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TMI Blog2014 (3) TMI 768X X X X Extracts X X X X X X X X Extracts X X X X ..... hen he cannot hide under the shelter of a technicalities to tax a person in respect of an amount which is otherwise not taxable in law but has been so shown erroneously in the return - if the appellant has made the claim during the scrutiny assessment, the AO was not entertaining a claim for deduction but was to appreciate whether the receipt is an income or not - If an amount is not a taxable income, the same can become so only because it was included erroneously in the return - thus, the AO has erred in not accepting the claim of the appellant – thus, there is no infirmity in the order of the CIT(A) – Decided against Revenue. X X X X Extracts X X X X X X X X Extracts X X X X ..... to 13 of the Income Tax Act. From the perusal of the assessment order, it is apparent that the Assessing Officer was satisfied about the claim of the appellant that the income declared in the return u/s.11(1B) was done erroneously, as on this claim made by the appellant during assessment, no adverse finding has been made. He has only harped on the decision of the Hon'ble Supreme Court given in the case of Goetze India Ltd. to say that the claim cannot be entertained as the same was not made through a revised return within the time available u/s 139(5). As against that the appellant has made the claim that such a claim was entertainable in law as has been held in many cases. The AR has also tried to distinguish the aforesaid judgment on the ground that the Hon'ble Supreme Court in that case has referred to the claim of deduction not made in the original return or within the time available u/s 139(5) through a revised return. As per the AR the claim made during the scrutiny assessment was for the rectification of erroneous inclusion of income, otherwise not taxable in law. It has been stated in this respect that an amount which is not an income cannot become income due to errone ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee trust us/.11(1) of the Act which was not originally claimed in the return of income and the assessee has not filed a revised return to claim such deduction. 6.1 We find the issue has been decided in favour of the assessee by the decision of the Hon'ble Bombay High Court in the case of CIT Vs. Pruthvi Brokers and Shareholders (P) Ltd. reported in 349 ITR 336. We find the questions before the Hon'ble High Court were as under : "(A) Whether an assessee can amend a return filed by him for making additional claim for deduction other than filing a revised return? (B) Whether, on the facts and circumstances of the case, the Hon'ble Income-tax Appellate Tribunal, in law, was right in holding that a claim of deduction not made in the original return and not supported by the revised return, is admissible? (C) Whether, on the facts and in the circumstances of the case, the Hon'ble Tribunal, in law, was right in not appreciating the fact that the Assessing Officer has no power to entertain a claim made by an assessee after filing a original return otherwise than by filing a revised return". 6.2 We find the Hon'ble High Court after thoroughly discussing the issue held as under : "In th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... man 1. We are unable to agree. The decision was rendered by a Bench of two learned judges and expressly refers to the judgment of the Bench of three learned judges in National Thermal Power Co. Ltd. v. CIT [1998] 229 ITR 383 (SC). The question before the court was whether the appellant-assessee could make a claim for deduction, other than by filing a revised return. After the return was filed, the appellant sought to claim a deduction by way of a letter before the Assessing Officer. The claim, therefore, was not before the appellate authorities. The deduction was disallowed by the Assessing Officer on the ground that there was no provision under the Act to make an amendment in the return of income by modifying an application at the assessment stage without revising the return. The Commissioner of Income-tax (Appeals) allowed the assessee's appeal. The Tribunal, however, allowed the Department's appeal. In the Supreme Court, the assessee relied upon the judgment in National Thermal Power Co. Ltd. v. CIT [1998] 229 ITR 383 (SC) contending that it was open to the assessee to raise the points of law even before the Tribunal. The Supreme Court held (page 324 of 284 ITR): " ..... X X X X Extracts X X X X X X X X Extracts X X X X
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