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TMI Blog2023 (7) TMI 858X X X X Extracts X X X X X X X X Extracts X X X X ..... n under section 10B in respect of two 100 per cent Export Oriented Undertakings, however, all necessary facts for claiming deduction under section 10B were already on record, Commissioner (Appeals) in exercise of his plenary/co-terminus powers, as well as Tribunal, ought to have entertained claim. In the case of B. G. Shirke Construction Technology (P.) Ltd [ 2017 (3) TMI 879 - BOMBAY HIGH COURT] has held that an assessee is entitled to make a claim before Tribunal which was not raised before Assessing Officer at time of filing return of income or by filing a revised return of income. Accordingly, in light of the above judicial precedents on the subject and the facts of assessee s case, we are of the considered view that the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were on record. The learned CIT AY's action being erroneous on facts and in law, the appellant prays that the ACIT, Cirde-1, Rajkot be directed to allow enhanced claim of deduction of Rs 22,50,000 3. On the facts and in the circumstances of the case, in rejecting the appellant's plea for modification of claim for enhanced deduction u/s 36(1)(vi), the learned CIT(Appeal) has failed to appreciate that 3.1 Admission of modification of claim falls within the exception mentioned in Rule 46A(1) as also within discretionary powers of CIT(A) u/s 250 of the T Act and Rule 46A(4) of 1. T. Rules. In wake of specific prayer made by the appellant for allowing modification in deduction claim u/s 35(1)(viii), in the interest of justice, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee is allowed as deduction from the income, subject to certain conditions. In assessee s case, 20% of profits from eligible business worked out to ₹ 7.27 crores and amount carried to special was ₹ 2,62,50,000/-. However, in the return of income, the assessee had claimed deduction of ₹ 2,40,00,000/- u/s 36(1)(viii) of the Act, which was sought to be revised vide letter dated 07-10-2016, addressed to the assessing officer, during the course of assessment proceedings. However, the assessing officer did not allow the above claim of the assessee, during the course of assessment proceedings. 4. In appeal, Ld. CIT(Appeals) dismissed the appeal of the assessee with the following observations: The ground of appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the revised return of Income The Honable court has distinguished the National Thermal Power Co. Ltd. vs CIT(229 ITR 383) cited by the assessee, The Ground of appeal is therefore rejected. 5. The assessee is in appeal before us against the aforesaid order passed by Ld. CIT(Appeals). The counsel for the assessee submitted that in the instant facts Ld. CIT(Appeals) has not challenged the veracity of the claim made by the assessee, however, the only reason why this additional claim amounting to ₹ 22.5 lakhs was not allowed was on the basis that this claim should have been made by way of filing of revised return of income, and not by way of additional claim during the course of assessment proceedings. In response, the Ld. DR placed r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able even when same is not claimed in original return of income nor assessee has filed revised return of income to make such claim. The Bombay High Court in the case of B. G. Shirke Construction Technology (P.) Ltd.[2017] 79 taxmann.com 306 (Bombay) has held that an assessee is entitled to make a claim before Tribunal which was not raised before Assessing Officer at time of filing return of income or by filing a revised return of income. 7. We observe that in the instant facts, the Department has not challenged the genuineness of the claim. The only reason for disallowance is that claim can be admitted only if it is by way of filing of revised return of income. Accordingly, in light of the above judicial precedents on the subject and t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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