JAIPUR JEWELLERY SHOW,JAIPUR vs. ACIT-DCIT CIRCLE (EXEMP.), JAIPUR, JAIPUR

1 ITA NO. 164/JP/2024 JAIPUR JEWELLERY SHOW VS ACIT , CIRCLE (EXEMPTION), JAIPUR आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”SMC’’ JAIPUR Jh lanhi xkslkbZ] U;kf;d lnL; ds le{k BEFORE: Hon’ble SHRI SANDEEP GOSAIN, JUDICIAL MEMBER vk;dj vihy la-@ITA No. 164/JP/2024 fu/kZkj.k o"kZ@Assessment Year : 2012-13 M/s. Jaipur Jewellery Show cuke The ACIT Vs. TF-01, Gold Souk, Jagatpura Road (Exemption) Near Jawahar Circle, Jaipur Jaipur LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AAAAJ 2064 N vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@Assessee by : Shri Rajeev Sogani, CA Ms. Ruchika Sogani, Adv. jktLo dh vksj ls@Revenue by: Shri Rajesh Kumar Meena, Addl. CIT-DR lquokbZ dh rkjh[k@Date of Hearing : 28/05/2024 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 10/06/2024 vkns'k@ORDER PER: SANDEEP GOSAIN, JM This appeal filed by the assessee is directed against order of the ld. Addl. CIT(A)-4, Chennai dated 01-01-2024 for the assessment year 2012-13 raising therein following the grounds. ‘’1. In the facts and circumstances of the case and in law, the ld. ADDL/JCIT (A)- 4 CHENNAI has erred in confirming the action of Id. AO in denying the claim of exemption under section 11 of the Income Tax Act, 1961 for the alleged reason that no claim was made by the Assessee in its regular Income Tax Return. The action of ld.

2 ITA NO. 164/JP/2024 JAIPUR JEWELLERY SHOW VS ACIT ,CIRCLE (EXEMPTION), JAIPUR ADDL/JCIT (A) is illegal, unjustified, arbitrary and against the facts of the case. Relief may please be granted by allowing the claim of the Assessee under section 11 of the Income Tax Act, 1961.

2.1 Apropos Ground No. 1 to 4 of the assessee, the facts as emerges from the order of the Addl. ld. CIT(A) are that wherein he has dismissed the appeal of the assessee by observing as under:- ‘’4.1 The Appellant who is registered as a charitable organisation having obtained registration u/s. 12AA and 80G, had filed a return of income for the AY 2012-13 on 15/09/2021

3 ITA NO. 164/JP/2024 JAIPUR JEWELLERY SHOW VS ACIT ,CIRCLE (EXEMPTION), JAIPUR admitting a taxable income of Rs.26,43,910/-. Though the Trust under the normal circumstances is eligible for exemption u/s.11, it had voluntarily opted to remain outside the scope of exemption, as it was found that proviso to S.2(15) gets applied in the fact situation of the present case and hence as per S.13(8) the surplus of Rs.26,43,910/- was offered to tax. The return of income was taken up for scrutiny and the order u/s.143(3) was passed on 16/03/2015 arriving at a assessed income of Rs 28,37,260 /-after making an addition of Rs. 1,93,350/-. The addition as on account of mismatch in the quantum of gross receipts as per ITR vis-à-vis the quantum reflected in form no.26AS. 4.2 As stated earlier, though the exemption u/s.11 was voluntarily withdrawn, the appellant has fostered grounds of appeal and statement of facts that the income to be determined for the year under consideration is Rs.Nil & therefore, contested the entire income assessed in the order u/s.143(3) which included the quantum of returned income together with the additions made in the said order. In order to ascertain the correctness of the claim of blanket exemption u/s. 11, notice u/s 250 was issued on 01/12/2023 which was responded on 9/12/2023. The written submission and other material brought on record were carefully considered. 4.3 On the aspect of the deviation in the claim of exemption u/s. 11, the appellant had relied on the decision of the Hon'ble Supreme Court in the case of ACIT (Exemptions) vs. Ahmedabad Urban Development Authority dated 19/10/2022 to drive the point that irrespective of the charitable activity being and advancement of object of general public utility, while the profit margin is meagre, the claim of exemption ought to be extended. 4.4 It is evident that the appellant had failed to comprehend the contents and principle laid down by the Apex Court in the case of AUDA (supra). The Court had categorically said that when the Trust belongs to the last limb of charity, defined u / s * 0.2(15) being AGPU, it is eligible for exemption only when the

4 ITA NO. 164/JP/2024 JAIPUR JEWELLERY SHOW VS ACIT ,CIRCLE (EXEMPTION), JAIPUR receipts do not exceed the limit expressed in proviso to S * 0.2(15) A Trust with AGPU objects, according to the Court can enjoy the benefit of exemption u/s. 11, provided there is a marginal mark up over the cost to derive the profit and if the gross receipts from such business activity do not exceed 20% of the overall receipts. In the case under consideration, while the condition of marginal mark up over the cost is satisfied, the second condition that the business receipts do not exceed 20% of the gross receipts is not complied. Therefore, the provisions of S. 13(8) gets a attracted and therefore, the AO is found to be correct in denying exemption u/s. 11. 4.5 It is clear that the appellant was aware about its disentitlement in claim of exemption u/s.11 and thus had volunteered to admit the surplus of income over expenditure as the taxable income in the ITR filed. Assuming, but not accepting, that the appellant is eligible for the claim of exemption u/s.11, the appropriate forum and provision of law ought to have been u/s.264 and not before the Assessing Officer or u/s.246. Therefore, the undersigned is discomfited to interfere with the contention of the Assessing Officer and thus the disentitlement of claim of exemption u/s.11 is upheld on yet another count. Accordingly, the corresponding grounds of the Appellant is dismissed. 4.6 With regard to the addition of Rs.1,93,350/-, the appellant had only stated that the addition is unwarranted, but the reason and basis to counter the finding of the AO has not been provided. The appellant further stated that the addition gets subsumed into the claim of exemption u/s.11 and hence, even if the addition were sustained, the same would not result in any additional tax liability. Since, the Appellant has not illustrated that the position taken by the AO is devoid of merits and while the difference between the quantum of income reported in ITR vis-à-vis the quantum reported in 26AS, has not been addressed to substantiate that there is no mistake in the said finding of the AO, the addition made of Rs.1,93,350/- is upheld. Further, since the claim of exemption u/s 11 is found to be incorrect, the addition made is also ineligible for exemption u/s 11 and hence

5 ITA NO. 164/JP/2024 JAIPUR JEWELLERY SHOW VS ACIT ,CIRCLE (EXEMPTION), JAIPUR the income computation and tax liability as cast by the AO is upheld. The corresponding grounds of the Appellant is dismissed. 5. Conclusion: In the result, the appeal of the Appellant is DISMISSED.’’ 2.2. The Bench noted that the Ground No. 1 & 3 are interconnected and relates to not allowing fresh claim made by the assessee for the first time before the assessee before the Revenue Authorities. The Bench feels to decide both the grounds through a common order. Brier facts of the case are that the assessee is a non-profit organization which is engaged in the promotion of Gem and Jewellery trade. The assessee conducts trade show which are organized at Jaipur in the month of December every year and it is participated by National and International exhibitors. Booth rentals in the trade show are main receipts of the assessee. It is also mentioned that according to the record the assessee was incorporated under the Rajasthan Non-Trading Companies Act, 1960 on 10th August, 2004 and it has been granted approval u/s 12AA vide CIT letter No. CIT/T&J/Sec 12A(a)/1146 dated 08-07-2005. In this case, it is noted that in the return filed the exemption u/s 11 was not claimed by the assessee due to misconceived notion of applicability of provision to Section 2(115) of the Act. It is noted that during the course of assessment proceedings, the assessee made a request to grant exemption u/s 11 of the entire surplus even if the same was not claimed in the return of income and

6 ITA NO. 164/JP/2024 JAIPUR JEWELLERY SHOW VS ACIT ,CIRCLE (EXEMPTION), JAIPUR thus the same is not allowable as a fresh claim. Apart from this, the ld. CIT(A) expressed his view that proper course would have been for the assesee to file revision petition u/s 264 of the Act and accordingly dismissed the appeal. 2.3 During the course of hearing, the ld .AR of the assessee submitted that the ld CIT(A) is not justified in dismissing the appeal of the assessee and filed the written submission in the case of the assessee. 2.4 On the contrary, the ld. DR supported the order of the ld.CIT(A) 2.5 The Bench has heard the rival parties and perused the materials available on record. The Bench after having evaluated the facts of the case and legal proposition as applicable in the present case is of the view that tax proceedings before the Revenue Authorities and also before ITAT are proceedings to determine the correct tax recoverable from the assessee and the tax proceedings before all the three forums are not adversarial proceedings and therefore, cannot be equated with civil litigation. It is noted that these proceedings are not litigation between two rival parties. Therefore, for these reasons a fresh claim can always be made by the assessee before any of three forums at any stage even if the said claim is not made in the return of income filed by the assessee but the assessee otherwise is lawfully eligible for the same. For these propositions, the Bench relies upon the following case laws. High Court

7 ITA NO. 164/JP/2024 JAIPUR JEWELLERY SHOW VS ACIT ,CIRCLE (EXEMPTION), JAIPUR

i. Hon’ble Madras High Court in the case of CIT v. Indian Express (Madurai) (P.) Ltd. [1983] 13 taxman 441 (Mad.), has held as under:

“22. Quite apart from precedents, it seems to us quite in the fitness of things to invest the Tribunal with the plenary jurisdiction in matters of assessment. As we earlier observed, the Tribunal was created in 1941 as an independent, non- departmental body, in whose hand the Legislature intended to entrust the task of reviewing assessments made under the Act. Under the scheme of the Act, which gives only the High Courts and the Supreme Court the power of interference on questions of law, the Tribunal is constituted the final authority on facts and the penultimate authority on law touching the assessment and other proceedings under the Act. The primary purpose of the statute is to levy and collect the Income-tax. This is based on the cardinal principle, which has been incorporated as a veritable constitutional provision, that no tax can be levied or collected save under authority of law. The task of an appellate authority under the taxing statute, especially a non-departmental authority like the Tribunal, is to address its mind to the factual and legal basis of an assessment for the purpose of properly adjusting the taxpayer's liability to make it accord with the legal provisions governing his assessment. Since the be-all and end-all of the statutory provisions, especially those relating to the administration and management of income-tax, is to ascertain the taxpayer's liability correctly, to the last pie, if it were possible, the various provisions relating to appeal, second appeal, reference and the like can hardly be equated to a lis or dispute as arises between the two parties in a civil litigation. Although the income-tax statute makes the department or its officers figure as parties in appeal proceedings, they are not in the strict sense what are called by American writers as parties to adversary proceedings. This is so, because the very object of the appeal is not to decide a point raised as a dispute, but any point which goes into the adjustment of the taxpayer's liability. In that sense, a view prevails, even in England, that the authorities sitting in appeal in a tax case, cannot be regarded as deciding a lis, but they are only engaged in an administrative act of adjusting the taxpayer's liability. Under our fiscal jurisprudence, we may regard the appellate authorities as exercising quasi-judicial functions in the same sense as a taxing officer does. But, even so, the proceedings before them lack the basic elements of adversary proceedings. It, therefore, follows that the discussion and the scope of the appellate jurisdiction of the Tribunal and other authorities under the tax code cannot be pursued by drawing a parallel to civil litigation with particular reference to appeals from decrees, and the like. The insistence on one party to the appeal being entitled to the fruits of finality, as it is called, and the

8 ITA NO. 164/JP/2024 JAIPUR JEWELLERY SHOW VS ACIT ,CIRCLE (EXEMPTION), JAIPUR appellate authority being con-find to the subject-matter of the appeal, are all ideas which might have relevance if the discussion centres on purely civil litigation and such like adversary proceedings as in an industrial dispute. But in a case where the revenue is all the while a party, in a manner of speaking and is also at the same time, an authority vested with the responsibilities of drawing up the assessment and laying down the correct liability, it would not be in accord with the scheme of the Act to impose restrictions on the ambit and the power of the Tribunal by such like notions as finality, subject-matter of the appeal and the like. The statutory provision in section 33(4) of the 1922 Act and section 254 of the 1961 Act which confers appellate jurisdiction on the Tribunal clearly lays down that the Tribunal, in disposing of an appeal, may pass such orders thereon as it thinks fit. Excepting that the expression 'subject- matter' has taken the fancy of many learned and eminent judges, that is an expression which is not employed by the provision conferring the jurisdiction in the Tribunal. Indeed, in Mahalakshmi Textile Mills' case (supra) in one of the passages to which we have made reference, the Supreme Court has understood the Tribunal's appellate jurisdiction as jurisdiction to pass 'such orders on the appeal as it thinks fit', without adding any gloss of their own to the expression. In Nelliappan's case (supra), as well as Mahalakshmi Textile Milts' case (supra ), the Supreme Court had even used phrases which are reminiscent of the language which English judges have used while describing a tax appeal. The Supreme Court observed that the Tribunal is not precluded from 'adjusting' the tax liabilities of the assessee in the light of its findings merely because the findings are inconsistent with the case pleaded by the assessee. English judges have regarded a tax appeal, not as a lis, but as a process of further adjustment of taxpayer liability - vide Lord Hewart in Rex v. Special CIT [1935] 20 TC 381 (CA); Greer L.J. in IRC v. Sneath [1932] 17 TC 149 (CA); Romer L.J. in the same case, Sneath ( supra) and Lord Wright M.R. in Rex's case (supra).”

ii. CIT v. Abhinitha Foundation Pvt. Ltd. [2017] 396 ITR 251 (Mad.) “if a claim made by the assessee does not form part of the original return or even the revised return, it could still be considered, if, the relevant material was available on record, either by the appellate authorities, (which includes both the Commissioner (Appeals) and the Tribunal) by themselves, or on remand, by the Assessing Officer. The failure to advert to the claim in the original return or the revised return cannot denude the appellate authorities of their power to consider the claim, if, the relevant material is available on record and the claim is otherwise tenable in law.” iii. Commissioner of Income-tax, Delhi-IIv.Jai Parabolic Springs Ltd [2008] 172 TAXMAN 258/ 306 ITR 42 (DELHI)

9 ITA NO. 164/JP/2024 JAIPUR JEWELLERY SHOW VS ACIT ,CIRCLE (EXEMPTION), JAIPUR “16. In the case of Jute Corporation of India Ltd. v. CIT [1991] 187 ITR 6882 while dealing with the powers of the Appellate Assistant Commissioner, the Supreme Court observed that :— ‘...An appellate authority has all the powers which the original authority may have in deciding the question before it subject to the restrictions or limitations, if any, prescribed by the statutory provisions. In the absence of any statutory provision, the appellate authority is vested with all the plenary powers which the subordinate authority may have in the matter. There is no good reason to justify curtailment of the power of the Appellate Assistant Commissioner in entertaining an additional ground raised by the assessee in seeking modifica- tion of the order of assessment passed by the Income-tax Officer. This Court further observed that there may be several factors justifying the raising of a new plea in an appeal and each case has to be considered on its own facts. The Appellate Assistant Commissioner must be satisfied that the ground raised was bona fide and that the same could not have been raised earlier for good reasons, The Appellate Assistant Commissioner should exercise his discretion in permitting or not permitting the assessee to raise an additional ground in accordance with law and reason. The same observations would apply to appeals before the Tribunal also." (p. 386) 17. In Goetze (India) Ltd. v. CIT [2006] 284 ITR 3231 (SC), wherein deduction claimed by way of a letter before Assessing Officer, was disallowed on the ground that there was no provision under the Act to make amendment in the return without filing a revised return. Appeal to the Supreme Court, as the decision was upheld by the Tribunal and the High Court, was dismissed making clear that the decision was limited to the power of assessing authority to entertain claim for deduction otherwise than by revised return, and did not impinge on the power of Tribunal.” iv. Taylor Instrument Co. (India) Ltd.v.Commissioner of Income-tax, [1992] 64 Taxman 129 (Delhi) “23. The Supreme Court in Jute Corporation of India's case (supra), specifically approved the decision of the Calcutta High Court in Rai Kumar Srimal v. CIT [1976] 102 ITR 525, wherein it had been held that the AAC was entitled to admit new ground or evidence either suo motu or at the invitation of the parties.” v. Sesa Goa Ltd.v.Additional Commissioner of Income-tax, Panaji, Goa, [2020] 117 taxmann.com 548 (Bombay)

10 ITA NO. 164/JP/2024 JAIPUR JEWELLERY SHOW VS ACIT ,CIRCLE (EXEMPTION), JAIPUR “15. The circumstance that we have observed that the Appellate Authorities have the power to consider the claim for deduction in terms of section 10B of the IT Act, is not to be construed as some observations in the context of the provisions of section 80A(5) of the IT Act. All that we have said is that generally, the Appellate Authorities may not be justified in refusing to even consider the assessee's claim for deduction on the ground that such claim was not made in the original returns or the revised returns filed before the Assessing Officer. If any contention based upon the provisions of section 80A(5) of the IT Act is raised by the Revenue, then, obviously, such contention will have to be considered by the Appellate Authority in accordance with law. Further the appellant-assessee will have the liberty to meet such contentions, including by way of urging the very grounds raised in the present Appeal on the aspect of prospectively etc. We, therefore, clarify that we leave all such issues open for the decision of the Commissioner of Income-tax (Appeals) and thereafter, if the need be, the ITAT.” ITAT vi. Suzlon Energy Ltd. vs. ACIT [2017] 81 taxmann.com 190 (Ahmedabad - Trib.) “26. In ground no. 4, the Assessing Officer has raised the following grievance: The ld. Commissioner of Income-tax (A)-XIV, Ahmedabad has erred in law and on facts to direct the Assessing Officer to grant tax credit of Rs. 1,62,26,344/- & 1,05,43,697/- (in respect of royalty income) not claimed in the original return of income nor claimed through revised return of income in contradiction to Apex Court decision in the case of Goetze (India) Ltd. v. CIT [2006] 284 ITR 323/157 Taxman 1. 27. There are two aspects of this grievance of the Assessing Officer-whether, in principle, the assessee can only make a fresh claim only by revising, under section 139(5), the income tax return and, as such, the claim should be rejected, at the threshold, for this reason alone; and, second-whether, on the facts and in the circumstances of this case, the directions for grant of tax credit were incorrect. 28. As for the first aspect, the legal position is fairly well settled now, and we also have the benefit of guidance from Hon'ble jurisdictional High Court on this issue. In the case of PCIT v. UTI Bank Ltd. (TA Nos. 382 to 384 of 2016; dated 13th June 2016), Their Lordships were, inter alia, dealing with the following question: "[C] Whether the Appellate Tribunal has erred in not appreciating the fact the assessee can only make a new claim which has not been made in the original return, by way of filing a revised return under section 139(5) of the Act only, as held by Hon'ble Supreme Court in the case of Goetze India Ltd. v. CIT [(2006) 284 ITR 323 (SC)]"

11 ITA NO. 164/JP/2024 JAIPUR JEWELLERY SHOW VS ACIT ,CIRCLE (EXEMPTION), JAIPUR 29. Dealing with the above question, Their Lordships of Hon'ble jurisdictional High Court had, inter alia, referred to an earlier decision of Hon'ble jurisdictional High Court in the case of CIT v. Mitesh Impex [2014] 225 Taxman 168 (Mag.)/46 taxmann.com 30 (Guj.) and decided this issue in favour of the assessee. In the case of Mitesh Impex (supra), Their Lordships had made the following important observations: 30. In what manner and to what extent, a ground, a legal contention or a fresh claim can be made at an appellate stage are vexed questions and have occupied the minds of the Courts in numerous occasions. 31. In the case of Jute Corporation of India Ltd. v. Commissioner of Income- tax and another reported in 187 ITR 688 the Supreme Court noted with approval observation of the Court in the case of CIT v. Kanpur Coal Syndicate reported in [1964] 53 ITR 225 (SC) to the effect that " The Appellate Assistant Commissioner, therefore, has plenary powers in disposing of appeal. The scope of his power is co-terminus with that of the Income Tax Officer. He can do what the Income Tax Officer can do and also direct him to do what he has failed to do." It was observed that there was no reason why the appellate authority cannot modify the assessment order on an additional ground even if not raised before the Income Tax Officer. The Act does not place any restriction or limitation on the exercise of appellate power. It was observed that:- "The above observations are squarely applicable to the interpretation of s. 25 1(1) (a) of the Act. The declaration of law is clear that the power of the Appellate Assistant Commissioner is co-terminus with that of the Income Tax Officer, if that he so, there appears to be no reason as to why the appellate authority cannot modify the assessment order on an additional ground even if not raised before the Income Tax Officer. No exception could be taken to this view as the Act does not place any restriction or limitation on the exercise of appellate power. Even otherwise an Appellate Authority while hearing appeal against the order of a subordinate authority has all the powers which the original authority may have in deciding the question before it subject to the restrictions or limitations if any prescribed by the statutory provisions. In the absence of any statutory provision the Appellate Authority is vested with all the plenary powers which the subordinate authority may have in the matter. There appears to be no good reason and none was placed before us to justify curtailment of the power of the Appellate Assistant Commissioner in entertaining an additional ground raised by the assessee in seeking modification of the order of assessment passed by the Income Tax Officer." 32. In case of National Thermal Power Co. Ltd. v. Commissioner of Income-tax reported in (1998) 229 ITR 383 (S.C.) when the question of law was raised for the first time before the Tribunal though facts were already on record, the

12 ITA NO. 164/JP/2024 JAIPUR JEWELLERY SHOW VS ACIT ,CIRCLE (EXEMPTION), JAIPUR Supreme Court observed that there is no reason why the assessee should be prevented from raising such a question before the Tribunal for the first time so long as the relevant facts are on record in respect of the item concerned. There is no reason to restrict the power of the Tribunal in such appeal only to decide the grounds which arise from the order of Commissioner (Appeals). The Tribunal should not be prevented from considering the questions of law arising in assessment proceedings although not raised earlier. 33. In case of Goetze (India) Ltd. v. Commissioner of Income-tax (supra) the Supreme Court distinguished the judgment in the case of National Thermal Power Co. Ltd.v. Commissioner of Income-tax (supra) on the ground that the same pertained to the power of the Tribunal under section 254 of the Act to entertain a point of law for the first time and commented that such decision does not relate to the power of the assessing officer to entertain a claim for deduction otherwise than by filing a revised return. In the process the Supreme Court recognized that a new claim could not be entertained by the assessing officer without the assessee revising the return. While doing so it was clarified that:- "4. . . . However, we make it clear that the issue in this case is limited to the power of the assessing authority and does not impinge on the power of the Income-tax Appellate Tribunal under section 254 of the Income-tax Act, 1961. There shall be no order as to costs." 34. In the case of Commissioner of Income-tax v. Jai Parabolic Springs Ltd. reported in (2008) 306 ITR 42 (Delhi), the Delhi High Court held that there is no prohibition on the powers of the Tribunal to entertain an additional ground which according to the Tribunal arose in the matter and for just decision of the case. 35. In case of Commissioner of Income-tax v. Pruthvi Brokers and Shareholders P. Ltd. reported in [2012] 349 ITR 336 (Bom.) the Bombay High Court considered the issue at considerable length and held that Commissioner (Appeals) as well as the Tribunal have the jurisdiction to consider the additional claim and not merely additional legal submissions. The appellate authorities have discretion to permit such additional claims. Such claims need not be those which became available on account of change of circumstances of law but which were even available when the return was filed. 36. The Delhi High Court once again in recent judgment in the case of Commissioner of Income-tax v. Sam Global Securities Ltd. reported in [2014] 360 ITR 682 (Delhi) observed that the Courts have taken a pragmatic view and not a technical one as to what is required to be determined in taxable income. In that sense assessment proceedings are not adversarial in nature. With these observations Court confirmed the view of the Tribunal reversing the decision of

13 ITA NO. 164/JP/2024 JAIPUR JEWELLERY SHOW VS ACIT ,CIRCLE (EXEMPTION), JAIPUR the assessing officer rejecting the claim of the assessee on the ground that no revised return was filed. 37. In case of Commissioner of Income-tax, Gujarat-I v. Cellulose Products of India Ltd. reported in [1985] 151 ITR 499, full Bench of this Court held that merely because a ground has not been raised though it could have been raised in support of the relief sought in the appeal, it cannot be said that such ground cannot be raised before the Tribunal. Such ground can be raised provided it falls within the contours of the subject matter of the appeal. 38. It thus becomes clear that the decision of the Supreme Court in the case of Goetze (India) Ltd. v. Commissioner of Income-tax (supra) is confined to the powers of the assessing officer and accepting a claim without revised return. This is what Supreme Court observed in the said judgment while distinguishing the judgment in the case of National Thermal Power Co. Ltd. v. Commissioner of Income-tax(supra) and that is how various High Courts have viewed the dictum of the decision in the case of Goetze (India) Ltd. v. Commissioner of Income- tax (supra). When it comes to the power of Appellate Commissioner or the Tribunal, the Courts have recognized their jurisdiction to entertain a new ground or a legal contention. A ground would have a reference to an argument touching a question of fact or a question of law or mixed question of law or facts. A legal contention would ordinarily be a pure question of law without raising any dispute about the facts. Not only such additional ground or contention, the Courts have also, as noted above, recognized the powers of the Appellate Commissioner and the Tribunal to entertain a new claim for the first time though not made before the assessing officer. Income Tax proceedings are not strictly speaking adversarial in nature and the intention of the Revenue would be to tax real income. 39. This is primarily on the premise that if a claim though available in law is not made either inadvertently or on account of erroneous belief of complex legal position, such claim cannot be shut out for all times to come-merely because it is raised for the first time before the appellate authority without resorting to revising the return before the assessing officer. 40. Therefore, any ground, legal contention or even a claim would be permissible to be raised for the first time before the appellate authority or the Tribunal when facts necessary to examine such ground, contention or claim are already on record. In such a case the situation would be akin to allowing a pure question of law to be raised at any stage of the proceedings. This is precisely what has happened in the present case.' 30. Clearly, therefore, the powers of the appellate authorities are not fettered by Honble Supreme Courts decision in the case of Goetze India Ltd. (supra). There is no infirmity in the order of the learned CIT (A) on this aspect of the

14 ITA NO. 164/JP/2024 JAIPUR JEWELLERY SHOW VS ACIT ,CIRCLE (EXEMPTION), JAIPUR matter, and, therefore, grievance of the Assessing Officer, to that extent, must stand rejected.” vii. Ajay Sharma v. JCIT in I.T.A. Nos. 118 to 121/Asr/2022 “We respectfully consider the order of Goetz India Ltd, supra. The catena of judgments is produced by the ld. Council before the Bench. The orders of the Hon’ble Delhi High Court & Hon’ble High Court of Bombay respectfully observed the order of Hon’ble Apex Court. Here, two issues are formulated, weather the unclaimed deduction can be claim before the assessing authority without filing the revised return and weather the power of the appellate authority can allow the claim of duction which was not claimed in the return of income. We adjudicate the second issue. In our opinion the appellate authority has coterminous power to accept the deduction which was not claimed in ITR. So, the entire claim under section 80C is eligible claim of deduction. During the hearing the assessee had submitted all relevant documents which are also considered by the appellate authority. We accept the claim of assessee related to deduction U/s 80C. We set aside the order of the ld CIT(A) with a direction to allow the deduction, claimed by the assessee.”

Considering the above proposition and also the facts of the case, the Bench is of the view that the ld. CIT(A) has erred in not entertaining the claim even if raised by the assessee for the first time. Hence, the matter is set aside to the file of the ld CIT(A) for afresh adjudication but by providing adequate opportunity of being heard to the assessee. Thus the Ground No. 1 & 3 of the assessee are allowed for afresh adjudication. Since the Ground No. 1 & 3 are restored for afresh adjudication by the ld. CIT(A), therefore Ground No. 2 & 4 are also restored back to the ld CIT(A) for afresh adjudication in view of the above deliberation. 2.3 Before parting, the Bench makes it clear that its decision to restore the matter back to the file of the ld. CIT(A) shall in no way be construed as having

15 ITA NO. 164/JP/2024 JAIPUR JEWELLERY SHOW VS ACIT ,CIRCLE (EXEMPTION), JAIPUR any reflection or expression on the merits of the dispute, which shall be adjudicated by ld. CIT(A) independently in accordance with law. 3.0 In the result, the appeal of the assesee is allowed for statistical purposes

Order pronounced in the open court on 10 /06/2024. Sd/- ¼lanhi xkslkbZ½ (Sandeep Gosain) U;kf;d lnL;@Judicial Member Tk;iqj@Jaipur fnukad@Dated:- 10 /06/2024 *Mishra आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. The Appellant- M/s. Jaipur Jewellery Show, Jaipur 2. izR;FkhZ@ The Respondent- The ACIT, Circle (Exemption) Jaipur 3. vk;dj vk;qDr@ The ld CIT 4. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत 5. xkMZ QkbZy@ Guard File (ITA No. 164/JP/2024) vkns'kkuqlkj@ By order,

सहायक पंजीकार@Aेेजज. त्महपेजतंत