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TMI Blog2020 (7) TMI 496X X X X Extracts X X X X X X X X Extracts X X X X ..... ome. Taking into consideration entirety of facts we are of considered view that asessee s claim of deduction under section 80JJAA of the Act deserves to be admitted for consideration. Since, legality and quantum of the claim were not examined by any of the lower authorities, without commenting on merit of claim, we deem it appropriate to restore the issue back to the file of Assessing Officer for consideration of same. While examining assessee s claim, the Assessing Officer shall allow reasonable opportunity of hearing to the asseesee, in accordance with law. Appeal of the assessee is allowed for statistical purpose. - ITA NO.1861/MUM/2018 - - - Dated:- 30-6-2020 - Shri Vikas Awasthy, Judicial Member And Shri S. Rifaur Rahman, Accountant Member For the Appellant : Shri Rajan Vora For the Respondent : Ms. Mamta Bansal ORDER PER VIKAS AWASTHY, JM: This appeal has been filed by the assessee assailing the order of Commissioner of Income Tax (Appeals)-17, Mumbai (in short CIT(A)) dated 27/12 /2017 for the assessment year 2011-12, originating from proceedings under section 154 of the Income Tax Act, 1961 (in short the Act ) . 2. The brief facts of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sment proceedings and filed Form DA, mandatory for claiming deduction. The Assessing Officer while passing order under section 143(3) of the Act did not consider assessee s claim under section 80JJAA of the Act. In fact, there was no reference in the assessment order of assessee s claim of deduction lodged at the time of assessment proceedings. Thereafter, the assessee filed rectification petition under section 154 of the Act on 08/06/2016 for considering claim of deduction under section 80JJAA of the Act. The Assessing Officer in proceedings under section 154 of the Act rejected assessee s claim by placing reliance on the decision rendered in the case of Goetze (India) Ltd. vs. CIT (supra). The petition of the assesse seeking rectification was not rejected by the Assessing Officer on the ground of maintainability. The ld. Authorized Representative of the assessee submitted that as assessee s claim of deduction was for the first time considered and rejected by the Assessing Officer in proceedings under section 154 of the Act, hence, the assessee filed appeal against the order passed under section 154 of the Act before CIT(A) . 3.1. The ld.Authorized Representative of the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion before the Assessing Officer on 28-3-2015, whereas, the assessment order was passed on 27-3-2015 i.e. prior to the claim made by the assesse. Thus, the Assessing Officer had no occasion to consider assessee s claim during assessment proceedings. The ld. Departmental Representative further submitted that non consideration of a claim, not made in return of income during assessment proceedings does not amount to mistake apparent from record. The scope for invoking provisions of section 154 for rectification of mistake is very narrow. A fresh claim made by the assessee cannot be entertained in proceedings under section 154 of the Act. 5. The ld. Authorised Representative of the assesse clarified that the fresh claim was filed with the Assessing Officer before the receipt of the assessment order. Till the filing of the claim, the assesse was not aware that the assessment order was passed. The assesse made claim well within his rights during assessment proceedings. While passing the order U/s154 of the Act, the Assessing Officer nowhere observed that the claim was made for the first time in rectification proceedings. 6. We have heard the submissions made by rival sides and have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecluded from entertaining assessee s fresh claim not made in the return of income. The Hon ble Jurisdictional High Court in the case of CIT vs. Pruthvi Brokers Shareholders (supra) has held that an assessee is entitled to raise before appellate authorities additional claims not made in the return of income. Taking into consideration entirety of facts we are of considered view that asessee s claim of deduction under section 80JJAA of the Act deserves to be admitted for consideration. 10. Since, legality and quantum of the claim were not examined by any of the lower authorities, without commenting on merit of claim, we deem it appropriate to restore the issue back to the file of Assessing Officer for consideration of same. While examining assessee s claim, the Assessing Officer shall allow reasonable opportunity of hearing to the asseesee, in accordance with law. 11. In the result, appeal of the assessee is allowed for statistical purpose. 12. This appeal was heard on 30/01/2020. As per Rule 34(5) of the Income Tax (Appellate Tribunal) Rules, 1963, (ITAT Rules, 1963), the order was required to be ordinarily pronounced within a period of 90 days from the date of conclusio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary steps taken suo motu by Hon ble jurisdictional High Court and Hon ble Supreme Court also indicate that this period of lockdown cannot be treated as an ordinary period during which the normal time limits are to remain in force. In our considered view, even without the words ordinarily , in the light of the above analysis of the legal position, the period during which ITA No. 6103 and lockout was in force is to excluded for the purpose of time limits set out in rule 34(5) of the Appellate Tribunal Rules, 1963. Viewed thus, the exception, to 90-day time-limit for pronouncement of orders, inherent in rule 34(5)(c), with respect to the pronouncement of orders within ninety days, clearly comes into play in the present case. Of course, there is no, and there cannot be any, bar on the discretion of the benches to refix the matters for clarifications because of considerable time lag between the point of time when the hearing is concluded and the point of time when the order thereon is being finalized, but then, in our considered view, no such exercise was required to be carried out on the facts of this case. Thus, in light of above facts and the decision of coordinate Bench, the pr ..... 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