2022 (9) TMI 37 - AT - Income Tax

Capital gain computation - rectification application u/s 154 as stated that the cost of acquisition of property sold was wrongly adopted in the return filed for the assessment year 2016-17 which resulted in capital gains - AO concluded that the assessee has not filed any revised return of income under section 139(5) of the Act and therefore, the plea of the assessee was not considered and moreover, there was no error in the assessment order passed under section 143(3) - HELD THAT - Assessee has not made any fresh claim, but plea for modify the claim of deduction, in fact, during the course of assessment proceedings, the assessee has brought to the notice of the Assessing Officer that the cost of acquisition of property sold was wrongly adopted in the return of income filed for the assessment year 2016-17 which resulted in capital gains. Since the Assessing Officer has not heed to the plea of the assessee and rejected the claim to modify the deduction since the assessee has not filed revised return under section 139(5) by following the decision of the Hon ble Supreme Court in the case of Goetze (India) Ltd. 2006 (3) TMI 75 - SUPREME COURT the Assessing Officer rejected the claim of the assessee. On appeal, while dismissing the appeal of the assessee, the ld. CIT(A) has observed that the issue is not amenable to section 154 of the Act, and if at all, the issue should have been challenged by the assessee by an appeal against the order under section 143(3) of the Act dated 30.12.2018. The ld. Counsel for the assessee has submitted that the appeal against the order under section 143(3) of the Act dated 30.12.2018 is pending before the ld. CIT(A). Under the above facts and circumstances, we remit the matter back to the file of the ld. CIT(A) to adjudicate the claim of deduction while adjudicating the appeal against the assessment order under section 143(3) of the Act by affording reasonable opportunity of being heard to the assessee. Appeal filed by the assessee is allowed for statistical purposes.

Summary

Issues:
1. Appeal against the order of the ld. Commissioner of Income Tax (Appeals) 18, Chennai for the assessment year 2016-17.
2. Claim of deduction by the assessee without filing a revised return of income.
3. Rejection of the claim by the Assessing Officer and the ld. Commissioner of Income Tax (Appeals).
4. Interpretation of the decision of the Hon'ble Supreme Court in Goetze (India) Ltd.'s case.
5. Remitting the matter back to the ld. Commissioner of Income Tax (Appeals) for adjudication.

Analysis:
1. The appeal was filed by the assessee against the order of the ld. Commissioner of Income Tax (Appeals) 18, Chennai, for the assessment year 2016-17. The Assessing Officer had completed the assessment under section 143(3) of the Income Tax Act, 1961, assessing the total income of the assessee at a specific amount after making various additions.

2. The assessee filed a petition under section 154 of the Act, stating that the cost of acquisition of property sold was wrongly adopted in the return filed, resulting in an incorrect calculation of capital gains. The Assessing Officer rejected the plea of the assessee as no revised return was filed under section 139(5) of the Act. The ld. CIT(A) confirmed this decision.

3. The assessee appealed before the Tribunal, arguing that the ld. CIT(A) failed to adjudicate on a deduction claimed without filing a revised return. The Assessing Officer rejected the claim based on the decision in Goetze (India) Ltd.'s case. The Tribunal remitted the matter back to the ld. CIT(A) for adjudication.

4. The Tribunal noted that the assessee did not make a fresh claim but sought to modify the deduction during assessment proceedings. The ld. CIT(A) observed that the issue was not amenable to section 154 of the Act and should have been challenged through an appeal against the original assessment order. The Tribunal directed the ld. CIT(A) to consider the deduction claim while adjudicating the appeal against the assessment order under section 143(3) of the Act.

5. Consequently, the appeal filed by the assessee was allowed for statistical purposes, and the matter was remitted back to the ld. CIT(A) for further adjudication in accordance with the directions of the Tribunal.