9911796707
Advanced Search 
TMI Blog2021 (9) TMI 419X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 80P(2)(a)(i) of the Act. The return of income filed by the assessee was processed by the Central Processing Centre (CPC), Income Tax Department, Bangalore under section 143(1) of the Act on 09-02-2012 assessing the total income of Rs. 27,29,032/-. After receiving the intimation issued under section 143(1) of the Act, assessee filed an application for rectification under section 154 of the Act seeking change of status from firm to AOP and to allow deduction under section 80P(2)(a)(i) of the Act. The assessing officer; however, rejected assessee's application. Being aggrieved, assessee filed an appeal before learned Commissioner (Appeals). Having found that the assessee had not claimed the deduction under section 80P(2)(a)(i) of the Act in the return of income, referring to section 80A(5) of the Act, learned Commissioner (Appeals) held that deduction claimed by the assessee cannot be allowed. 4. Before us, learned counsel for the assessee submitted, there is no dispute that the assessee is a co-operative society; therefore, the correct status of the assesee is of an AOP. He submitted, being a co-operative society, the assessee is also eligible for deduction Under secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A careful reading of the aforesaid provision makes it clear that unless the assessee claims the deduction allowable under section 10A, 10AA , 10B, 10BA or under any other provision in Chapter-VIA under the heading, "C.-Deductions in respect of certain incomes", no deduction shall be allowed to him. Undisputedly, section 80P comes within Chapter-VIA under the heading "C.-Deductions in respect of certain incomes". 6.2 The language used in section 80A(5) is very much clear and unambiguous. Thus, it is apparent, besides fulfilling the conditions of section 80P(2)(a)(i) of the Act, the assessee must also fulfill the condition contained in section 80A(5) of the Act. Therefore, the issue which arises for consideration is, whether the conditions of section 80A(5) is mandatory for claiming deduction under section 80P(2)(a)(i) or not. 7. At this stage, it would be relevant to observe, after the conclusion of hearing of the appeal initially on 29-06-2021, a decision of the Hon'ble jurisdictional High Court in case of EBR Enterprises vs UOI (2019) 107 taxmann.com 220 (Bombay) came to the notice of the Bench. In the interest of fair play and justice, the appeal was again fixed for hearing to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sub Section (5) of Section 80A of the Act, reads under : '80A(5) - Where the assessee fails to make a claim in his return of income for any deduction under Section 10A or Section 10AA or Section 10B or Section 10BA or under any provision of this Chapter under the heading "C.-Deduction in respect of certain incomes", no deduction shall be allowed to him thereunder'. 5. As per this provision, where the assessee fails to make a claim in his return of income for any deduction under Section 10A or Section 10AA or Section 10B or Section 10BA or under any provision of the said Chapter - VI A under the heading "C.-Deduction in respect of certain incomes", no deduction would be allowed to him under the said provision. In plain terms, this Sub Section (5) of Section 80A of the Act imposes an additional condition for claim of deduction in relation to income under any of the provisions mentioned therein. Apart from the requirement of fulfillment of individual set of respective conditions for the purpose of claiming the concerned deduction, this plenary condition requires that the claim ought to have made in the return of income by the assessee and if the assessee fails to make such ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hinks ft which is not prejudicial to the assessee. There is nothing in S. 264 which places any restriction on the CIT's revisional power to give relief to the assessee in a case where the assessee detects mistakes on account of which he was over assessed after the assessment was completed. We do not read any such embargo in the CIT's power as read by the CIT in the present case. It is open to the CIT to entertain even a new ground not urged before the lower authorities while exercising revisional powers. Therefore, though the Petitioner had not raised the grounds regarding under-totalling of purchases before the ITO, it was within the power of the CIT to admit such a ground in revision. The CIT was also not right in holding that the over-assessment did not arise from the order the assessment. Once the Petitioner was able to satisfy that there was a mistake in totaling purchases and that there was under- totalling of purchases to the tune of Rs. 20,000, it is obvious that there was over-assessment. In other words, the assessment of the total income of the assessee is not correctly made in the assessment order and it has resulted in over-assessment The CIT would not be acting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of the High Courts noted above, the CIT could entertain a fresh claim in Revision Application even if the claim was not made previously before the Assessing Officer. Provision contained in sub-section (5) of Section 80A is a statutory interdict which would prevent the CIT from granting any such claim in exercise of his revisional jurisdiction under Section 264 of the Act. As is often times stated, even High Court in exercise of Writ jurisdiction under Article 226 of the Constitution of India would not issue directions contrary to statutory provisions. Width of the powers of the CIT under Section 264 of the Act would not permit him to ignore the requirement of Section 80A(5) of the Act or allow the claim of an assessee in breach of the condition contained therein. We are therefore not in agreement that the expression given by the Income Tax Tribunal in case of Madhav Construction (supra) holding that the restriction contained in Sub Section (5) of Section 80A of the Act is to restrict the power of Assessing Officer and not higher Income Tax Authorities. 10. The Petitioners having given up the challenge to the constitutionality of the retrospectivity to Section 80A (5) of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
