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TMI Blog2016 (9) TMI 1212X X X X Extracts X X X X X X X X Extracts X X X X ..... l claim provided the facts are on record. When the assessee is eligible for exemption under Section 89(1) and 10(10C) of the Act, the same can very well be brought to the notice of the Assessing Officer. This Tribunal is of the considered opinion that the Assessing Officer has to examine the same on merit. In view of the above, this Tribunal is unable to uphold the order of the lower authority and accordingly, the same is set aside. The Assessing Officer shall examine the claim on merit and thereafter decide the issue in accordance with after giving a reasonable opportunity to the assessee. - Decided in favour of assessee - ITA No.508/Mds/2016 - - - Dated:- 18-8-2016 - SHRI N.R.S. GANESAN, JUDICIAL MEMBER For The Appellant : Shri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls) found that the appeal is maintainable before him. However, in view of the judgment of Apex Court in Goetze (India) Ltd. v. CIT (2006) 284 ITR 323, the CIT(Appeals) found that the assessee cannot make a new claim without filing a revised return. The CIT(Appeals) further found that since the claim of exemption under Section 10(10C) of the Act was not claimed in the return filed, the same cannot be raised by way of petition under Section 154 of the Act. 3. According to the Ld. counsel, the claim of the assessee for exemption under Section 10(10C) of the Act is not in dispute. Merely because the retired employee by mistake omitted to claim exemption under Section 10(10C) of the Act, the Revenue cannot take advantage of that fact and reta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clearly found that the power of this Tribunal is to entertain the additional ground is not impugned. Therefore, according to the Ld. counsel, this Tribunal can very well examine the claim made by the assessee under Section 10(10C) of the Act. If the Tribunal feels that the claim has to be first examined by the Assessing Officer, the Ld.counsel submitted that he has no objection in remitting back the matter to the file of the Assessing Officer. 5. On the contrary, Sh. P. Radhakrishnan, the Ld. Departmental Representative, submitted that the assessee filed appeal before the Commissioner almost nearly eight years from the date of intimation received under Section 143(1) of the Act. The assessee filed an application under Section 264 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed the relevant material available on record. Admittedly, the assessee filed return of income claiming deduction under Section 89(1) of the Act in respect of the retirement benefit received from ICICI Bank on the basis of Early Retirement Option Scheme, 2003. Admittedly, the assessee has not made any claim for exemption under Section 10(10C) of the Act. The assessee has also not filed any revised return. Against the intimation under Section 143(1) of the Act, the assessee has not filed any appeal. In fact, the assessee filed a petition under Section 264 of the Act before the Administrative Commissioner. This petition filed before the Administrative Commissioner under Section 264 of the Act against the intimation issued under Section 143(1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of National Thermal Power Co. Ltd. (supra) found that this Tribunal can entertain an additional claim provided the facts are on record. In Goetze (India) Ltd. (supra), the Apex Court again reiterated the power of the Tribunal by observing that the order in Goetze (India) Ltd. would not impugn the power of the Tribunal. 7. We have also carefully gone through the judgment of Apex Court in CIT v. Shelly Products and Another (2003) 261 ITR 367. The Apex Court found that the assessee can very well bring to the notice of the Assessing Officer in case an income which is otherwise chargeable to tax was included in the total income. The Apex Court observed as follows:- if the assessee has, by mistake or inadvertence or on account of ign ..... X X X X Extracts X X X X X X X X Extracts X X X X
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