2021 (7) TMI 1140 - AT - Income Tax

Admissibility of fresh claims made by the assessee during the appeal proceedings which were not made before the AO by filing a revised return - HELD THAT - The issue now stands settled in favour of the assessee by various decisions that an assessee is entitled to raise before the appellate authorities additional grounds in terms of additional claims not made in the return filed by it. We find in the case of Pruthvi Brokers Shareholders 2012 (7) TMI 158 - BOMBAY HIGH COURT has held that the assessee is entitled to raise before the appellate authorities additional ground in terms of additional claims not made in the return filed by it. Various other decisions relied on by the ld. Counsel in the paper book also support the case to the proposition that the assessee can always make a new claim before the appellate authorities which was not claimed before the AO by filing a revised return of income. Since, in the instant case, the assessee has made this additional claim by filing additional grounds, the ld.CIT(A) should not have rejected the same merely on the ground that the assessee has not made such claims before the AO by filing a revised return as per the provisions of section 139(5) of the Act. We, therefore, deem it proper to restore the issue to the file of the CIT(A) with a direction to admit the additional ground.

Issues Involved:
1. Validity of the CIT(A)'s order dated 21.02.2017.
2. Adjustment to the total income on account of transfer pricing matters.
3. Adjustment under section 92CA(3) without finding the existence of circumstances specified in section 92C(3)(a) to (d).
4. Computation of the operating margin of the appellant.
5. Rejection of additional claims made for the first time before the CIT(A) without filing a revised return under section 139(5).
6. Initiation of penalty proceedings under section 271(1)(c).
7. Charging of interest under section 234B.

Detailed Analysis:

1. Validity of the CIT(A)'s Order:
The appellant contended that the CIT(A)'s order dated 21.02.2017 was erroneous in law and on facts. However, this ground was dismissed as general in nature.

2. Adjustment to Total Income on Account of Transfer Pricing Matters:
The appellant raised concerns about the adjustments made by the AO under section 143(3) based on the TPO's order under section 92CA(3), which was upheld by the CIT(A). This ground, along with related grounds (3 and 4), was not pressed by the appellant during the hearing and was subsequently dismissed.

3. Adjustment Under Section 92CA(3):
The appellant argued that the TPO, AO, and CIT(A) erred in making adjustments without finding any circumstances specified in section 92C(3)(a) to (d). This ground was not pressed and dismissed.

4. Computation of Operating Margin:
The appellant contended errors in the computation of the operating margin, including the treatment of extraordinary expenses like bad debts and provisions for doubtful debts. These grounds were not pressed and were dismissed.

5. Rejection of Additional Claims Without Filing a Revised Return:
The appellant's primary contention was the CIT(A)'s rejection of additional claims made for the first time during appellate proceedings on the ground that they were not made through a revised return under section 139(5). The appellant argued that these claims were factually correct and supported by evidence but were not included in the original or revised return due to oversight.

The Tribunal noted that the CIT(A) had acknowledged the factual correctness of the claims but rejected them based on the Supreme Court's decision in Goetze (India) Ltd. v. CIT, which limited the AO's power to entertain claims not made through a revised return. However, the Tribunal emphasized that this limitation did not apply to appellate authorities, citing decisions from the Supreme Court and various High Courts, including NTPC v. CIT, Sesa Goa Ltd. v. Addl. CIT, and CIT v. Pruthvi Brokers & Shareholders, which affirmed the appellate authorities' jurisdiction to entertain additional claims.

The Tribunal concluded that the CIT(A) should have admitted the additional claims and directed the CIT(A) to admit the additional grounds and decide the issue on merits after providing an opportunity for the appellant to be heard.

6. Initiation of Penalty Proceedings Under Section 271(1)(c):
The appellant's challenge to the initiation of penalty proceedings was dismissed as premature.

7. Charging of Interest Under Section 234B:
The appellant's challenge to the charging of interest under section 234B was dismissed as it was mandatory and consequential.

Conclusion:
The Tribunal allowed the appeal in part, specifically directing the CIT(A) to admit and consider the additional claims on their merits. The other grounds were dismissed either as not pressed, general in nature, premature, or mandatory. The Tribunal's decision emphasized the broad jurisdiction of appellate authorities to ensure the correct tax liability of the assessee.

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