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TMI Blog2007 (9) TMI 331X X X X Extracts X X X X X X X X Extracts X X X X ..... ner of Income-tax (Appeals) is not justified in opining that the benefit of re-opening is only to favour the revenue and cannot be used to favour the assessee, disregarding the express provision of section 152(2) of the Income-tax Act. 3.1 We have heard both the counsels and perused the relevant records. As regards the proposition that re-opening is only to favour revenue and cannot be used to favour the assessee, we find that the learned Commissioner of Income-tax (Appeals) has taken a correct view of the matter drawing support from Hon'ble Apex Court decision in the case of CIT v. Sun Engineering Works (P.) Ltd. [1992] 198 ITR 297. As regards the reference to provisions of section 152(2), we do not find any rationale as to how reference to this section can change the substance of the proposition as upheld by the Hon'ble Apex Court. Hence, this issue raised is also dismissed. 4. The next issue raised pertains to travelling by the Assessing Officer beyond the reasons for issue of notice for reassessment. 4.1 We have heard both the counsels and perused the relevant records. We find that it is now settled that when an order of assessment is re-opened, the previous under assessm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e filed a revised return in which it claimed exemption under section 10A. In this regard it is the contention of the assessee that Assessing Officer has proceeded with the reassessment on the original return filed and has not taken into account the revised return filed in which relief under section 10A was clearly claimed. 5.2 In this connection the learned Commissioner of Income-tax (Appeals) had sought Assessing Officer's report on this aspect which has been reproduced in the Commissioner of Income-tax (Appeals)'s order as under:- "It is seen that the assessee had not made specific claim of exemption under section 10A in the original return of income. There is a mention in the covering letter signed by the Chartered Accountant, Shri V. Jagadisan that the company was a 100 per cent Export Oriented Unit (EOU) exporting computer software and hence no part of its income was taxable. Audit Report in Form No. 56F required to be furnished along with the return of income as per section 10A was also not filed. Subsequently, the assessee had filed the return of income in response to the notice under section 148 on 17-6-2002 wherein for the first time, the assessee had made claim for ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orm No. 56F was filed in the original return. Hence, the learned Commissioner of Income-tax (Appeals) concluded that by not claiming exemption under section 10A of the Act the assessee has exercised his option under section 10A of the Act that it may not be applied for that assessment year. Therefore the assessee cannot now turn around and claim that it has not exercised its option of not claiming exemption under section 10A of the Act in the original return filed on 30-11-2000. 5.5 The learned Commissioner of Income-tax (Appeals) further referred to Hon'ble Apex Court observation in Sun Engineering Works (P) Ltd.'s case and held that the assessee's contention that it is entitled for exemption under section 10A of the Act based on the claim made for the first time in the return filed in response to notice under section 148 of the Act was without merit and was not valid or maintainable. He also held that as the reassessment proceedings were for the benefit of revenue, the assessee could not make a fresh claim which was not made earlier in the original return. Hence, the issue of exemption under section 10A has become final in the original assessment itself as the assessee has not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revised return and the matters pertaining thereto has been duly dealt with by the learned Commissioner of Income-tax (Appeals) in the appellate order. We find that as held by the Hon'ble Apex Court in the case of Kapurchand Shrimal v. CIT [1981] 131 ITR 451, the Appellate Authority has the jurisdiction as well as duty to correct all errors in the proceedings under appeal and issue appropriate directions, where necessary. We find that by calling for a remand report on this aspect and taking into account the assessee's submissions extensively in this regard, the learned Commissioner of Income-tax (Appeals) has properly dealt with this matter. It is trite that powers of the learned Commissioner of Income-tax (Appeals) are co-terminus with that of Assessing Officer. The Commissioner of Income-tax (Appeals) by asking the report from Assessing Officer and dealing with the matter in the appellate order has taken a proper course of action. It is also well-settled on the anvil of Hon'ble Apex Court decision in Sun Engineering Works (P.) Ltd.'s case that no fresh exemption/benefit can be claimed by the assessee in the course of reassessment proceedings. 5.9 We further find that it is the g ..... X X X X Extracts X X X X X X X X Extracts X X X X
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