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Income Tax Appellate Tribunal, PUNE BENCH “A”, PUNE
Before: SHRI R.S. SYAL & SHRI PARTHA SARATHI CHAUDHURY
PER R.S.SYAL, VP : This appeal by the assessee is directed against the order dated 15-05-2017 passed by the Commissioner of Income-tax (Appeals)- 2, Pune in relation to the assessment year 2012-13. 2. The only issue raised in this appeal is against not allowing clam of depreciation on Government Securities at Rs.60,00,000/- which was not raised at the time of filing income-tax return. 3. Briefly stated, the facts of the case are that the assessee is a Cooperative society. The return was filed declaring total income of
Ahmednagar Dist. Central Co.op Bank Ltd., Rs.30.91 crore. The assessment was completed at Rs.31.00 crore.
In the first appeal, the assessee took a plea that it ought to have been allowed depreciation on Government Securities at Rs.60.00 lakhs. The ld. CIT(A) rejected the assessee’s claim on the ground that this issue did not arose from the order of the AO. For doing so, he relied on the judgment of Hon’ble Supreme Court in the case of Goetz (India) Ltd. Vs. CIT (2006) 284 ITR 323 (SC).
We have heard both the sides and gone through the relevant material on record. It is an undisputed fact that the assessee did not take up a plea of depreciation on Government Securities at Rs.60.00 lakhs before the AO and the same also did not form part of its income-tax return. Simply because a claim which is otherwise valid but not taken up in the return of income, cannot be negatived simply on the score that it was not earlier. Be that as it may, even though the judgment in Goetze (supra) provides that the AO has no power to entertain claim made otherwise than by way of a revised return, it categorically provides: `that the issue in this case is limited to the power of the assessing authority and does not impinge on the power of the Tribunal under s. 254 of the IT Act, 1961’. Thus it is evident, that there is no such constraint on the Ahmednagar Dist. Central Co.op Bank Ltd., power of the Tribunal and it can grant rightful relief on a point for which no claim was made in the return of income. In view of the fact that the claim of the assessee in this regard has not been examined by the authorities below, we consider it fit to set-aside the impugned order and remit the matter to the file of the AO for examining the assessee’s claim on merits as per law. If the claim is found to be sustainable, then the same should be allowed notwithstanding the fact that it was not made in the income-tax return. Needless to say, the assessee will be allowed a reasonable opportunity of hearing.
In the result, the appeal is allowed for statistical purposes.
Order pronounced in the Open Court on 08th October, 2021.