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TMI Blog2024 (10) TMI 694X X X X Extracts X X X X X X X X Extracts X X X X ..... 16A etc. The AO is not allowed to go beyond the above mandate given under section 143(1) of the Act. We observe from the record that the assessee has received the intimation u/s 143(1) and its case was not selected for the regular assessment and also the time for revision of return also already elapsed. The assessee finds it easy to claim the same by filing the appeal before appellate authorities. In our considered view, the assessee has filed the present appeal before us without there being any grievance in preliminary or intimation order in which the Assessing Officer accepted the return of income filed by the assessee. A Assessee may have two types of fresh claim, which may be genuine claim which is traceable from the return filed by the assessee, which can be claimed by the assessee, the other type is debatable issues which may be claimed only upon making proper verification and assessment, this will lead to discretion of the relevant authorities including the Board. The remedy for the fresh claim is not with any appellate authority and the remedy lies only with the administrative officers or with the board. In case the board rejects the application, the remedy available only i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lowed in view of the decision of Hon ble Apex Court in case of CIT vs. Excel Industries Ltd. 38 Taxman 100 (SC) when there is no dispute to the fact that there is no change in the tax rate in the year to which expense pertain and the year consideration when the expenses were incurred. 2. On the facts and in the circumstances of the case, the Ld. CIT(A) has erred in law in not allowing deduction of Rs. 81,00,000/- to that extent being the CSR expenses disallowed u/s. 37(1) of the I.T. Act but are allowable u/s. 80G of I.T. Act and such deductions cannot be denied merely because the appellant has not claimed deduction in the return of income. Such claim is allowable in view of Article 265 of Constitution. 4. At the time of hearing, Ld AR made oral as well as filed a written submissions, the same is reproduced below: Ground no 1 On deduction of the prior period expenditure of Rs. 3,98,388/- The tax audit report in para 27(b) (PB 10), shows that there is claim of prior period expenses pertaining to AY 2018-19 and the same has been suo moto add back by the appellant computing the taxable income (PB 18). This suo moto disallowance has been made by the appellant without appreciating that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no such deduction can be claimed. The above donation of Rs. 81,00,000/- included in CSR Claim was by mistake not claimed as deduction u/s 80G of IT Act while filling the return of income. The above CPC also did not allow any deduction u/s 80G being not claimed in the return of income a though the same is allowable in view of the discussion herein after. The appellant is eligible for deduction u/s 80G for the donation made to the eligible charitable societies despite the claim being not made in return of income in view of the Article 265 of the Constitution. There has been express bar in claiming the said expenses u/s. 37(1) of the Act and also on sub clause- (iiihk) and (iiihl) of section 80G(2)(a) of the Act pertaining to Swatch Bharat Kosh and Ciean Ganga Fund where donation made pursuant to CSR is not an allowable deduction. The test of voluntariness usually applied by the revenue to support the disallowance is also irrelevant in claiming deduction u/s. 80G of the Act where there is no criteria specified by the Act. Reliance is placed on the following decisions; Goldman Sachs Services Pvt. Ltd. v. JC1T (IT(TP)A No.2355/Bang/2019 First American (India) Pvt. Ltd v. ACIT (ITA No.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd or relief is due to him. This attitude would, In the long run, benefit the Department for if would Inspire confidence in him that he may be sure of getting a square deal from the Department. Although, therefore, the responsibility for claiming refunds and reliefs rests with assessees on whom it is imposed by law, officers should: (a) draw their attention to any refunds or reliefs to which they appear to be clearly entitled but which they have omitted to claim for some reason or other; (b) freely advise them when approached by them as to their rights and liabilities and as to the procedure to be adopted for claiming refunds and reliefs. In view of above binding circular of CBDT applicable, the assessee is bound to allowed if such claims are made even at the appeal stage. 5. On the other hand, Ld DR submitted that there is no grievance to the assessee as the AO accepted the return of income filed by the assessee and the issue raised by the assessee in the present appeal is not covered u/s 143(1) of the Act. He relied on the decision of Goetze (India) Ltd (supra) and decision of Hon ble High court of Bombay in the case of Ultratech Cement Ltd 408 ITR 500 (Bom). 6. Considered the ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period attached to it. The assessee can approach any time when it has genuine claim. 6.2 In our considered view, the assessee has filed the present appeal before us without there being any grievance in preliminary or intimation order in which the Assessing Officer accepted the return of income filed by the assessee. As discussed in the above para, yes, the assessee may have two types of fresh claim, which may be genuine claim which is traceable from the return filed by the assessee, which can be claimed by the assessee, the other type is debatable issues which may be claimed only upon making proper verification and assessment, this will lead to discretion of the relevant authorities including the Board. 6.3 As discussed elaborately, in our considered view, the remedy for the fresh claim is not with any appellate authority and the remedy lies only with the administrative officers or with the board. In case the board rejects the application, the remedy available only in the writ proceedings. With the above observations, we are inclined to dismiss the grounds raised by the assessee. 7. In the result, appeal filed by the assessee is dismissed. Order pronounced in the open court on this ..... X X X X Extracts X X X X X X X X Extracts X X X X
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