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TMI Blog2021 (3) TMI 694X X X X Extracts X X X X X X X X Extracts X X X X ..... PC as the process is automated. The claim of the assessee was allowed by the Assessing Officer by placing reliance on the assessee's own case for the Assessment Year 2005 06. It is pertinent to note that in the instant case, we are not required to examine the validity of the claim of the assessee with regard to relief under Section 80P of the Act on merits as the substantial question of law only pertains to power of the Appellate Authority to entertain such a claim in the absence of such a claim being made in the original return or in the revised return. In view of the aforesaid well settled legal principles, which have been referred to in preceding paragraph, we answer the substantial question of law in the affirmative and against t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; for short) processed the income under Section 143(1) of the Act and added a sum of ₹ 2,95,98,463/- under the head income from 'Business or Profession' and assessed the total income at ₹ 6,17,46,120/-. Consequent to the addition, a demand of ₹ 2,35,69,278/- was raised. Aggrieved by the said intimation issued by CPC under Section 143(1) of the Act, assessee filed an appeal before the Commissioner of Income Tax (Appeals) on the ground that there was a typographical error with respect to the entries with regard to entries made in the Schedule BP, the figure is wrongly at part-A1 was wrongly mentioned as NIL , whereas, the same ought to have been mentioned as ₹ 2,52,18,534/-. The Commissioner of Income Tax (App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 80P of the Act as well as under Section 10(23C)(iiib) of the Act. It is further pointed out that there is no such provision in the Act such as Section 10(23C)(iiib) of the Act. The order passed by the Commissioner of Income Tax (Appeals) as well as the tribunal suffers from the vice of non application of mind. Therefore, the same deserves to be set aside. It is also pointed out that the finding of the Commissioner of Income Tax (Appeals) in allowing the claim and thereafter permitting the Assessing Officer to take action in accordance with law is an exercise in futility as the Assessing Officer is bound by the order passed by the Commissioner of Income Tax (Appeals). Alternatively it is submitted that the mater be remanded to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as not claimed in the original return of income and assessee had not filed a revised return of income to make such a claim. It is also argued that the addition was made by the CPC and not by the Assessing Officer during the course of assessment proceeding. It is also pointed out that the processis automated and assessee was not provided with any opportunity to make a fresh claim by way of revised return before CPC. Therefore, the assessee claimed the same in an appeal and contended that there was a typographical error in the return of income. It is submitted that without prejudice to the aforesaid submissions, the assessee is eligible to make a claim before the appellate authority even if the same is not claimed in the original return of in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven if a claim is not made before the Assessing Officer it can be made before the Appellate Authority. A division bench of High Court of Bombay in PRUTHVI BROKERS AND SHAREHOLDES LTD supra, has dealt with the powers of the Appellate Authorities. The division bench of the High Court after noticing the decision of the Supreme Court in NATIONAL THERMAL POWER CO. LTD vs. CIT, 299 ITR 383 (SC) has held that in the aforesaid decision the Supreme Court has not held anything contrary to what was held in Goetze (India) Ltd. and has reaffirmed the legal position that even if the claim is not made before the Assessing Officer, it can be made before the Appellate Authorities and jurisdiction of the Appellate Authorities to entertain such a claim ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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