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TMI Blog2024 (6) TMI 806X X X X Extracts X X X X X X X X Extracts X X X X ..... e ROI was revised - assessee states that the higher taxable income has been offered by including Excise Duty subsidy as revenue income out of sheer mistake and inadvertence on the part of the assessee. HELD THAT:- It is trite that the authorities under the Act are under sacrosanct obligation to act in accordance with law. Tax can be collected only as provided under the Act. If an assessee, under a mistake, misconception or not being properly instructed, is over assessed, the authorities under the Act are required to ensure that only legitimate tax dues are collected. This is the view which flows from innumerable judgments including Shelly Products [ 2003 (5) TMI 4 - SUPREME COURT ], S. R. Koshti [ 2004 (12) TMI 62 - GUJARAT HIGH COURT ], Es ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot been verified by AO or by the CIT(A). It would thus be in fitness of things to remit the issue to the file of the AO rather than that of CIT(A) for fresh determination of correctness of claim. AO shall exclude the Excise Duty subsidy from the ambit of chargeable income in accordance with law on being satisfied with the claim of the assessee that such subsidy is to be regarded as capital in nature in the context of the case. The issue is accordingly set aside to the file of the AO for proper determination of taxability of Excise Duty subsidy in question in accordance with law after providing reasonable opportunity to Assessee in this regard. Appeal of the assessee is allowed for statistical purposes. - SHRI SAKTIJIT DEY, VICE PRESIDENT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nst the assessee as per paragraph 4.4.3 of the first appellate order. The ld. counsel submitted that the CIT(A) has rejected the contention of the assessee towards non taxability of Excise Duty subsidy solely on the ground that no claim was made before the AO at any stage that such Excise Duty subsidy is capital in nature and thus not taxable in the absence of any claim before AO, the CIT(A) held that the grievance of the assessee is not maintainable before him. The ld. counsel referred to the several judgments to submit that the tax can be collected only in accordance with law and mere inclusion of such Excise Duty subsidy as taxable income under misconception of law, by itself, will not render such incorrect classification of income as ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs nor the ROI was revised. The assessee states that the higher taxable income has been offered by including Excise Duty subsidy as revenue income out of sheer mistake and inadvertence on the part of the assessee. It is the contention of the assessee that such mistake in declaring excessive taxable income will not operate as any kind of estoppel against the assessee regardless of whether any revised return was filed or not and regardless of the fact that whether such new claim was made before the AO in the course of assessment proceedings or not. The assessee contends that once the assessee is in a position to show that it has been over-assessed under the provisions of the Act even on account of assessee s own mistake or otherwise, the Rev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of income of higher amount incorrectly. It is thus open to assessee to show that it was over assessed under erroneous impression of law or facts even if it is attributable to the mistake of assessee. 8.2 So viewed, we do see potency in the argument laid on behalf of the assessee that the CIT(A) committed error in not making enquiry into legitimacy of relief so claimed and grant him appropriate relief if found in order. In our considered view, the action of the CIT(A) is in defiance of the judicial precedents on the issue and thus cannot be countenanced. In our view, the assessee cannot be prevented from raising such additional claim before the CIT(A) merely because the ROI could not be revised or claim was not put before Assessing Office ..... X X X X Extracts X X X X X X X X Extracts X X X X
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