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TMI Blog2011 (11) TMI 742X X X X Extracts X X X X X X X X Extracts X X X X ..... ous and that correct treatment should be as per the statutory provisions. In that context CIT(Appeals) as well as Tribunal both were justified in entertaining such additional grounds. Had the entire issue being highly contested on facts and had such claim not being made in original assessment, could the same have been entertained by the Assessing Officer without revised return and whether consequentially higher authorities could have directed the Assessing Officer to examine the same are questions we are not required to go into. - Tax Appeal No. 97 of 2010 - - - Dated:- 29-11-2011 - Akil Kureshi And Sonia Gokani, JJ. For the Appellant : Manish Bhatt, Mauna M Bhatt For the Opponent : SN Soparkar, Monaal Davawala, Swati Soparkar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wrongly disallowed under Section 43B of the Act. 4. Assessing Officer however, did not take this contention into account observing that submission of the assessee is not considered as it would amount to revising the income/loss shown in the return. The limit to file revised return had expired on 31.3.2004. Therefore, it cannot be revised now. This submission of the assessee is therefore, filed. 5. The issue was carried in appeal by the assessee before the CIT(Appeals). CIT(Appeals) by his order dated 28.11.2005 accepted the additional ground and directed the Assessing Officer to consider the appellant's claim and allow deduction after verification as per the provisions of the Act. 6. Revenue carried the issue in appeal before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Learned senior counsel Shri Bhatt for the Revenue contended that CIT(Appeals) as well as Tribunal erred in entertaining the additional ground of interest which the assessee had not included in the return originally filed. Without revising the return, AO rightly did not accept such an additional contention. He submitted that CIT(Appeals) and Tribunal also could not have required the Assessing Officer to consider the same. Counsel placed heavy reliance on decision of the Apex Court in case of Goetze(India) Ltd. v. Commissioner of Income Tax reported in (2006) 284 ITR 323(SC) to contend that though CIT(Appeals) or Tribunal may have power to admit additional grounds, such powers are not vested with the Assessing Officer. 8. On the other han ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19. In view of the above discussion, it is very clear that there is no prohibition on the powers of the Tribunal to entertain an additional ground which according to the Tribunal arises in the matter and for the just decision of the case. Therefore, there is no infirmity in the order of the Tribunal. 8.1 Counsel further submitted that since the claim of the assessee for excluding expenditure from prohibition of Section 43B of the Act was a pure question of law same, ought to have been entertained by the Assessing Officer himself. Counsel also drew our attention to the decision of the Apex Court in case of Commissioner of Income-tax v Shelly Products and another reported in (2003) 261 ITR 367(SC), wherein the Apex Court observed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice of the concerned authority on the basis of the return furnished, which may have a bearing on the quantum of the refund, such as those the assessee could have urged under section 237 of the Act. The concerned authority, for the limited purpose of calculating the amount to be refunded under section 240 of the Act, may take all such facts into consideration and calculate the amount to be refunded. So viewed, an assessee will not be placed in a more disadvantages position than what he would have been, had an assessment been made in accordance with law. 9. Having heard learned counsel for the parties and having perused the documents on record, we find that though previously assessee had included said amount of ₹ 1.18,53,407/to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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