TaxTMI 
TaxTMI 
2021 (7) TMI 1140
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....idered independent of each other. That on the facts and circumstances of the case and in law - 1. The order dated 21.02.2017 passed by the learned CIT(A) is bad in law and on facts. 2. The learned CIT(A) has erred in upholding the adjustment made to the total income of the appellant by the learned AO under section 143(3) of the Act on account of transfer pricing matters. 3. The learned TPO/ AO/ CIT(A) have erred in making an adjustment under section 92CA(3) of the Act without returning a finding about existence of any of the circumstances specified in clauses (a) to (d) of sub-section (3) of section 92C of the Act. 4. the learned TPO/ AO/ CIT(A) have erred in computing the operating margin of the appellant. 4.1 The learned TPO/ AO/ CIT(A) have erred in concluding that extraordinary expense items like bad debts and advances written off; provision for doubtful debts and provision for doubtful advances as operating in nature. 4.2 The learned TPO/ AO/ CIT(A) have erred in not making appropriate adjustments to the 'net operating margin' of the appellant on account of significantly higher amount of provisioning and write off ....
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....erest of the natural justice." 3. At the time of hearing, the ld. Counsel for the assessee did not press grounds No.2 to 4.4 for which the ld. DR has no objection. Accordingly, these grounds are dismissed as not pressed. Ground No.1 being general in nature is dismissed. Ground No.6 being premature at this juncture is dismissed. Ground No.7 challenging charging of interest u/s 234B being mandatory and consequential in nature is dismissed. Ground No.5 relates to the order of the CIT(A) in rejecting the additional claims made for the first before the CIT(A) on the ground that the same were not made by way of filing revised return u/s 139(5) of the IT Act. 4. Facts of the case, in brief, are that the assessee is a company engaged in the export of software, manufacture of photocopiers, trading of faxes, paper and toner. It filed its return of income on 2nd December, 2003 declaring the net loss of Rs. 4,21,57,710/- which was processed u/s 143(1) of the Act vide intimation dated 16th June, 2004. Subsequently, the assessee revised its return on 31st March, 2005 declaring taxable income at Rs. 53,24,250/-. The AO completed the assessment u/s 143(3) of the Act on 23rd March, 2006 deter....
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....did not make the claim either in the original return of income for A.Y. 2003-04 filed on 02.12.2003 which was a belated return or never revised the return filed on 31.03.2005. The AO further contended that the AO calculates income as per the return of income filed by the assessee. These details were provided by the assessee in the return of income and details regarding this issue were provided during assessment proceedings which concluded on 23rd March, 2006. The AO further reiterated that since the turnover of the assessee was very high being Rs. 478.86 crores, their claim that the expenses were debited in the P&L Account because of non-availability of qualified person seems to be invalid. 6.1 The ld. CIT(A) confronted the remand report of the AO to the assessee who submitted that evidences in support of the additional claim were submitted to and verified by the AO. It was further submitted that the appellate authority have been entrusted with appropriate powers to admit or reject such additional claims. 7. However, the ld. CIT(A) was not satisfied with the arguments advanced by the assessee and rejected the claim of freight expenses of Rs. 73,42,630/- by observing as under:....
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....ring to the said decision, he submitted that the Hon'ble Supreme Court in the said decision has categorically held that this decision does not, in any way, relate to the power of the AO to entertain a claim for deduction otherwise than the filing of a revised return. They have made it clear that the issue in this case is limited to the power of the assessing authority and does not impinge on the power of the Income-tax Appellate Tribunal u/s 254 of the Income-tax Act, 1961. 10.1 Referring to the decision of the Hon'ble Supreme Court in the case of NTPC vs. CIT, 229 ITR 383, he submitted that the Hon'ble Supreme Court has held that the Tribunal has jurisdiction to examine a question of law which arises from facts as found by authorities below and having bearing on tax liability of an assessee even though such question was not raised before authorities below nor in grounds of appeal, but, raised by way of additional issue in a forwarding letter. 10.2 Referring to the decision of the Hon'ble Bombay High Court (Panaji Bench) in the case of Sesa Goa Ltd. vs. Addl.CIT, reported in 430 ITR 114, he submitted that the Hon'ble High Court in the said decision has held that appellate aut....
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....n has held that there is no prohibition on the powers of the Tribunal to entertain an additional ground which, according to the Tribunal, arises in the matter for the just decision of the case. Relying on various other decisions placed in the paper book, he submitted that the additional ground raised by the assessee before the CIT(A) should not have been rejected by the CIT(A) especially when she has given a finding that the claims made by the assessee were otherwise factually correct. 14. The ld. DR, on the other hand, heavily relied on the order of the CIT(A). He submitted that since the assessee has not claimed such expenses by filing a revised return, the ld.CIT(A) was fully justified in rejecting such claim made by the assessee otherwise than by filing a revised return as per the provisions of section 139(5) of the IT Act, 1961. 15. We have considered the rival arguments made by both the sides, perused the orders of the Assessing Officer and CIT(A) and the paper book filed on behalf of the assessee. We have also considered the various decisions cited before us. The only question to be decided in the grounds of appeal No.5 by the assessee raised before the Tribunal is reg....