrable development rights) under this project. The assessee has followed Project Completion Method for offering income from this project. Since the project was completed during the year under consideration, the assessee declared income from this project during the instant year and has also claimed deduction u/s 80IB(10) of the Act. The income so declared by the assessee includ....
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....f Rs. 1.12 crores on sale of scrap. All these transactions were confronted to Shri Ramesh S Shah, partner of assessee firm, during the course of search and he, in the statement recorded from him u/s 132(4) of the Act, admitted that these receipts were not recorded in the books of accounts and also agreed to disclose the same in the return of income. With regard to the receipts mentioned in item (a) above, in reply to question no.20 posed to him, he stated that the cash receipts as receipts on sale of TDRs. With regard to receipts mentioned in item (b) above, the transactions mentioned under the name of M/s Satara Properties (India) P Ltd and M/s Khyati Realtors were identified as belonging to the assessee herein. He replied that they represent cash received for various miscellaneous transactions done by the assessee (M/s Sumer Corporation) with M/s Satara Properties (India) P Ltd & M/s Khyati Realtors. The transaction mentioned in item (c) above was stated to be the unaccounted amount realised on sale of scrap generated from the Chandivili project. The aggregate amount of all the three items was Rs. 60.91 crores. Besides the above, the assessee also accepted that purchases to th....
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....of same income. 11. The AO, however, took the view that the above said claims of the assessee cannot be considered as mistakes apparent from record within the scope of sec.154 of the Act. The AO has also discussed the principles relating to rectification of mistakes apparent from record by placing reliance on certain case laws. The AO observed that he has given proper reasons for assessing the amount of Rs. 60.91 crores as income under the head Income from other sources. He further observed that the assessee has accepted the said findings given in the assessment order by not filing appeal and hence it has attained finality. He also observed that the assessee has not given valid reasons for not accounting these cash receipts in the regular books of accounts. Accordingly, he rejected the rectification petition filed by the assessee. The assessee challenged the same by filing appeal before Ld CIT(A). 12. In the appellate proceedings, the Ld CIT(A) upheld the view taken by the AO. In this regard, the Ld CIT(A) has also referred to certain decisions which explained the meaning of "mistakes apparent from record". The ld CIT(A) held that the AO has taken a plausible view in assessin....
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.... "5. It is clear that the ground which was urged before the High Court and which seemed to find favour with it was that the question whether the amending Act applied to assessments which were already completed was a highly debatable question and, therefore, it was not a case of an error apparent on the face of the record which entitled the AAC to rectify his predecessor's order but the question, thus raised would, in our view, arise only if it is really a case of completed assessment in the literal sense of the word, it may be pointed out that this very aspect of the matter was pressed in service in the Bombay Dyeing & Mfg. Co. Ltd.'s case (supra)(34 ITR 143) and this Court while negativing the contention has taken the view that the assessment order that had been initially passed in that case (which was under section 18A(5) of the Indian Income-tax Act, 1922 ('the 1922 Act') could not be said to have become final in the literal sense of the word and in that behalf this Court pointed out that irrespective of the question whether any appeal had been preferred or not against it that original order was liable to be modified or rectified under section 35 of the ....
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.... be held that the AAC's order dated 26-5-1970 had not become final in the literal sense of the word notwithstanding the fact that no appeal had been preferred against that order or that the requisite period for appeal was allowed to expire. The said order was and continued to be liable to be modified under section 35(7) and in this view of the matter the assessee herein also would not be in a position to invoke the principle of finality of orders or the sanctity of the existing rights which are said to have been acquired by her under the initial order. In view of the above said decision of Hon'ble Supreme court, we agree with the contentions of the assessee that there is no bar in moving rectification petition against an assessment order within the period prescribed under the relevant provisions, which has not been appealed against. In the instant case, there is no dispute that the assessee has moved the rectification petition within the period prescribed u/s 154 of the Act. 15. The Ld A.R submitted that the assessee has been executing only one project, viz., Chandivali Housing Project and has claimed deduction u/s 80IB(10) of the Act in respect of that project only. Acco....
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....and Gains of Business or Profession" instead of the residuary hear being "Income from Other Sources". . 4.3. Cash receipts ofRs. 1,12,79,442/- from sale of Scrap i. Cash receipts of Rs. 1,12,79,442/- from sale of scrap as mentioned on page no. 1 of Annexure A-5 pertains to receipts from sale of scrap as on the seized page no. 1 against s. no 3 to 6, aggregating to Rs. 1,12,79,442/- "Rahim Bhai Chandaivali - SCORP" is mentioned. ii. Thus, the same should be taxed under the head "Profit and Gains of Business or Profession" instead of the residuary hear being "Income from Other Sources". 4.4. Application of Income of Rs. 9,00,00,000/- towards Chandivali Housing Project: i. Application of Income of Rs. 9,00,00,0007- towards Chandivali Housing Project which is disallowed by the Assessing Officer vide order u/s. 143(3) of the Act ' dated 28.03.2013. Thus the deduction u/s. 80-18(10) should be increased by the same amount. 4.5. Bogus Purchase of Rs. 29,92,087/-: i. Bogus Purchase of Rs. 29,92,0877- declared in the hands of the Assessee should added back to the profit of the Chandivali Project. Thus, the deduction u/s. 80-1....
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.... (VI) Under the Scheme of Act, the income is assessed to tax under various heads. All the heads of income must be exhausted/excluded before taxing an income under the head "income from other sources":- (a) S.G. Mercantile Corporation P Ltd vs. CIT (83 ITR 700)(SC) (b) CIT vs. T.P. Sidhwa (1982)(133 ITR 840)(Bom) (c) Bihar State Co-op Bank Ltd vs. CIT (39 ITR 115)(SC). Non-consideration of above said decisions is an error apparent from record. (VII) The deductions under Chapter VIA should be restricted to the amount of Gross Total income, if Gross total income works out to less than the eligible amount of deduction. (a) CIT vs. J.B.Boda & Co. P Ltd (ITA No.3224 of 2009)(Bom) (b) CIT vs. Tridoss Laboratories Ltd (2010)(328 ITR 448)(Bom) (c) CIT vs. Eskay K'nit (India) Ltd (ITA No.184 of 2007)(Bom) The AO has not followed the above cited binding decisions. (VIII) If an order has been passed on mistaken assumption and without considering the materials available on record, then it deserves to be rectified. (a) Neeta Shah and Ors vs. CIT (191 ITR 77)(Kar) (b) Kesoram Industries Ltd vs.....
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....them and the assessee. 20. It is the contention of learned AR that the assessee has executed only one project, viz., Chandivali project and received TDR in respect of that project only. The said project is eligible for deduction u/s 80IB(10) of the Act. Hence the on money received by the assessee in the course of sale of TDRs related the above said project only. Even the document seized during course of search also clearly states that cash receipts pertain to sale of TDRs. We also notice that the seized document also contains TDR number, area and amount received alongwith computation. Accordingly, the learned AR submitted that there cannot be two views in this respect. He submitted that the said document was put to Mr. Ramesh S. Shah, partner of the assessee and he has admitted the said receipts as undisclosed income of the assessee-firm. Accordingly, the Ld A.R submitted that the view taken by the Assessing Officer is not in accordance with evidence available on record and hence there is no scope for assessing the same as income from other sources. The Ld A.R further submitted that the Hon'ble Bombay High Court in the case of Sheth Developers (supra) has held that on money ....
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....e decisions relied upon by the Ld D.R are given below:- (a) CIT vs. Shelcon Properties (P) Ltd (2014)(44 taxmann.com) 170)(Cal) (b) Suolificio Linea Italia (India) P Ltd Vs. JCIT (Cal) (c) Saffire Garments vs. ITO (2012)(28 taxmann.com 27)(SB) (d) Shri Dwarkadas G Panchmatia vs. ACIT (ITA No.4727/Mum/2012) (e) ITO vs. Yashashvi Developers (ITA No.3645/Mum/2012) 22. We noticed that the present appeal is emanating from the order passed by the Assessing Officer u/s. 154 of the Act. The Scope of provisions of section 154 of the Act is only to find out as to whether there are mistakes apparent from record in the assessment order passed by the Assessing Officer or not. The question as to what constitutes "mistakes apparent from record" is well settled and the various propositions submitted by the assessee has been discussed supra. Before us, the Ld D.R has raised a legal contention, as discussed in the preceding paragraph. Subsequently, the revenue has also filed Cross objection raising very same legal contentions. However, we prefer to deal the contentions of revenue with regard to the legal issue urged by them separately. 23. We shall ....
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....aid business. The decision rendered by Hon'ble jurisdictional High Court in the case of Sheth Developers (supra) also support this view. 24. We noticed that the Assessing Officer has allowed deduction u/s. 80IB(10) of the Act in respect of income from building project already disclosed by the assessee. It appears that the Assessing Officer has proposed to assess the above said receipt under the head "income from other sources" only for the purpose of rejecting claim of deduction u/s. 80IB(10) of the Act on the above said income. The foregoing discussions would show that the decision so taken by the Assessing Officer is contrary to the decision rendered by Hon'ble Supreme Court in the case of Lakhmichand Baijnath (supra). The fact that the assessee has completed only one project, viz., Chandivali project and further the TDR was received in connection with that project is not denied, in which case, the impugned receipts have to considered as business income only as per the decision rendered by Hon'ble Supreme Court in the above said case. Hence non-consideration of decision rendered by Hon'ble Supreme Court results in mistake apparent from record. The claim of the assessee als....
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.... the AO to reject the receipts as related to business of the assessee is against the facts available on record. First of all, the Ld A.R submitted that if the impugned amounts are considered to be amounts received by M/s Satara Properties and M/s Khyati Associates, then there is no necessity for the assessee to offer the same as its income. Since the assessing offier has already accepted the income of Rs. 11.79 crores and Rs. 14.00 crores aggregating to Rs. 25.79 crores offered by the assessee, the AO was not justified in taking the view that the assessee might not have received the amounts. Secondly, the Ld A.R submitted that the following materials available on record has been completely ignored by the assessing officer:- (A) Transactions with M/s Satara Properties India Ltd:- (a) MOU/Agreement entered between the assessee and the above said party for sale of TDR (Pages 89, 97 to 110, 111 and 157 to 162 of Paper book) seized from the assessee. (b) Seized Ledger a/c of Satara Properties India Ltd showing receipts from sale of TDR (Pg 111 and 163 to 166 of Paper book) (c) Letter dated 26-06-2012 filed before the AO (Pages 251 to 253 of paper book....
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....lowing the same, we set aside the order passed by Ld CIT(A) on this issue and direct the AO to assess the amount of Rs. 25.79 crores as business income of the assessee and consequently allow the deduction u/s 80IB(10) of the Act on the above said income. 28. The next item of receipt is cash of Rs. 1.12 crores received on sale of Scrap. The AO assessed the same as income under the head income from other sources, only for the reason that the assessee did not furnish the yearwise breakup of generation of scrap and the details of parties to whom scrap was sold. Further the AO has also observed that there is a possibility that scrap might have been generated from windmill farm also. 29. It is the submission of the assessee that the assessee has generated scrap from its construction activities only and this fact has been accepted by the AO in AY 2009-10. Further the receipts on sale of scrap was assessed as business income in AY 2009-10. The Ld A.R further submitted that there is no material available on record to show that the assessee could have generated scrap from any other source, since the assessee was executing only one project, viz., Chandivali project. There is also no mat....
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....ncreased its work in progress by Rs. 9.00 crores by claiming the same as application of income. Since the said expenditure is not supported by any evidence, the AO disallowed the same. The Ld CIT(A) held that the claim of the assessee may have bearing on the closing stock without affecting the Profit and Loss account. However, he expressed the view that this amount would fall outside the scope of sec.154 of the Act. 33. We heard the parties on this issue. The assessee has offered income to the tune of Rs. 60.91 crores and hence it has increased its work in progress by Rs. 9.00 crores as application of income out of Rs. 60.91 crores. Since the income has already been taxed, it is the contention of the assessee, that the same would result in double taxation, if the claim of application is rejected. Even though the Ld CIT(A) has expressed the view that this issue may fall outside the scope of sec.154 of the Act, he has not given any specific direction to the AO. The assessee, in the alternative contended that where an expenditure is disallowed, it will go to increase the profits eligible for deduction u/s 80IB(10) of the Act. In this regard, the assessee placed its reliance on the ....
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....9;ble SC in the case of United India Insurance Vs. Rajendra Singh(2000) 3 SCC 581 in cases of fraud, set-aside the assessment, to the file of the A.O. for fresh assessment, directing the Assessing Officer, to only consider the return filed on 29.02.2012, on the basis of fact that the entire edifice on which the earlier assessment order dated 28.03.2013 was made i.e the return purportedly filed on 30.09.2011 and now proved forged, has now collapsed?" 35. The Cross objection filed by the assessee is barred by limitation. The Registry initially intimated the revenue that the cross objection filed by it is barred by limitation by 4 days. In response thereto, the AO has filed a petition requesting the bench to condone the delay. The said petition reads as under:- 1. I, Manoj Tripathi, Dy CIT Central Circle 5(3), Mumbai having my office at Pr CIT Central 3,Mumbai do hereby solemnly affirmed and state as under : 2. The assesse had filed the copy of Return of Income vide ack no 34552817130092011 dated 30.09.2011. Subsequently the assessee had filed another ack of return of income 345528171290212 dated 29.02.2012. 3. The AO accepted the Return of Income filed b....
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.... 2) The Respondents prays that the ROI filed by the assessee vide ack no.34552817130092011 dated 30-09-2011 is not genuine and the same has been confirmed by the Central Processing Centre, the authority for "E filing of returns". 3) The Respondents prays that the assessee has failed to satisfy the primary condition of section 80AC which mandates the filing of return of income on or before the due date specified u/s sub. Section (1) of 139 of the I T Act, 1961 and as such is ineligible for claim of entire 80IB(10) deduction of Rs. 445,62,89,140/- (Rs.388,00,68,095/- + Rs. 60,91,56,178/-.) 37. The revenue has not filed copy of approval, if any, granted by Ld Pr. CIT to the reframed grounds of Cross objection filed by the AO. 38. Be that as it may, the only issue urged by the revenue is that the return of income claimed to have been filed by the assessee on 30-09-2011 is forged one and the assessee has actually filed its return of income for the year under consideration only on 29-02-2012, i.e., beyond the due date prescribed u/s 139(1) of the Act. Hence the assessee's claim for deduction u/s 80IB(10) of the Act is liable to rejected in toto in view of the provisions....
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....he power to file Cross objections is given to both the assessee as well as the revenue against any part of the order passed by Commissioner (Appeals), notwithstanding the fact that either of the parties have not preferred appeal. Through Cross objections, the parties can challenge any part of the order passed by Commissioner (Appeals). An exception has been provided to the above said conditions by Hon'ble Supreme Court in the case of National Thermal Power Corporation Ltd cs. CIT (1998)(229 ITR 382), wherein it was held that the legal issues going to the root of the matter can be agitated at any stage, provided all the facts relating thereto are already available on record. 40. With the support of these legal propositions, we shall now examine the cross objection filed by the revenue. For this purpose, it is necessary to dwell upon the facts of the case, while led the revenue to file this Cross Objection. As per the facts available on record, (a) the assessee has claimed to have filed its return of income for the year under consideration on 30-09-2011 vide e-acknowledgement number 34552817130092011. (b) The assessee furnished a letter dated 30-09-2011 to the AO....
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....ssed in the original assessment order passed on 28.03.2013. (j) The assessee filed a rectification petition u/s 154 of the Act on 13.04.2016 before the AO, wherein it was prayed that the deduction u/s 80IB(10) should be allowed on income relating to on-money receipts offered by the assessee. The assessee, in this regard, placed its reliance on the decision rendered by Hon'ble Bombay High Court in the case of CIT vs. Sheth Developers P Ltd (2012)(254 CTR 127). 41. As noticed earlier, the AO rejected the rectification petition and the same was also partially confirmed by Ld CIT(A) and hence the assessee filed appeal before the ITAT challenging the decision taken by Ld CIT(A) against the assessee, which was adjudicated in the earlier paragraphs. While the Tribunal was hearing the appeal of the assessee, the Ld D.R brought a new fact that the assessee's claim of filing its return of income within the due date is found to be wrong and the assessee has, for the first time, has filed its return of income on 29-02-2012 in response to the notice issued by the AO u/s 142(1) of the Act. Since the return of income was filed beyond the due date prescribed u/s 139(1) of the Act, the ....
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....e submitted that the grounds urged in the Cross Objection do no arise out of the order passed by Ld CIT(A). 46. On the contrary, the Ld D.R submitted that the Hon'ble Supreme Court has accepted the plea of the counsel to make further submissions after conclusion of hearing in the case of Bimal Gurung vs. Union of India & Ors (W.P (Criminal) No.182/2017 dated 23-02-2018). Accordingly, the Ld D.R submitted that there is no bar in filing Cross objection after conclusion of hearing. He further submitted that the facts relating to non-filing of return of income within the due date prescribed u/s 139(1) of the Act was noticed only during the course of hearing of appeal filed by the assessee before the Tribunal and further it came to light that the e-acknowledgement filed by the assessee to support of its claim of filing of return of income within the due date was found to be fraudulent one after receipt of report from Central Processing Centre (CPC). By placing reliance on the decision rendered by Hon'ble Gauhati High Court in the case of CIT vs. Purbanchal Pribahan Gosthi (1998)(234 ITR 663), the Ld D.R submitted that the cross objections filed by the assessee need not be confined to....
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....ed on fraud has to be treated as a nullity by every court and further, it can be challenged in the collateral proceedings also. In support of this proposition, the Ld D.R placed his reliance on the decision rendered by Hon'ble Supreme Court in the case of United India Insurance Co. Ltd vs. Rajendra Singh (2000)(3 SCC 581), CIT vs. Electronic Research Ltd (2003)(130 Taxman 216)(Kar) and also many other decisions. The Ld D.R also placed his reliance on the decision rendered by Hon'ble Calcutta High Court in the case of CIT vs. Shelcon Properties (2014)(44 taxmann.com 170) to contend that the assessee is not eligible for deduction u/s 80IB(10) if the return of income is not filed in time. He further submitted, by placing reliance on the decision rendered by Hon'ble Supreme court in the case of Dilip Kumar and Company (Civil Appeal No.3327 of 2007), that the tax exemption clause/notification should be read strictly and if there is ambiguity, it must be interpreted in favour of revenue. 50. The Ld A.R, on the contrary, submitted that the revenue is only alleging that the assessee has committed a fraud by claiming that it has filed its return of income before the due date prescribed u....
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....rescribed under the Act. Their claim of filing of return of income before the due date was a fraud committed by the assessee and hence the said return should be ignored by the Tribunal. There is no dispute that the assessee has filed return of income in response to the notice issued u/s 142(1) of the Act also. The manual return of income filed by the assessee within the due date is also available on record. Under these set of facts, the Ld A.R submitted that, if at all the contention of the revenue that the assessee has committed a fraud is accepted, then it would only give rise to a legal issue as to whether the assessee would be entitled for deduction u/s 80IB(10) or not. He submitted that the revenue is placing reliance on the provisions of sec.80AC of the Act to contend that the assessee would not be eligible for deduction u/s 80IB(10) of the Act, if the return is filed beyond the due date prescribed under the Act. However, there are number of decisions rendered by High Courts and Tribunal, wherein it has been held that the condition prescribed in sec.80AC of the Act is only directory. The Ld A.R submitted that the paper book filed by the revenue would show that the assessee ha....
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....passed by the AO for AY 2012-13, when read with the order passed for AY 2011-12, would show that the assessing officer has taken the view that the provisions of sec.80AC, which is pressed into service by revenue, are directory in nature. He submitted that the view so taken by the AO also gets support from many decisions rendered by the Tribunal and High Courts. 55. The Ld A.R further submitted that the Tribunal is confined with the matter/proceeding before it. Hence the Tribunal cannot travel beyond those issues. He further submitted that the present appeal filed by the assessee is against the rectification proceedings completed u/s 154 of the Act against the original assessment order passed u/s 143(3) r.w.s 153A of the Act. Hence the power of the Tribunal is confined to the said rectification order only. He further submitted that the legal issues permitted to be raised by Hon'ble Supreme Court should pertain to same proceedings. However, in the instant case, the revenue is attempting to raise a legal issue relating to original assessment proceedings and the same is not related to the rectification order passed u/s 154 of the Act, rejecting the rectification petition filed by th....
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....up (2009) 6 SCC 194 has observed " We are concerned herein with the question of limitation. The compromise decree, as indicated herein before, even if void was required to be set aside. A consent decree as is well known, is as good as a contested decree. Such a decree must be set aside if it has been passed in violation of law. For the said purpose, the provisions contained in Limitation Act 1963 would be applicable. It is not the law that where the decree is void, no period of limitation shall be attracted at all." Therefore, in this case also the period of four years from the date of order sought to be rectified/recalled will apply as provided in Section 254(2) of the Act. This is so even if it is assumed that the order dated 6 December 2006 is a void order." 58. The Ld A.R further submitted that the exemption provision is to be construed liberally, while the prosecution provisions should be construed strictly. He said that it is so held by Hon'ble Rajasthan High Court in the case of Pr. CIT vs. Shankar Lal Saini (2018)(89 taxmann.com 235). He further submitted that the Hon'ble Supreme Court has held in the case of UOI vs. Wood Papers Ltd (1990)(4 SCC 256) th....
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....lature obviously intends that the correctness of the said order cannot be impeached before the appellate authority. The jurisdiction and powers of the appellate authority must inevitably be determined by the specific and relevant provisions of the Act. 61. The Hon'ble jurisdictional Bombay High Court also had an occasion to examine the power of the revenue to challenge the order passed by the AO. The Hon'ble Bombay High Court in the case of CIT vs. Maersk Global Service Centre (I) Pvt Ltd (ITA No.692 and 693 of 2012 dated 22-08-2014) held that the revenue cannot raise grounds before the Tribunal to get over the defects and lacunas so also any discrepancies in the order of the Transfer Pricing Officer. 62. We have earlier noticed that the Assessing officer (revenue) has raised grounds in the Cross objection filed by him questioning his own decision in granting deduction u/s 80IB(10) of the Act in the original assessment proceedings. We have earlier noticed that the (a) AO himself allowed the deduction in the original assessment order passed on 28-03-2013 u/s 143(3) r.w.s 153A of the Act. (b) Subsequently the said order was revised by Ld Pr. CIT u/s 263 of the....
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....Appeal (in the form of CO) is not a process known or permitted by law. At this juncture, it is apt to extract the following observations made by Hon'ble Madras High Court in the case of Seshasayee Paper & Boards Ltd vs. IAC (1986)(157 ITR 342)(Mad):- "Even a wrong order has a finality and unless that finality is disturbed by a process known to law or by a process authorized by law, the rights of the assessee and the revenue will continue to be governed by the order...." It is also well settled proposition of law that what is not permitted to be done directly cannot also be done indirectly as held in the case of CIT vs. Kelvinator of India Ltd (2001)(256 ITR 1)(Delhi). When it was question as to why the AO could proceed against the assessee under other provisions of the Act, the Ld D.R submitted that the time limit for reopening of assessment has already expired. Hence there is merit in the contentions of the assessee that the revenue is trying to achieve something indirectly which it is not entitled to achieve directly, which is not permissible. 65. We have noticed that the order appealed before the Tribunal is the order passed by Ld CIT(A) against the rectification ....
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.... accordance with law. If, for example, as a result of a judicial decision given while the appeal is pending before the Tribunal, it is found that a non-taxable item is taxed or a permissible deduction is denied, we do not see any reason why the assessee should be prevented from raising that question before the tribunal for the first time, so long as the relevant facts are on record in respect of that item. We do not see any reason to restrict the power of the Tribunal under Section 254 only to decide the grounds which arise from the order of the Commissioner of Income-tax (Appeals). Both the assessee as well as the Department have a right to file an appeal/cross-objections 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. 6. In the case of Jute Corporation of India Ltd. v. C.I.T. . this Court, while dealing with the powers of the Appellate Assistant Commissioner observed that an appellate authority has all the powers which the original authority may have in deciding the question before it subject to the restrictions or limitations, if any, prescribed by t....
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....e instant case, we notice that the revenue is alleging fraud and accordingly seeking withdrawal of deduction by citing the provisions of sec.80AC of the Act. However, there is no dispute that the fraud, if any, is in allegation stage only and further the said contentions are being raked up on the basis of information obtained from CPC only recently, meaning thereby, the details relating to alleged fraud were not available on record in the assessment proceedings. Hence, the principle laid down by Hon'ble Supreme Court in the above said case for admission of a legal issue, does not apply to the facts of the present case. In any case, the above said decision of Hon'ble Supreme Court does not override the first principle that the assessing officer is not entitled to question his own order in appeal. 67. We have noticed that the legal issue urged by the revenue in the CO relates to the original assessment proceeding, where as the present appeal relates to the rectification order passed u/s 154 of the Act challenging the rejection of the rectification petition filed by the assessee. Since the rectification petition has been rejected, the doctrine of merger also does not apply to the i....
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....) of the Act. 69. We have earlier noticed that the revenue has placed reliance on the decision rendered by Hon'ble Calcutta High Court, wherein it was held that the deduction u/s 80IB(10) would be denied, if the return of income is filed beyond the due date prescribed u/s 139(1) of the Act. The above discussions would show that there are two views on the issue. Hence the Ld A.R submitted that, if the assessee is considered to have filed the return of income belatedly beyond the due date prescribed u/s 139(1) of the Act, then the view in favour of the assessee should be taken as per the decision rendered by Hon'ble Supreme Court in the case of Vegetable Products of India Ltd (1973)(88 ITR 182)(SC). We find merit in the submissions made by Ld A.R. The revenue is only alleging fraud on the part of the assessee and the Tribunal is not the competent authority to decide on the same. As submitted by Ld A.R, the issue raked up by the revenue would give rise to only a legal issue and on the same, two views are existing as on today. 70. We have noticed that the limitation would apply for all orders, even if it is a wrong order. We have also noticed that, what cannot be achieved directl....
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....Act and the same has to be filed within 30 days from the date of receipt of notice of appeal filed by the other party. In the normal practice, the appeal and CO are heard and disposed of together. Hence there may be merit in the contentions of the assessee that the CO should not be admitted, if it is filed after conclusion of hearing of the appeal. However, we notice that the bench has put up the appeal of the assessee for hearing the same along with the Cross objection by refixing it. Under these set of facts, the objection of the assessee may not survive. We have earlier noticed that the Ld D.R, during the course of hearing of appeal of the assessee, submitted about the alleged fraud and also contended that the deduction claimed u/s 80IB(10) should be withdrawn in view of provisions of sec.80AC of the Act. Since it is a well established proposition that the Ld D.R cannot improve the case of the AO, the revenue, in its wisdom, has thought it fit to file Cross objection belatedly. The reason cited for the delay was the delay occurred in obtaining the details from CPC. In our view, the reasoning given by the revenue may constitute sufficient cause in filing the CO belatedly. However....