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TMI Blog2017 (9) TMI 576X X X X Extracts X X X X X X X X Extracts X X X X ..... he provisions of law. - I.T.A. No. 548/HYD/2017 - - - Dated:- 7-9-2017 - Shri D. Manmohan, Vice President And Shri Inturi Rama Rao, Accountant Member For the Assessee : Shri A.V. Raghu Ram, AR For the Revenue : Smt. Suman Malik, DR ORDER Per Inturi Rama Rao, A. M. This appeal filed by assessee-company is directed against the order of the learned Commissioner of Income Tax (Appeals)-5, Hyderabad, dated 30-12-2016 for the AY. 2011-12. The appellant raised the following Grounds of Appeal: 1. The order of the learned CIT (A) not only is erroneous both on facts and in law but is contrary to the settled principles of law. 2. The learned CIT(A) erred in confirming the action of the AO in not accepting the revised computation based on audited financial statements without appreciating the legal position that the AO is bound to make assessment based only on audited financial statements and not based on provisional financial statements. 3. The learned CIT(A) erred in holding that such revised computation based on Audited financial statements should be filed in the form revised return though no such ratio would apply for a decision by the appellate au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,47,195/- u/s. 115JB. During the assessment proceedings, the appellant filed revised computation of income based on audited accounts revising the income into loss of ₹ 1,04,90,340/- under normal provisions and ₹ 4,04,46,756/- under Section 115JB as against admitted originally of ₹ 3,90,47,195/- along with audited accounts and audit report. The return was filed on the basis of provisional statement of accounts as the statutory audit was not completed. The returns were filed on the basis of the provisional accounts and it was claimed that during the course of audit it was found that reversal of provision for diminution in value of investments was taken as ₹ 3,33,18,048/ - whereas the correct figure is ₹ 47, 10,269/- only. On the basis of the original return filed notices under Section 143(2) and 142(1) were issued to the assessee to produce the documents/accounts. Assessment was completed under Section 143(3) on the basis of the original return. The assesse filed a rectification petition which was also rejected. 5.3 It is quite possible and natural that in submitting a return, some bona fide omission or wrong statement may have occurred. In order t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e had maintained the accounts, it was bound to file the returns on that basis. 5.7 The Honble Supreme Court in the case of Goetze (India) Ltd. (2006) 284 ITR 323 (SC), held that the Assessing Officer has no power to entertain fresh claim made by the assessee after filing of the original return other than by filing of revised return. 5.8 Law is well settled that when the statute requires to do certain thing in certain way, the thing must be done in that way or not at all. Other methods or mode of performance are impliedly and necessarily forbidden. The aforesaid settled legal proposition is based on a legal maxim Expressio unius est exclusion alteris , meaning thereby that if a statute provides for a thing to be done in a particular manner, then it has to be done in that manner and in no other manner and following of other course is not permissible. (Taylor v. Taylor (1876) 1 Ch.D.426; Nazir Ahmed v. King Emperor, AIR 1936 PC 253; Ram Phal Kundu v. Kamal Sharma and Indian Banks Association v. Devkala Consultancy Service AIR 2004 SC 2615). 5.9 Therefore, I am of the view that the Assessing Officer is justified in completing the assessment under Section 143(3) of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m is not sustainable. As indicated by us hereinabove, this power of entertaining the claim vests with the appellate authorities based on the facts and circumstances of the case. The power of the appellate authorities to consider claims made based on material already on record is coterminous with the power of the Assessing Officer. The failure to advert to the claim in the original return or the revised return cannot denude the appellate authorities of their power to consider the claim, if, the relevant material is available on record and is otherwise tenable in law. Any other view, in our opinion, will set at naught the plenary powers of appellate authorities. 13. The judgment of the Division Bench of this Court rendered in Shriram Investments case (supra) , which is relied upon by the learned counsel for the Revenue, is clearly distinguishable, as in that case, the assessee had sought assessment of tax by disclosing a lower taxable income, albeit, by filing a second revised return. It is in that context that the Division Bench came to the conclusion that the second revised return, which was filed beyond the period of limitation, being non est in law, would not be considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above, in particular, the judgments rendered by the Supreme Court in Goetze's India Ltd.'s case (supra) and National Thermal Power Co. Ltd.'s case (supra), and those, rendered by the Division Bench of this Court in Ramco Cements Ltd. (supra) and Malind Laboratories (P.) Ltd. (supra) as also the judgments of the Delhi High Court in Sam Global Securities Ltd.'s case (supra) and Jai Parabolic Springs Ltd.'s case (supra), that, even if, the claim made by the assessee company does not form part of the original return or even the revised return, it could still be considered, if, the relevant material was available on record, either by the appellate authorities, (which includes both the CIT(A) and the Tribunal) by themselves, or on remand, by the Assessing Officer. In the instant case, the Tribunal, on perusal of the record, found that the relevant material qua the claim made by the assessee company under Section 80IB (10) of the Act was placed on record by the assessee company during the assessment proceedings and therefore, it deemed it fit to direct its reexamination by the Assessing Officer. 18.1 In our opinion, the view taken by the Tribunal is unexcep ..... X X X X Extracts X X X X X X X X Extracts X X X X
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