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TMI Blog2024 (4) TMI 881X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee had filed an appeal against the intimation u/s. 143(1) of the Act, which has been decided vide the impugned order and the appeal of the assessee was dismissed. The assessee is in second appeal before us and the following grounds have been taken in this appeal: 1. The Ld. CIT(A) has erred in law and on facts of the case in confirming the order passed u/s. 143(1) of the Act in spite of the fact that the issue before both the lower authorities was debatable and not any mistake apparent on record or information. Hence, both the lower authorities erred in exceeding the jurisdiction in making an adjustment u/s. 143(1)(a) of the Act. 2. The Ld. CIT(A) has erred in law and on facts of the case in not granting exemption of 12,16,737/- u/s. 11 & 12 of the Act correctly, in spite of both the lower authorities knowing that the Appellant had inadvertently claimed exemption u/s. 10(23)(iv) of the Act. 3. The Ld. CIT(A) erred in law and on facts of the case in holding that remedy for the present case lies only in S.119 of the Act. The Ld. CIT(A) has failed to consider the fact that Ld. CIT(A) has the power to pass appropriate directions to correctly allow exemption u/s. 11(1) & (2) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d.AR, the remedy u/s. 119 of the Act was merely an additional remedy and this did not affect the power of the appellate authorities in entertaining the additional claim for deduction u/s. 11 of the Act as made before the Ld.JCIT(A). In this regard, reliance was placed on the decision(s) of Hon'ble Gujarat High Court in the case of Association of India Panelboard Manufacturer vs. DCIT reported at (2023) 157 taxmann.com 550 (Guj) and in the case of the PCIT vs. UTI Bank reported at 398 ITR 514 (Guj). He further submitted that Assessing Officer was duty bound to determine the 'correct income' of the assessee, as held in the case of S.R. Koshti vs. CIT reported at (2005) 276 ITR 165 (Guj). 4. The Ld.DR, on the other hand, submitted that no claim for deduction u/s. 11 of the Act was made in the return of income. The claim for deduction was made only u/s. 10(23) of the Act. As the assessee had not filed the Form 10B, the CPC had rightly disallowed the claim for deduction u/s. 10(23C) of the Act. Since no claim for deduction u/s. 11 of the Act was made in the return, the claim of the assessee could not have been entertained either by the CPC or by the Ld. JCIT(A). According to the Ld.DR, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f under this Act after expiry of the period specified by or under this Act for making such application or claim and deal with the some on merits in accordance with law." From the above, it is clear that the first appellate authorities have not been entrusted with powers of condoning delay in such cases. The intention of legislature with respect to such cases is very clear that the remedy in such situation lies in the section 119 of the Act. (c) For making the claim of exemption u/s 11, the appellant was either required to file the Revised return or if time for revision is not available, make a claim before the competent authority (Pr. CIT) for condonation of delay. In the instant case it appears that the appellant has neither revised the return nor made any application for condonation. In the statute, the Addl. CIT (Appeals) has not been empowered to condone such delay or allow any claim which is not made in the return. (d) The Hon'ble Supreme Court in the case of Goetze (India) Ltd. vs Cit (2006) 284 ITR 323 has held that the assessee can amend a return filed by it only by filing a revised return. In this case the appellant has not filed any revised return. In view of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act and requirement of law was satisfied. Thus, the facts of that case are found to be totally different from the facts of the present case. In the present case, no exemption u/s 11 of the Act was claimed in the return of income rather deduction was claimed u/s 10(23C)(iv) in the return. The audit report in Form 10B is a common audit report for deduction u/s 10(23C) and for section 12A of the Act. Hence, Form 10B was not a conclusive proof for deduction u/s 11 of the Act. Therefore, the decision of Hon'ble Jurisdictional High Court cannot be imported to the facts of the present case. Further, the Hon'ble Court had observed that section u/s 119(2)(b) was only an additional remedy for the assesse which cannot be compulsorily resorted by the assesse. The assesse was allowed an opportunity in the intimation to file a rectification application, if so required, which was not availed. Accordingly, the remedy of rectification of mistake has to be availed before resorting to the alternate remedy u/s 119(2)(b), if required. 5.4. In the case of UTI Bank Ltd. (supra), the Hon'ble Jurisdictional High Court has held that any ground, legal contention or even a claim would be permissible to b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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