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TMI Blog2021 (11) TMI 569X X X X Extracts X X X X X X X X Extracts X X X X ..... ounded that the decision in that case would not impinge upon the powers upon the ITAT to consider assessee s claim otherwise than by revised return - we remit the issue to the file of the AO and AO is directed to considered the claim of the assessee and pass an order as per law, after giving the assessee proper opportunity of being heard. Assessee appeal is allowed for statistical purpose. X X X X Extracts X X X X X X X X Extracts X X X X ..... was completed u/s. 143(3) of the Act on 17.02.2016 determining the total income at ₹ 1,40,188,276/- by making assessing the income under the head LTCG of ₹ 1,14,088,276/- and STCG of ₹ 26,100,000/-. 4. Against the above order, assessee appealed before the Ld. CIT(A) raising a ground that assessee has revised the computation before the AO, who has not considered the same. The ground raised before the Ld. CIT(A), reproduced by the Ld. CIT(A) in his order reads as under:- "1. The Learned Assessing Officer erred in the facts of the case and in law in no considering the appellant's request for the revised computed of total income and thus erred in assessing the Long Term Capital at ₹ 112,457,974/- as against t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the sale of land by way of revised calculation of such long term capital gain which would result in the reduction of income shown under this head by ₹ 16,30,302/-. The A.O. as accepted the income shown by the appellant in the return of income under the heads long term capita] gain and short term capital gain and apparently, has not considered such claim of the appellant. "The appellant has made detailed submission stating that such new claim can be considered by the appellate authorities in view of the decision of the Hon'ble Bombay High Court in the case of CIT vs. Pruthvi Brokers and Shareholders Pvt. Ltd., 349 ITR 336 and other such decisions, reproduced in the submission above. In this regard, 1 find that the appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee contended that the order of assessment was not served on the appellant and, therefore, the provisions of sub clause 5 were clearly attracted in favour of the appellant. We are unable to accept the said submission when sub clause 5 has to be read in context with the other provisions of the said section. In the instant case, it is an admitted position where the appellant had not furnished the return within time allotted to him under sub-sections (1) and (2) and therefore, his case clearly falls within the provision of section 139(4). Section 139(5) merely stipulates that it is applicable to any person who has furnished the return under sub-sections (1) or (2). From the aforesaid provisions it can be seen that the Legislature in its wis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther the assessee's claim can be admitted by the revenue authorities without filing revised return or whether additional ground can be raised or not.. The decision of Hon'ble Bombay High Court in the case of CIT vs. Pruthvi Brokers and shareholders (supra) mandates that assessee's claim should be considered and the decision should be taken as per law. We further note that Hon'ble Supreme Court in the case of Goetze (India) Limited Vs. CIT (284 ITR 323) has expounded that the decision in that case would not impinge upon the powers upon the ITAT to consider assessee's claim otherwise than by revised return. In accordance with the aforesaid case laws, we remit the issue to the file of the AO and AO is directed to considered ..... X X X X Extracts X X X X X X X X Extracts X X X X
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