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TMI Blog2006 (5) TMI 547X X X X Extracts X X X X X X X X Extracts X X X X ..... the income-tax Act. The appellant has brought to the notice of the learned Commissioner various decisions of High Courts and Supreme Court that the appellant is not prevented from making afresh claim before the appellate authority 187 ITR 86 (Ker.), 193 ITR 669, 187 ITR 688 (SC), 70 ITR 45, 193 ITR 624 (Ker.) 3. The learned CIT(A) has rejected the claim on the ground that the appellant has not satisfied that the condition that he was prevented by reasonable cause in not raising the issue before the assessing officer. The learned CIT(A) also observed that the certificate has to be obtained from the Chartered Accountant which amounts to new facts. It was submitted that the omission to claim was due to inadvertence and there is reasonable cau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llate authority after expatiating over the issue in paras. 5, 6, 7 & 8 has observed at Para 9, as under: On consideration of the facts of the case, I hold that the fresh ground raised regarding deduction Under Section 80HHC cannot be admitted for two reasons: (i)The appellant has not satisfied that the condition that he was prevented by reasonable cause in not raising the issue before the assessing officer, I have already referred to the fact that the assessing officer had given ample opportunities to the appellant to present his case. (ii) The Assessing Officer can allow deduction Under Section 80HHV only after obtaining the report from the Chartered Accountant in the prescribed form. Thus, he has to ascertain new facts as the deduct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 143(2) was issued posting the case to 16-11-2000. The assessee was given opportunities for hearing on 23-2-2001, 7-3-2001, 7-6-2001, 10-10-2001, 17-1-2002 and 21-2-2002 and the assessment was finally completed on 27-2-2002. Thus the records show that the assessing officer had not completed the assessment in haste. He had given several opportunities to the appellant to present his case and the case was posted for hearing as many as on 7 occasions. The assessee could have very well raised this issue of deduction Under Section 80HHC at any of the hearing. Further it may be noticed that the assessee was represented by a Chartered Accountant and at-least he should have raised the claim for deduction under Section 80HHC by filing revi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icial. The taxing authorities should exercise quasi-judicial powers, in doing so he must act in a fair and not in a partisan manner. Being a quasi-judicial authority, the assessing officer is duty bound to determine the correct tax payable by the assessee. In arriving at such correct tax, the assessing officer is duty bound to allow the deductions and exemptions available to the assessee in accordance with law and disallow the claims, which are not eligible as per law. It is not fair and proper to argue and presume that the assessee should be aware of all the provisions of the complex nature of the Income-tax Act. When the facts are available on record before the assessing officer and particularly when he has also observed that the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er decision should prevail over the earlier decision of the same Court, we have to state that even though Stepwell Industries case is a latter decision, it was delivered by a Division Bench whereas the decision in the case of National Thermal Power Corporation, supra, was rendered by a Bench consisting of three Judges. In such circumstances, we are of the considered opinion that the judgment of the larger Bench of the very same Court should prevail over the judgment of the Division Bench. Hence, the contention of the learned DR that the Stepwell Industries case has over ruled the NTPC's case, cannot hold water. Even though the decision of Stepwell Industries case appears not to have been brought to the notice of the Supreme Court in NTP ..... X X X X Extracts X X X X X X X X Extracts X X X X
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