TaxTMI 
TaxTMI 
2021 (8) TMI 1183
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....the assessees had originally claimed as exempt u/s 10(38) of the Act, but on survey conducted on both of them on 03.09.2015 u/s 133A of the Act, where certain evidences relating to the claim of Long Term Capital Gains allegedly being bogus were unearthed ,the assessee surrendered the Long Term Capital Gains as its income by way of filing a revised return declaring an amount of Rs. 71,91,150/- in the case of Shri. Lalit Jain and 56,58,000/- in the case of Smt. Jyoti Jain. That the revised return filed by the assessee was assessed as such in both cases and penalty proceedings u/s 271(1)(c) were initiated. That against the assessment order so framed, the assessee filed appeal before the Ld. CIT(A) and during pendency of the appeal raised additional grounds challenging the assessment of the surrendered income on account of alleged bogus Long Term Capital Gain transactions. The said additional ground was not admitted by the Ld. CIT(A) for adjudication, who thereafter disposed of the appeals dismissing the same since the only other issue remaining related to initiation of penalty proceedings. The Ld. DR agreed to the commonality of the aforestated facts in both the present appeals. ....
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....within his right to make a claim for deduction before an appellate authority for the first time. 3. A brief submission in this regard was filed before us as under: "2.1. Submissions with respect to Ground No. 1 and 2 1. That the Ld. CIT(A)-2, Chandigarh has wrongly passed the order u/s 250(6) of the Income Tax Act, 1961 against law & facts of the case. 2. That the Ld. CIT(A)-2, Chandigarh erred in law & facts in not admitting additional ground of appeal without any base & reasons thereof. 2.1.1. The Ld. CIT has erred in law and facts in not admitting additional ground of appeal without any base and reason and by just quoting that the assessee has filed additional grounds of appeal after a lapse of nearly one and half years and there was no substantial reason for the same. Thus, admissibility of additional ground is rejected outrightly. 2.1.2. The Sequence of events are explained in brief for explaining the reason that why the assessee filed additional grounds of appeal after a lapse of nearly one and half years. * Assessee filed his original return under section 139(1) for the year under consideration vide acknowledgement no.....
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....s that a further claim of deduction u/s 10(38) can be made before the Worthy CIT(A) when it has not been made at the assessment stage or while filing the return, it is well within the right of appellant to make a claim for deduction before any appellate authority for the first time. This issue has been decided in number of judicial pronouncements a) Reference is placed on the Binding Judgment of Hon'ble Supreme Court in the case of National Thermal Power Corporation reported in 229 ITR 383(SC) Undoubtedly, the Tribunal will have the discretion to allow or not allow a new ground to be raised. But where the Tribunal is only required to consider a question of law arising from the facts which are on record in the assessment proceedings, we fail to see why such a question should not be allowed to be raised when it is necessary to consider that question in order to correctly assess the tax liability of an assessee. (Para 7) b) Reference is also placed on Hon'ble High Court in the case of Bombay Commissioner of Income Tax vs. Pruthvi Brokers & Shareholders reported in [2012] 23 taxmann.com 23 (Bom.), the findings were that 'if the ground so raised could ....
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....tion 251(1)(a). The declaration of law is clear that the power of the AAC is co-terminous with that of the ITO, if that be so, there appears to be no reason as to why the appellate authority cannot modify the assessment order on an additional ground even if not raised before the ITO. No exception could be taken to this view as the Act does not place any restriction or limitation on the exercise of appellate power. Even otherwise an appellate authority while hearing appeal against the order of a subordinate 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 the statutory provisions. In the absence of any statutory provision the appellate authority is vested with all the plenary powers which the subordinate authority may have in the matter. There appears to be no good reason and none was placed before us to justify curtailment of the power of the AAC in entertaining an additional ground raised by the assessee in seeking modification of the order of assessment passed by the ITO.(Para 5) d) Similar position in law is affirmed in following judgements * C....