TaxTMI 
TaxTMI 
2023 (4) TMI 327
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.... against the prima facie adjustment on other issues made while processing the return u/s. 143(1) of the Act, assessee filed an appeal before the Ld. CIT(A) and raised its claim u/s. 80JJAA by way of an additional ground of appeal. While raising this additional ground for the claim, it was submitted that this issue of allowing the said claim is squarely covered by the decision of Hon'ble Delhi High Court in the case of International Tractors Ltd. Vs. DCIT 435 ITR 85 (Del.) and hence, is an allowable claim for the assessee also. Before adverting on the issue in hand, we also take note of the fact that an application for grant of out of turn hearing was made by the assessee which was allowed vide interim order dated 20.05.2012. 3. Ld. Counsel submitted that department has processed its return of income filed on 23.11.2019 and issued intimation u/s. 143(1) of the Act dated 08.05.2020. In the course of first appellate proceeding, assessee filed additional grounds claiming deduction u/s. 80JJAA of the Act by stating the fact that it had incurred employee benefit expenses of Rs.24,77,20,581/- as compared to preceding year's expenses of Rs.15,82,59,141/-. It was contended that there was a....
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....is an appeal against an intimation u/s. 143(1) of the Act and not against an assessment order made u/s. 143(3) of the Act. He further observed that all the judgments relied upon were against the order passed u/s. 143(3) of the Act and not in respect of appeal filed against intimations u/s. 143(1) and thus, the request for admitting the addition ground for the claim of deduction u/s. 80JJAA of the Act was rejected as it was not claimed in the return of income. Aggrieved, assessee is in appeal before the Tribunal. 4. Before us, Ld. Counsel reiterated the facts narrated above and the same are not repeated for the sake of brevity. Ld. Counsel pleaded on the admission of additional ground for the claim of deduction u/s. 80JJAA of the Act in view of the decision of Hon'ble High Court of Delhi and Karnataka referred above. He also highlighted the fact that in assessee's own case for the immediately preceding year i.e. AY 2018-19, as well as in the immediately subsequent year i.e. AY 2020- 21, Ld. CIT(A) has allowed the claim of deduction made by the assessee vide order dated 17.06.2022. 4.1. On the query raised by the Bench in respect of applicability of the decision of Hon'ble Supreme ....
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....e decision of the Supreme Court in NATIONAL THERMAL POWER CO. LTD vs. CIT, 299 ITR 383 (SC) has held that in the aforesaid decision the Supreme Court has not held anything contrary to what was held in Goetze (India) Ltd. and has reaffirmed the legal position that even if the claim is not made before the Assessing Officer, it can be made before the Appellate Authorities and jurisdiction of the Appellate Authorities to entertain such a claim has not been negatived in NATIONAL THERMAL POWER CO. LTD. supra. A division bench of Delhi High Court in CIT VS. JAI PARABOLIC SPRINGS LTD., 306 ITR 42 (DEL) has held that there was no prohibition on the powers of tribunal to entertain ail additional ground, which according to the tribunal arises in the matter and is necessary for just decision of the case. 8. In the backdrop of aforesaid well settled principles, the facts of the case in hand may be examined. In the instant case, the claim for eligibility with regard to deduction under Section 80P of the Act was entertained by the Commissioner of Income Tax (Appeals) as the assessee did not have the opportunity to raise the contention before the Assessing Officer as the order of assessment was ....
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....oner of Income-tax (1998) 229 ITR 383 (SC), Gedore Tools Pvt. Ltd. v. Commissioner of Income-tax (1999) 238 ITR 268, Jute Corporation of India Ltd. v. Commissioner of Income-tax (1991) 187 ITR 688 (SC) and held that the appellate forum could have entertained and decided the said aspect. The decision in the case of Goetze (India) Ltd. (supra) is distinguishable. In the said case the assessee had filed the return of income for the Assessment Year 1995-96 on 30-11-1995. Thereafter, on 12-1-1998, the assessee wrote a letter to the Assessing Officer and made a new claim for a deduction, which was rejected by the Assessing Officer as there is no provision to amend the return. The Supreme Court further clarified that the issue raised in Goetze (India) Ltd. (supra) was limited to the power of assessing authority and did not impinge on the power of the tribunal as was in the case of National Thermal Power Ltd. (supra). In the present case also the appellate forum had entertained the claim made by the respondent-assessee and allowed the same. There is no dispute that the claim/deduction towards the expense is otherwise correct and allowable." Conclusion: 17. Therefore, in our view, the j....