TaxTMI 
TaxTMI 
TaxTMI 
2021 (10) TMI 1047
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....mendment to the grounds of appeal at the time of hearing." 2. Brief facts of the case are that the assessee is a Regional Rural Bank, promoted by Bank of Baroda. For the assessment year under consideration, i.e. 2012- 13, the assessee filed Return of Income on 18.09.2012 declaring taxable income of Rs. 14,57,42,110/-. The case was selected for scrutiny and assessment was completed under section 143(3) of the Act on 30.01.2015. During the assessment, the Assessing Officer (AO) noted that assessee has claimed deduction under section 36(1)(via) of the Act of Rs. 1.18 crore. During the assessment, the AO asked the assessee on justification on the provision of Non-Performing Assets (NPA) and as to why it should be disallowed as it is not allowable to Rural Development Bank. The assessee filed its reply dated 19.01.2015. The assessee submitted that assessee has made provision for NPA of Rs. 6.39 crore, which has been disallowed in the return and the sum of Rs. 1.18 crore has been claimed as an allowable deduction under section 36(1)(viia) of the Act. The amount of Rs. 1.18 crore is allowable as the assessee is Schedule Bank classified in Schedule-II, by Reserve Bank of India (RBI) and a....
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....r deduction @7.5% of maximum provision mandated by law, the Ld. CIT(A) held that it will create large NPA and that there is no justification for claiming such deduction. The conclusion given by ld.CIT(A) is not in accordance with the mandate in provision of section 36(1)(viia) and the assessee is entitled for deduction of Rs. 4.35 Crore. 5. On the other hand, the ld. CIT-DR for the Revenue supported the order of ld.CIT(A). 6. We have considered the rival submission of the parties and have gone through the orders of authorities below. We find that the original deduction claimed under section 36(1)(viia) of the Act has already been allowed by ld.CIT(A). The additional claim was not accepted by the AO on the ground that he is not empowered to accept additional claim in absence of revised return. The Ld. CIT(A) not considered the revised claim by taking view that it will create huge NPA. The ld CIT(A) has not given finding on the auspect, if there was a mistake by assessee in calculating the deduction of it was fresh claim by assessee. 7. The Hon'ble Jurisdictional High Court in PCIT vs Mitesh Impex (367 ITR 85) while considering the question of law relating to raising the additiona....
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....98] 229 ITR 383 (SC) when the question of law was raised for the first time before the Tribunal though facts were already on record, the Supreme Court observed that there is no reason why the assessee should be prevented from raising such a question before the Tribunal for the first time so long as the relevant facts 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 deduction otherwise than by filing a revised return. In the process the Supreme Court recognized that a new claim could not be entertained by ....
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....ng a claim without revised return. This is what Supreme Court observed in the said judgment while distinguishing the judgment in the case of National Thermal Power Co. Ltd.(supra) and that is how various High Courts have viewed the dictum of the decision in the case of Goetze (India) Ltd.(supra). When it comes to the power of Appellate Commissioner or the Tribunal, the Courts have recognized their jurisdiction to entertain a new ground or a legal contention. A ground would have a reference to an argument touching a question of fact or a question of law or mixed question of law or facts. A legal contention would ordinarily be a pure question of law without raising any dispute about the facts. Not only such additional ground or contention, the Courts have also, as noted above, recognized the powers of the Appellate Commissioner and the Tribunal to entertain a new claim for the first time though not made before the assessing officer. Income-tax proceedings are not strictly speaking adversarial in nature and the intention of the Revenue would be to tax real income. 39. This is primarily on the premise that if a claim though available in law is not made either inadvertently or on acco....