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2016 (11) TMI 737 - AT - Income TaxClaim of deduction u/s 80G - making of a new claim - Held that - There is no factual dispute with regard to the eligibility of deduction under section 80G of the Act. The deduction benefit was denied by the AO as the assessee failed to claim the same in its original return and no revised return was filed for the same. In this backdrop of the case we find that the assessee cannot be denied the benefit for which he is entitled by the provision of the law. In view of the judgment of the Apex court in the case of Goetze (India) Ltd. vs. CIT 2006 (3) TMI 75 - SUPREME Court it is evident that the making of a new claim if any before the AO is required to be done only by way of filing the revised return of income and not by way of letters or by way of filing revised computation etc. But when comes to the Tribunal or for that matter the CIT(A) who is also not the assessing officer but who is the appellate authority assessee does not have to initiate a new claim before them by way of filing the revised return of income. As such the returns or revised returns are filed under the provisions of section 139 of the Act and it is done before the AO and not before the first or second appellate authorities i.e. CIT(A) ITAT or Higher judiciary. Therefore in our opinion the CIT(A) is justified in entertaining and adjudicating and therefore the ground raised by the revenue is required to be dismissed. Accordingly the ground of the revenue s appeal is dismissed. Short Term Capital Loss computation - Held that - The assessee in the instant case has sold the shares on different two dates i.e. 22.12.2008 and 2.2.2009. So it is clear that the assessee in the case on hand the assessee has sold the shares before 31.3.2009 but the AO has taken the value for the shares on the basis of balance sheet as on 31.3.2009. In our considered view the action of the AO is baseless. The AO has not brought any defect in the purchase price and sale price of the shares. The AO has made the addition on his own surmise and conjuncture. The break-up value of the share as on 31.3.2008 is of 126.93 per share which is very close the sale price of the shares i.e. 125 per share. Therefore the breakup value adopted by the AO as on 31.3.2009 is not correct value of the shares. The ld. DR failed to bring anything contrary to the findings of the ld. CIT(A). In view of above we do not find any infirmity in the order of ld. CIT(A). Hence this ground of Revenue s appeal is dismissed.
Issues Involved:
1. Allowance of deduction under section 80G of the Income Tax Act. 2. Assessment of Short Term Capital Loss (STCL) from the sale of shares of UIC Udyog Limited. 3. General issue not requiring adjudication. Issue 1: Allowance of deduction under section 80G: The case involved a dispute regarding the allowance of a deduction under section 80G of the Income Tax Act. The Revenue contended that the deduction claimed by the assessee was disallowed by the Assessing Officer (AO) as it was not originally claimed in the return and no revised return was filed. However, the Commissioner of Income Tax (Appeals) allowed the deduction based on various case laws, including judgments from Hyderabad ITAT, Mumbai ITAT, and Special Bench, Mumbai. The CIT(A) held that the appellate authorities have the jurisdiction to allow the deduction under section 80G even without a revised return if the facts are available on record. The ITAT upheld the CIT(A)'s decision, emphasizing that the assessee cannot be denied a benefit entitled by law merely due to procedural lapses in filing revised returns. Issue 2: Assessment of Short Term Capital Loss (STCL): The second issue revolved around the assessment of Short Term Capital Loss (STCL) from the sale of shares of UIC Udyog Limited. The AO had assessed the STCL at a lower amount compared to what the assessee had claimed, based on the intrinsic value of the shares calculated by the AO. The assessee argued that the AO overstepped jurisdiction by calculating the break-up value of the shares, which was not justified as the legality of the sale was not disputed. The CIT(A) agreed with the assessee, holding that the AO was not justified in assessing the STCL at a lower amount and directed the AO to treat the STCL at the amount claimed by the appellant. The ITAT concurred with the CIT(A)'s decision, emphasizing that the AO's actions were baseless and not supported by any defects in the purchase or sale prices of the shares. The ITAT dismissed the Revenue's appeal on this issue. Issue 3: General Issue: The third issue raised by the Revenue was deemed general and did not require adjudication, leading to no further analysis or discussion on this matter in the judgment. In conclusion, the ITAT upheld the decisions of the CIT(A) in allowing the deduction under section 80G and in assessing the Short Term Capital Loss at the amount claimed by the appellant. The Revenue's appeal was dismissed, and the order was pronounced on 07/09/2016.
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