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TMI Blog2013 (12) TMI 122X X X X Extracts X X X X X X X X Extracts X X X X ..... f the authorities had verified whether the amount effectively represented sale proceeds of listed securities - The issue was remitted back to the file of the Assessing Officer for fresh decision. - I.T.A. No. 771/Mds/2013 - - - Dated:- 23-8-2013 - Abraham P George And V Durga Rao, JJ. For the Appellant : Shri S Sridhar, Adv. For the Respondent : Shri Shaji P Jacob, Addl.CIT ORDER:- PER : Abraham P George In this appeal, grievance raised by the assessee is that CIT(Appeals) confirmed an addition of Rs. 12,64,99,367/- made by the Assessing Officer. 2. Facts apropos are that assessee, a company engaged in travel service business, had filed its return for the impugned assessment year, on 22.11.2006 declaring NIL income. The said return was subjected to a processing under Section 143(1) of Income-tax Act, 1961 (in short 'the Act'). Thereafter, a notice under Section 148 was issued by the Assessing Officer on 23.2.2011. The reason recorded for the reopening was as under:- "South India Travels Pvt. Limited, the assessee company has filed its return of income for assessment year 206-07 on 22.11.2006 which was processed u/s. 143(1) of the I.T. Act, 1961 on 05.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad of code 2555. As per assessee, all the details were filed before Assessing Officer to show that it was an exempt income. Assessee also pointed out that it was the first year of e-filing of return and the mistake was an inadvertent one. 5. However, the CIT(Appeals) was not impressed. According to him, assessee had not claimed any exemption under Section 10(38) of the Act in the original return. In Schedule 13 of the return form, in which assessee had to show such figure, the amount was shown as NIL. Therefore, according to ld. CIT(Appeals), it was a fresh claim that was never made in the original return of income. Relying on the decision of co-ordinate Bench of this Tribunal in the case of ADIT (International Taxation) v. Litostroj (2012) 54 SOT (URO) 37, ld. CIT(A) held that a fresh claim that was not available in the original return, could not be made other than through a revised return. No revised return was filed by the assessee. Hence, according to him, the A.O. was justified in making the addition. Reliance was also placed on the decision of Hon'ble jurisdictional High Court in the case of CIT v. Shriram Investments (TCA No. 344 of 2005 dated 16.6.2012). 6. Now before u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2012) 53 SOT 15, learned A.R. submitted that the decision of Hon'ble Apex Court in the case of Goetze (India) Ltd. (supra) was required to be carefully applied in matters of statutory allowances available to the assessee. As per learned A.R., there was genetic difference in the concept of a deduction by way of statutory allowance and deduction by way of other expenditure. What was claimed was deduction by way of statutory allowance. Section 10(38) was clear in that, income arising from a transfer of equity share held as long term capital asset, where such transaction was chargeable to security transaction tax, was exempt. Reliance was also placed on the decision of Hon'ble Bombay High Court in the case of CIT v. Pruthvi Brokers Shareholders Pvt. Ltd. (349 ITR 336). According to him, in this decision, Hon'ble Bombay High Court had held that even where Assessing Officer had not granted a deduction on the basis of a letter requesting an amendment of the return filed, appellate authorities were entitled to consider the claim and adjudicate the same. Reliance was also placed on the decision of Hon'ble Allahabad High Court in the case of Raj Rani Gulati (Smt) v. CIT (346 ITR 543). 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which is again a part of the return. This particular Schedule 1 is reproduced hereunder:- SCHEDULE 1: Computation of income from business or profession A. From business or profession other than speculative business 1. Net profit or loss as per consolidated profit and loss account 2500 96762083 2. Net profit or loss from speculative business included in (i) 2505 NIL 3. Net profit or loss as per profit and loss account from business or profession other than speculative business [(1) (2)] 2510 96762083 4. Income / receipts credited to profit and loss account considered under other heads of income 2515 591892 5. Expenditure debited to profit and loss account considered under other heads of income 2520 NIL 6. Balance profit and loss as per profit and loss account [(3)-(4)+(5)] 2525 96170191 7. Amount claimed deductible under sections 10A/10AA/10B/10BA (Sch.-9) 2530 NIL 8. Profit or loss from business referred to in following sections in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the above computation is marked in the negative. In other words, it is claimed as a deduction. Case of the Revenue is that if the said sum was an exempt income, it should have come in item No.(a) of Sl.No.10 of the same Schedule. The said item mentions about exempt income. Schedule 13 of the return mentioned at serial No.10 is reproduced hereunder:- SCHEDULE 13 Income not included in total income (exempt incomes) (a) Interest 5501 NIL (b) Dividend income 5503 NIL (c) Long-term capital gains from transactions on which securities transaction tax paid 5503 NIL (d) Agricultural income 5505 4580 (e) Others 5504 NIL (f) Total 5520 4580 Against item No.(c), assessee had shown the amount NIL. There is no dispute that during the course of assessment proceedings, assessee had given a work out as to how the sum of Rs. 12,64,99,367/- was arrived at which work out has been reproduced by us at para-2 above. At the same time, we also find that in part 'A' of the Return form under the head "Other Information", agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the claim was indeed there, but erroneously shown against different serial number. Learned D.R. has not disputed that this was the first year of filing e-returns. The return was originally subjected only to a processing under Section 143(1) of the Act and there was no occasion for the assessee to submit a detailed computation before the Assessing Officer, but in the proceedings subsequent to the reopening. In such proceedings, assessee had indeed brought to the attention of the A.O. that the sum of Rs. 12,64,99,367/- shown by it at code 2595 was nothing but income exempt under Section 10(38) of the Act, being sale of listed shares. In such a situation, we cannot say that it was a fresh claim made by the assessee. Only mistake was that it was shown against a wrong serial number. Assessing Officer never questioned the worked out based on which the assessee had arrived the sum of Rs. 12,64,99,367/-. Even otherwise all deductions claimed by the assessee from its receipts of Rs.39,85,44,303 /- were allowed. 12. Coming to the case of Shriram Investments (supra),strongly relied on by the Ld. D.R. no doubt it was held therein that for making a claim other than what was made in the origin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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