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TMI Blog2015 (4) TMI 88X X X X Extracts X X X X X X X X Extracts X X X X ..... icate that it is one of the research institutions primafacie. Not only that Madras Diabetes Research Foundation to whom another amount was paid also required to be examined whether the same was approved under the Act so as to allow the benefit. Without examination, the claim cannot be allowed. As seen from the order of the Assessing Officer, Assessing Officer has not given any finding that assessee's claim u/s.80GGA is otherwise allowable but for the provisions of 80GGA(3) which was invoked. Assessee having accepted the order u/s.143(3) cannot seek relief u/s.35(1) in the proceeding u/s 154. Had he preferred appeal of the order u/s.143(3), the CIT(A) could have examined/directed the Assessing Officer to examine whether alternate claim can be entertained. We are of the opinion that the same cannot be done in an appeal u/s.154, which has limited scope and jurisdiction. As held in the case of T.S. Balaram, ITO, Company Circle-IV Bombay Vs. Volkart Brothers and Others [1971 (8) TMI 3 - SUPREME Court] a mistake apparent on record must be an erroneous and evident mistake and not same thing which can be established by a long drawn process of reasoning on which there may be conceiva ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the scrutiny proceedings u/s.143(3), the Assessing Officer examined the claim and found that assessee has given donation of ₹ 1 Crore to M/s.Naandi Foundation on 25-06-2007 and an amount of ₹ 50 Lakhs to M/s.Madras Diabetes Research Foundation on 17-03-2008. Assessee had business income and declared the same at ₹ 77,21,353/-. Since assessee has business income, Assessing Officer was of the opinion that as per Sub-Section (3) of Section 80GGA, assessee is not eligible to claim deduction as he has income from business. He has discussed the provisions of Section 80GGA and came to the conclusion that the deduction claimed u/s.80GGA is not allowable. Accordingly, he disallowed the amount and added to the income returned thereby determining total income at ₹ 15,44,82,540/-. This order of the Assessing Officer has been accepted by assessee. No appeal has been preferred. However, assessee subsequently preferred an application u/s.154 dt.09-11-2010 seeking rectification of the order to allow above amount u/s.35(1)(i)/(ii) as an alternate claim. The Assessing Officer vide his letter dt.09-03-2011 rejected the application on the reason that there is no mistake appar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s does not survive as it does not emanate from the issue in the order. 7. Coming to the Revenue's appeal, we have noticed that Ld.DR has not come fully prepared. It was also noticed that the order u/s.154 which is the subject matter of appeal was not even filed along with appeal even though order u/s.143(3) was enclosed. However, assessee's appeal do contain the order. So Revenue's appeal is heard. 8. We are of the opinion that Ld.CIT(A) exceeded the jurisdiction/powers granted in directing the Assessing Officer to examine the issue u/s.35(1). Vide para 5 of the order, when dismissing the assessee's contention u/s.154, the Ld.CIT(A) was of the opinion that in order to allow deduction u/s.35(1), Assessing Officer has to be first satisfied with conditions contained under the said sections and deduction is not automatic . Ld. CIT(A) held that the alternate claim made by the appellant u/s.154 is not a mistake apparent from record. Having given an opinion/ finding while rejecting the application u/s.154, the CIT(A) should not have traversed beyond that in directing the AO to examine the claim on merits. As already stated, assessee has not preferred any appeal on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eyond his powers in substituting his own opinion on the issue relating to the provisions of section 50 for the opinion of the Assessing Officer in the absence of any appeal before him against the assessment order passed by the Assessing Officer under section 143(3). Therefore, the Tribunal set aside the order of the Commissioner (Appeals) and restored the order of the Assessing Officer under section 154. On appeal: Held, dismissing the appeal, that the order of assessment passed under section 143(3) of the Act had attained finality and there was no appeal filed against that order. The Commissioner (Appeals) illegally set aside the assessment order under section 143(3). It was only the order under section 154 seeking rectification that was the subject matter of challenge before him. The order passed by the Tribunal was in conformity with law . 9. Even though provisions of Section 80GGA and 35(1)(i),(ii) are synonymous, the claim is not allowable automatically u/s.35(1). It is to be examined whether those institutions/research bodies to whom the payments were made are eligible to claim such deduction and whether necessary approvals are there to grant benefit. As seen from the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e facts and in the circumstances of the case and in law, the learned Commissioner (Appeals) erred by upholding the denial of deduction claimed under section 80GGA. She failed to appreciate that the Gross Total Income of the appellant does not include income chargeable under the head 'Profits and gains of business or profession', after allowing deduction u/s.35(1)(ii) and (iia). 3. On the facts and in the circumstances of the case and in law, the learned Commissioner (Appeals) erred by upholding the deduction u/s.80GGA was not allowable from income from sources other than business. While holding so, she completely misread and thereby thoroughly misinterpreted the provisions of section 80GGA. She ought to have appreciated that such denial goes against the spirit and intent of the said provisions. 4. On the facts and in the circumstances of the case and in law, the learned Commissioner (Appeals) failed to appreciate that the deduction under section 80GGA was a benefit granted by the statue and as such no assessee can be discriminated against in so far as availing of such benefit is concerned. She ought to have appreciated the real intent and purpose of the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, to a rural development fund set up and notified by the Central Government and any sum paid to the National Urban Poverty Eradication Fund set up and notified by the Central Government. Sub-section (3) of section 80GGA reads as under:- (3) Notwithstanding anything contained in sub-section (1), no deduction under this section shall be allowed in the case of an assessee whose gross total income includes income which is chargeable under the head profits and gains of business or profession. 12. A reading of sub-section (3) which begins with a non obstante clause makes it clear that an assessee whose gross total income includes income which is chargeable under the head profits or gains of business or profession shall not be eligible for deduction u/s 80GGA of the Act. Section 28 of the Act provides for income which shall be chargeable to income-tax under the head profits and gains of business or profession. Section 29 of the Act provides that income u/s 28 shall be computed in accordance with the provisions contained in sections 30 to 43D of the Act. Section 30 to 43D provides for various deductions which can be claimed by an assessee while computing the income under the h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive profit. Both positive and negative profits are of revenue character. Both must enter into computation, wherever it becomes material in the same mode of the taxable income of the assessee. The aforesaid view was again reiterated by the Hon ble Supreme Court in case of Reliance Jute and Industries Limited V/s. CIT (120 ITR 921) and CIT V/s. Goldcoin Health (P) Ltd. (304 ITR 308). Therefore, in view of the specific bar created under sub-section (3) of section 80GGA, the assessee is not entitled to avail deduction u/s 80GGA of the Act. In aforesaid view of the matter, we uphold the order of the CIT(A) on this issue. Thus, the grounds raised by the assessee are dismissed . 13. It was fairly admitted by the Ld.Counsel that the matter was pending before the Hon'ble High Court. Since the issue is already considered against assessee in regular proceedings u/s.143(3) r.w.s.147, there is no need to consider the issue again in this year as assessee has accepted the order u/s.143(3) and no proceedings are pending on that. Further, the fact that the matter was contested before the Hon'ble High Court itself shows that it is a debatable one, therefore, the same cannot be considered ..... X X X X Extracts X X X X X X X X Extracts X X X X
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