TaxTMI 
TaxTMI 
2019 (1) TMI 201
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.... a company incorporated under the provisions of the Companies Act 1956. It is engaged in the business of trading in electricity power. The return of income for the assessment year 2015-16 was filed on 30th September 2015 declaring income under normal provisions after set off of brought forward business loss of Rs. 7,33,43,364/- and returning book profits under section 115 JB of the Income-tax Act, 1961 [hereinafter referred to as 'the Act' for short] of Rs. 50,17,461/-. The return of income was taken for scrutiny assessment and the assessment was completed accepting the returned income. However, during the course of assessment proceedings, the assessee, vide letter dated 11/11/2016 submitted a revised computation of business prof....
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.... 3. The learned CIT(Appeals) failed to appreciate that all the details relating to lower of brought forward loss and unabsorbed depreciation as per books of account of Rs. 10,71,273/- are available on record during the course of assessment proceedings and he nught to have directed the Assessing officer to allow deduction of the same while computing the Book profit under section 115JB. 4. The learned CIT(Appeals) erred in not directing the Assessing officer that the Assessing officer is duty bound to allow all legitimate allowances / deductions though not claimed in the return of income. Ground II: The Appellant craves leeave to add, alter and/or amend all or any of the foregoing grounds of appeal. 5. The is....
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....he Appellate Assistant Commissioner, therefore, has plenary powers in disposing of appeal. The scope of his power is co-terminus with that of the Income-tax Officer. He can do what the Income-tax Officer can do and also direct him to do what he has failed to do." It was observed that there was no reason why the appellate authority cannot modify the assessment order on an additional ground even if not raised before the Incometax Officer. The Act does not place any restriction or limitation on the exercise of appellate power. It was observed that:-- "The above observations are squarely applicable to the interpretation of section 251(1)(a) of the Act. The declaration of law is clear that the power of the Appellate Assistant Commission....
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....ts are on record in respect of the item concerned. There is no reason to restrict the power of the Tribunal in such appeal only to decide the grounds which arise from the order of Commissioner (Appeals). The Tribunal should not be prevented from considering the questions of law arising in assessment proceedings although not raised earlier. 33. In case of Goetze (India) Ltd. (supra) the Supreme Court distinguished the judgment in the case of National Thermal Power Co. Ltd. (supra) on the ground that the same pertained to the power of the Tribunal under section 254 of the Act to entertain a point of law for the first time and commented that such decision does not relate to the power of the assessing officer to entertain a claim for d....
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....gain in recent judgment in the case of CIT v. Sam Global Securities Ltd. [2014] 360 ITR 682/[2013] 38 taxmann.com 129 observed that the Courts have taken a pragmatic view and not a technical one as to what is required to be determined in taxable income. In that sense assessment proceedings are not adversarial in nature. With these observations Court confirmed the view of the Tribunal reversing the decision of the assessing officer rejecting the claim of the assessee on the ground that no revised return was filed. 37. In case of CIT v. Cellulose Products of India Ltd. [1985] 151 ITR 499 (Guj.), Full Bench of this Court held that merely because a ground has not been raised though it could have been raised in support of the relief sou....
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.... This is primarily on the premise that if a claim though available in law is not made either inadvertently or on account of erroneous belief of complex legal position, such claim cannot be shut out for all times to come, merely because it is raised for the first time before the appellate authority without resorting to revising the return before the assessing officer." 5.5 Thus, in the above cases, it has been held that new claims can always be made at any stage of appellate proceedings. The law laid down by Hon'ble Apex Court in the case of Goetz India Ltd (supra) is not applicable to the claim made either before Commissioner of Income Tax (Appeals) or Income Tax Appellate Tribunal. In the light of above pronouncement,....