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TMI Blog2017 (12) TMI 880X X X X Extracts X X X X X X X X Extracts X X X X ..... in his original or revised return of income, was not wrong on the part of the CIT(A) in entertaining the new claim of the assessee. Therefore, we hold that the order passed by the ld. CIT(A) does not have any infirmity. Interest under section 234D - whether assessing officer was right in charging interest on excess refund or not? - Held that:- AO was right in charging the interest under section 234D of the Act. The explanation 2 of section 234D clarifies that section 234D(2) shall apply to an assessment year commencing before the 1st day of June, 2003 and we find the A.Y under consideration is commenced before 01.06.2003 and if the proceedings in respect of such assessment year is completed after the said date i.e. 29.03.2004, therefore, we hold that the ld. CIT(A) was not justified in allowing the ground raised by the assessee challenging the charging of interest, therefore, we quash the order passed by CIT(A). Hence, we confirm the order passed by AO U/s 234D of the Act. - Decided in favour of assessee. - ITA No.356 And 338/Kol/2016 - - - Dated:- 15-12-2017 - SHRI S. S. VISWANETHRA RAVI, JM AND DR. A.L.SAINI, AM For The Appellant : Shri Arindam Bhattacharjee, Addl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issions of the assessee before the AO, came to conclusion that Decision of Hon ble Supreme Court in the case of Goetze(India) Ltd. Vs. CIT (supra) has only limited application and the Appellate Authorities have the power to allow deduction/claim for expenditure to assessee to which he was otherwise entitled, even though no claim was made by the assessee in the return. During the hearing, the assessee also emphasized on the order of Hon ble Kolkata ITAT in assessee s own case in ITA Nos.2182/Kol/2006 wherein the assessee claimed prior period expenditure of ₹ 1,00,000/-, during the assessment proceedings of that assessment year. In this case, the claim of the assesseewas rejected by the AO but the same was allowed by the ld. CIT(A) and on further appeal to the ITAT by Revenue wherein the Hon ble ITAT upheld the order of ld. CIT(A) dismissing the appeal of the Revenue. In this order at para 20.2 the Hon ble ITAT held as follows: We are aware at this juncture that any claim could be made only by filing a valid return as has been held by the Hon ble Apex Court in the case Goetz India Ltd reported in 284 ITR 323 (SC). But the same judgment states in the last para that the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut the AO rejected the claim of the assessee but the ld. CIT(A) allowed the case of the assessee. We are of the view that judgment of the Hon ble Supreme Court in the case of Goetze(India) Ltd. Vs. CIT (284 ITR 323) clearly says that appellate authorities have the power to allow deduction or claim for expenditure of the assessee to which he was otherwise entitled, even though no claim was made by the assessee in the return of income and accordingly, he has made a claim before the ld. CIT(A) who has allowed the claim of the assessee. Therefore, considering factual position, we are of the view that the order passed by the ld. CIT(A) accepting the new claim which was not made by the assessee in his original or revised return of income, was not wrong on the part of the CIT(A) in entertaining the new claim of the assessee. Therefore, we hold that the order passed by the ld. CIT(A) does not have any infirmity. Therefore, we confirm the order passed by the ld. CIT(A). 8. In the result, the appeal filed by the Revenue is dismissed. 9.Now, we deal with the Revenue s appeal in ITA No.356/Kol/2016 wherein the Revenue has raised the following grounds of appeal: 1. Whether on the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgment of Van Oord Dredging and Marine Contractors BV (2008) 297 ITR 0115 ITAT (Mum) wherein it has been held that the provisions of section 234D were not in the statute book during the relevant period and were inserted by the Finance Act, 2003, w.e.f June1, 2003. In this case the processing u/s 143(1)(a) was made on February 25, 2003, wherein the order was passed granting refund to the assessee and on which date the provision of section 234D had not come on the statute book. Interest u/s 234D of the Act was not chargeable. Therefore, ld CIT(A) deleted the interest charged U/s 234D of the Act at ₹ 47,98,261/-. 12. Not being satisfied with the order of CIT(A), the Revenue is in appeal before us.Theld Counsel for the assesee has defended the order passed by the ld CIT(A). Whereas, ld. DR for the Revenue has submitted before us that as per Explanation 2 of the Section 234D of the Act, the provisions of this section shall also apply to an assessment year commencing before the 1st Day of June, 2003, if the proceedings in respect of such assessment year is completed after the said date. 13. We have heard both the parties and perused the materials available on record, we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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