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TMI Blog2013 (9) TMI 876X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 73 was not applicable - Appeal not allowed on the ground that the assessee had not filed a revised return within the time allowed under Section 139(5) of the Act, but had only filed a revised computation – Held that:- Reliance has been placed upon the judgment in the case of CIT Vs. Mr. P. Firm, [1964 (10) TMI 13 - SUPREME Court], wherein it has been held by Hon’ble Supreme court that officer must not take advantage of ignorance of the assessee as to his rights - The matter was remanded to the Assessing Officer to consider the case on merits and decide accordingly. - Decided against the revenue. - Income Tax Appeal 214/2013 - - - Dated:- 2-9-2013 - Sanjiv Khanna And Sanjeev Sachdeva,JJ. For the Appellant : Mr. Sanjeev Rajpal, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... funds approved by SEBI; and as the assessee was dealing with shares, income/loss from shares/units was speculative loss and not business loss. 4. CIT (Appeals) dismissed the appeal of the assessee, but on remand the matter was restored to the first appellate authority. Thereupon, vide order dated 16th February, 2009, CIT (Appeals) held that Sun F C Mutual Fund was duly approved mutual fund under Section 10(23D). He observed that dividend from the units of mutual fund was exempt under Section 10 (35)(a). Similarly with regard to the loss, he observed that units of mutual funds were sold and not shares, and therefore, the adverse effect of Explanation to Section 73 was not applicable. Reliance was placed upon decision of the Supreme Court i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to restrict the power of the Tribunal under Section 254 only to decide the grounds which arise from the order of the Commissioner of Income Tax (Appeals). Both the assesses as well as the Department have a right to file an appeal/cross-objections before the Tribunal. We fail to see why the Tribunal should be prevented from considering questions of law arising in assessment proceedings although not raised earlier. 7. Reference was also made to an earlier decision of the Supreme Court in Jute Corporation of India Ltd. Vs. CIT, [1991] 187 ITR 688 (SC), wherein it has been held as under:- An appellate authority has all the powers which the original authority may have in deciding the question before it subject to the restrictions or limi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld by the Tribunal and the High Court, was dismissed making clear that the decision was limited to the power of the assessing authority to entertain claim for deduction otherwise than by a revised return, and did not impinge on the power of the Tribunal. 9. In CIT Vs. Natraj Stationery Products (P) Ltd., (2009) 312 ITR 222 reliance placed on Goetze (India) Ltd. (supra) by the Revenue was rejected, as the assessee had not made any new claim‟ but had asked for re-computation of deduction under Section 80-IB. The said decision may not be squarely applicable but the Courts have taken a pragmatic view and not the technical view as what is required to be determined is the taxable income of the assessee in accordance with thelaw. In thi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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