9911796707
TMI Blog2023 (8) TMI 1278X X X X Extracts X X X X X X X X Extracts X X X X ..... uring the year, but not claimed by the assessee in the return of income - CIT(A) allowed the assessee to raise this contention before him on the ground that the appellate authority including CIT(A) have full power / authority to entertain such claim in appeal and accordingly, permitted the assessee to raise such claim before him - HELD THAT:- We observe that the same are infructuous since the Ld. CIT(A) has permitted the assessee to raise such claim regarding allowability of customs duty paid under protest during the course of appellate proceedings. Accordingly, Ground Nos. 2 3 of the assessee s appeal are dismissed as being infructuous. Additional claim towards payment of customs duty - As we observe that Ld. CIT(A) in his order has observ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid under protest made during course of assessment proceedings duly examined by the A.O. without properly appreciating the facts of the assessee. 2. He has erred in law and fact in not considering and appreciating the fact that A.O. has did not allow the claim in the absence of revised return of income following the decision of The Supreme Court in the case of Goetze (India) Limited. 3. He has erred in law and facts in not allowing claim of assessee for Rs 1,53,45,844/- in as much as that such fresh claim can be allowed by the higher authorities as held by the Court distinguishing decision in the case of Goetze (India) Limited. 4. On the facts of the assessee, the claim of Rs 1,53,45,844/- ought to have been allowed. 5. The appellan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Assessing Officer as there is no provision under the Income Tax Act to make amendment in the return without filing a revised return. Consequently, the Assessing Officer held that deduction on account of customs duty paid under protest amounting to Rs. 1,53,45,844/- cannot be allowed. 5. In appeal, Ld. CIT(A) allowed the assessee to raise this contention before him on the ground that the appellate authority including CIT(A) have full power / authority to entertain such claim in appeal and accordingly, permitted the assessee to raise such claim before him. However, on merits, the CIT(A) observed that as per the order passed by Deputy Commissioner of Customs dated 28.02.2018, the assessee was not under any obligation to pay this additional ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bills of Entry." In view of legal order issued by department of customs (supra) as on this date, the appellant was not required to pay the custom duty under reference. As a corollary to this order by the superior authority of custom department, the appellant might already have put up its claim for refund of the amount which was paid under protest. Also, it can be concluded that the appellant was not legally obliged to pay any such duty, therefore, though the fresh claim has been admitted but rejected as the payment is not falling strictly under the provision of section 43B(a). It is unknown liability which is neither contractual liability nor statutory liability, therefore, in my opinion it is not allowable in the year of payment as it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore us, there has been no appearance on part of the assessee despite a large number of opportunities for hearing presented to the assessee to cause appearance. Accordingly, we shall proceed to pass the order on the basis of material before us. So far as Ground 2 & 3 of the assessee's appeal are concerned, we observe that the same are infructuous since the Ld. CIT(A) has permitted the assessee to raise such claim regarding allowability of customs duty paid under protest amounting to Rs. 1,53,45,844/- during the course of appellate proceedings. Accordingly, Ground Nos. 2 & 3 of the assessee's appeal are dismissed as being infructuous. 7. Now coming Ground No. 1 and 4 of the assessee's appeal, we observe that Ld. CIT(A) in his order has obs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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