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TMI Blog2013 (11) TMI 523X X X X Extracts X X X X X X X X Extracts X X X X ..... laims on the ground that claims were not made by way of filing the revised return under Section 139(5) of the Income-tax Act, 1961. The assessee did neither claim those additional claims in the Original/Revised return nor claimed before Assessing Officer but were claimed first time before the ld.CIT(A). Those claims were - a) Inadvertent disallowance taken in the return of income under the mistaken belief that freight expenses of Rs.1,62,25,506/- were debited to the Profit & Loss A/c, whereas said freight expenses were not at all debited to the Profit & Loss A/c of that year; and b) another freight expenses of Rs.35,83,542/- which was debited to the 'Prior Period Expenses A/c(PPE)' (which is shown below-the-line in P&L A/c), whereas while ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecting the above claims in respect of freight expenses, prior period expenses and deduction under Section 43B by summarily ignoring the judgements of Apex Court, High Courts and Tribunals and Board's Circulars dated 11.04.1955 wherein it has been clearly held that only legitimate tax due from the assessee should be collected and the assessee should not be penalized because of errors/omissions or ignorance of law. 5. The appellant craves leave to add, modify or amend any of the grounds of appeal either before or at the time of hearing." At the time of hearing before us, it is stated by the learned counsel that during the course of assessment proceedings, the assessee requested for allowability of additional claims of expenditure amounting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the lower authorities. He submitted that there is no dispute that all the facts relating to additional claim of expenditure made by the assessee are already on record. He also pointed out that part of the claim is with regard to allowability of Section 43B which was disallowed in the earlier year when the payment was not made. That as per the express provisions of Section 43B, the deduction is allowable in the year in which payment is made. That the assessee made the payment during the accounting year relevant to assessment year under consideration and, therefore, it was incumbent upon the Assessing Officer to allow the deduction irrespective of the claim being made by the assessee. He, therefore, submitted that the entire additional cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he decision of Hon'ble Apex Court in the case of Goetze (India) Ltd. Vs. CIT - [2006] 284 ITR 323. On further appeal, the ITAT accepted the assessee's claim and remanded the matter to the Assessing Officer to consider the assessee's claim on merits. The ITAT also held that an officer must not taken advantage of ignorance of the assessee. That the Revenue, aggrieved with the order of the ITAT, was in appeal before the Hon'ble Jurisdictional High Court. That the Hon'ble Jurisdictional High Court upheld the order of the ITAT and the appeal of the Revenue was dismissed following its own earlier orders. That the relevant portion of judgment of Hon'ble Jurisdictional High Court is reproduced below for ready reference:- "8. Decision in the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e tribunal could not have entertained the plea, holding that the tribunal was empowered to deal with the issue and was entitled to determine the claim of loss, if at all, under one section/provision or the other. 11. Decision in Goetze (India) Ltd. (supra) was again relied upon by the Revenue in CIT v. Jindal Saw Pipes Ltd. [2010] 328 ITR 338 (Delhi) but the contention was not accepted, observing that the tribunal's jurisdiction is comprehensive and assimilates issues in the appeal from the order of the CIT (Appeals) and the tribunal has the discretion to allow a new ground to be raised. 12. In view of the aforesaid discussion, we are not inclined to interfere with order passed by the tribunal. The appeal is dismissed." That the facts of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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