The Commissioner Of Income Tax,Chennai v. M/S.abhinitha Foundation Pvt Ltd.new

IN THE HIGH COURT OF JUDICATURE AT MADRASRESERVED on : 28.03.2017DELIVERED on : 06.06.2017CORAM : The Hon'ble MR.JUSTICE RAJIV SHAKDHERAND The Hon'ble MR.JUSTICE R.SURESH KUMAR T.C. (A) No.811 of 2016 The Commissioner of Income tax,Chennai... Appellant/Respondent -vs- M/s.Abhinitha Foundation Pvt Ltd.New No.9, Old No.3, Radhakrishna Street,T.Nagar, Chennai 600 017... Respondent/Appellant Appeal filed under Section 260A of the Income-tax Act, 1961,againsttheorderdated29.04.2016passedinI.T.A.No.281/Mds/2016 by the Income Tax Appellate Tribunal,Madras ''B'' Bench, Chennai, for the Assessment Year 2011-12against the order of the commissioner of Income Tax(appeals)-1,Chennaidated29-12-15madeinITA.No.247/14-15/New.NO.ITA.121/CIT(A)-1/2014-15 against the Assessment orderof the Deputy commissioner of Income Tax,Company Circle-1(1),Chennai,dated 28-3-14 in GIR/PAN.NO.AX-7115/ . (Judgment of the Court was delivered by Rajiv Shakdher, J.)Background facts:1.This is an appeal preferred under Section 260A of theIncome Tax Act, 1961 (in short ‘the Act’) by the Revenue againstthe judgment and order dated 29.04.2016 passed by the Income TaxAppellateTribunal(inshort‘theTribunal’)inI.T.A.No.281/Mds/2016. https://hcservices.ecourts.gov.in/hcservices/ 2.In the appeal, the Revenue seeks to raise the followingquestions of law for our consideration: i. Whether on the facts and in the circumstances ofthe case, the Tribunal was right in directing theAO to consider the claim made under Section 80IB(10) even though the assessee did not make anysuch claim in the return of income filed ? ii.Is not the finding of the Tribunal was bad indirecting the AO to consider the claim afresh inrespect of deduction u/s.80IB (10) especially whenno such claim was made in the original returnfiled nor any revised return filed claiming thesame nor any Petition under Section 264 filedwhich is against the law laid down by the ApexCourt in the case of Goetze India Ltd., reportedin 284 ITR page 323 ? 3.In order to adjudicate upon the present appeal, thefollowing broad facts need to be noticed: 3.1.The respondent, i.e. the assessee company, had filed itsreturn of income for the Assessment Year (AY) 2011-12 on30.09.2011. By virtue of the said return, the assessee companyhad disclosed a total income of Rs.3,63,39,110/-, after claimingdeduction under Chapter VI-A, equivalent to a sum ofRs.6,19,525/-. The return filed by the assessee company wasprocessed under section 143(1) of the Act on 16.02.2012.Thereafter, as it appears, the assessee company’s return waspicked up for scrutiny and a notice under section 143(2) of theAct was issued to it. Finally, after due opportunity was givento the assessee company, an assessment order was passed undersection 143(3) of the Act, whereby, the income, as returned bythe assessee company, was accepted. 3.2.It appears, that the assessee company had not made aclaim in the return as originally filed on 30.09.2011 fordeduction under Section 80IB (10) of the Act. However, duringthe course of the assessment, the assessee company filed thedetails of the project executed by it, based on which, itclaimed deduction under Section 80IB (10) of the Act. Theassessee company, while making the said claim, as required, alsofiled the details in the prescribed format, i.e. Form No.10CCB.It is pertinent to note that the Assessing Officer, however,bypassed the claim made by the assessee company qua deductionunder Section 80IB (10) of the Act, while passing the assessmentorder. 3.2.It appears, that the assessee company had not made aclaim in the return as originally filed on 30.09.2011 fordeduction under Section 80IB (10) of the Act. However, duringthe course of the assessment, the assessee company filed thedetails of the project executed by it, based on which, itclaimed deduction under Section 80IB (10) of the Act. Theassessee company, while making the said claim, as required, alsofiled the details in the prescribed format, i.e. Form No.10CCB.It is pertinent to note that the Assessing Officer, however,bypassed the claim made by the assessee company qua deductionunder Section 80IB (10) of the Act, while passing the assessmentorder. 3.3. The assessee company, being aggrieved, preferred anappeal with the Commissioner of Income Tax ( Appeals) [in short"CIT(A)"]. The CIT(A), while noting the fact that the assesseecompany’s claim for deduction under Section 80IB (10) of the Acthad been accepted by the Department both in the preceding andsucceeding years, dismissed the appeal on the ground that theclaim with respect to deduction under Section 80IB (10) of theAct did not form part of the original return filed by theassessee company. In other words, the view taken was that oncea return is filed, which does not advert to a claim, theassessee company cannot press for, it being allowed. 3.4.The assessee company, being dissatisfied with the viewtaken by the CIT (A), preferred an appeal to the Tribunal. TheTribunal reversed the order of the CIT (A), after discussing thefacts and case law on the subject in great detail. In sum, theTribunal, having regard to the law cited on the subject, ruledthat both the CIT (A) and itself (being the appellateauthorities) had the power to consider the revised claim by theassessee company, if, it was otherwise entitled to, even thoughno claim qua the same had been lodged by it in the return asoriginally filed. Having, thus, come to the said conclusion, inthe given facts and circumstances, the Tribunal remitted thematter to the Assessing Officer for fresh consideration, basedon the documents already filed by the assessee company at thetime of assessment. Consequently, the assessee company’s appealwas partly allowed, albeit, for statistical purpose. 3.5.As is indicated above, the Revenue, being aggrieved,have preferred the present appeal before us qua the judgment andorder passed by the Tribunal. Submissions of counsels: 4.In support of the appeal, arguments have been advanced byMr.T.Ravikumar, Advocate, while the assessee company’s case wasargued by Mr.R.Sivaraman, Advocate.5.Mr.Ravi, learned counsel for the Revenue, broadly made thefollowing submissions: i. Since, the assessee company had not made a claim fordeduction under Section 80IB (10) of the Act either inthe return as originally filed or, by filing a revisedreturn, it could not be permitted in law to claim thesaid deduction;deduction under Section 80IB (10) of the Act either inthe return as originally filed or, by filing a revisedreturn, it could not be permitted in law to claim thesaid deduction; ii.The Tribunal had erred in law in directing theAssessing Officer to consider the claim afreshpreferred by the assessee company under Section 80IB(10) of the Act, given the circumstance that no suchclaim had been made by the assessee company either inthe return as originally filed or, via a revisedreturn or, even by preferring a petition under Section264 of the Act; 5.1.In support of the aforesaid submissions, Mr.Ravi reliedupon the following judgments: ii.The Tribunal had erred in law in directing theAssessing Officer to consider the claim afreshpreferred by the assessee company under Section 80IB(10) of the Act, given the circumstance that no suchclaim had been made by the assessee company either inthe return as originally filed or, via a revisedreturn or, even by preferring a petition under Section264 of the Act; 5.1.In support of the aforesaid submissions, Mr.Ravi reliedupon the following judgments: 6.On the other hand, Mr.Sivaraman, learned counsel for theassessee company relied upon the findings of facts returned bythe Tribunal. Learned counsel made it a point to highlight thefact, that even though the claim qua deduction under Section80IB (10) of the Act had, inadvertently, not been made in thereturn as originally filed, the claim was made during the courseof the assessment proceedings. Learned counsel, thus, submittedthat this aspect stands noted by the Tribunal in paragraph 3 ofthe impugned judgment and order passed by it. 6.1.It was, therefore, the submission of the learned counselfor the assessee company that given the fact that the claim hadbeen made before the conclusion of the assessment proceedings,and that, the requisite material was also filed, the AssessingOfficer ought to have allowed the claim. 6.2.Learned counsel further submitted that in any event,even if, it is accepted that the Assessing Officer could nothave allowed the deduction, the appellate authorities, whichincluded the CIT (A) and the Tribunal, were not denuded of theirpower to allow the claim, based on the material already onrecord. It was further contended by the learned counsel for theassessee company that in this case, all that the Tribunal hassaid is that the Assessing Officer should reconsider the claim https://hcservices.ecourts.gov.in/hcservices/ made by the assessee company for deduction under Section 80IB(10) of the Act, based on the material already placed on recordat the stage, when, the assessment proceedings were on. 7.In the rejoinder, Mr.Ravikumar reiterated his submissionsand further added that while it may be possible for the assesseecompany to raise an additional ground based on material alreadyon record, it cannot be allowed to make a claim which does notform part of the original return or a revised return.Reasons: 8.We have heard the learned counsel for the parties andperused the record. 9.According to us, what clearly emerges upon perusal of therecord and, in particular, the impugned judgment and order ofthe Tribunal, is as follows: i. That, in the original return as filed by the assesseecompany, no claim for deduction under Section 80 IB (10)of the Act had been made.company, no claim for deduction under Section 80 IB (10)of the Act had been made. ii.That the assessee company, as observed in paragraph 3 ofthe impugned judgment and order of the Tribunal, had madea claim for deduction under Section 80 IB (10) of the Actat the stage, when, the assessment proceedings were on.At that point in time, details with regard to theproject, qua which, claim was made, were filed along withrequisite information, in the prescribed format, i.e.,Form 10CCB.the impugned judgment and order of the Tribunal, had madea claim for deduction under Section 80 IB (10) of the Actat the stage, when, the assessment proceedings were on.At that point in time, details with regard to theproject, qua which, claim was made, were filed along withrequisite information, in the prescribed format, i.e.,Form 10CCB. iii.The CIT (A), even while recognizing the fact that theclaim made by the assessee company for deduction underSection 80 IB (10) of the Act had been allowed both inclaim made by the assessee company for deduction underSection 80 IB (10) of the Act had been allowed both in the preceding and succeeding years, rejected the same,solely, on the ground that it did not form part of theoriginal return. iii.The CIT (A), even while recognizing the fact that theclaim made by the assessee company for deduction underSection 80 IB (10) of the Act had been allowed both inclaim made by the assessee company for deduction underSection 80 IB (10) of the Act had been allowed both in the preceding and succeeding years, rejected the same,solely, on the ground that it did not form part of theoriginal return. 10.Having regard to the aforesaid facts, what is required tobe considered is : whether the conclusion reached by theTribunal that the appellate authorities, (which included theCIT (A) and itself), had the necessary power to consider theclaim for deduction, if, the assessee company was otherwiseentitled to in law, given the fact that the relevant materialwas already available on record. 11.Mr.Ravikumar, in support of the appeal, contended to thecontrary and in this behalf, placed great emphasis on thejudgment of the Supreme Court in GOETZE's case. A perusal of thesaid judgment would show that the issue which arose forconsideration before the Supreme Court, was, as to whether aclaim for deduction could be made by way of a letter before theAssessing Officer, if, it did not form part of the originalreturn. The Supreme Court ruled and, while doing so, to ourminds, carefully noted that, though the Assessing Officer didnot have the power to entertain the claim for deduction madeafter the return was filed, otherwise than by filing a revisedreturn, it did not exclude the power of the Tribunal to considerthe claim in exercise of its appellate power under Section 254of the Act. This aspect of the matter is quite clearly broughtto light in the operative paragraph of the judgment, i.e.,paragraph 4. 11.1.For the sake of convenience, the said observations areextracted hereafter: ''4.The decision in question is that the power ofthe Tribunal under S.254 of the IT Act, 1961, is toentertain for the first time a point of law providedthe fact on the basis of which the issue of law can beraised before the Tribunal. The decision does not inany way relate to the power of the AO to entertain aclaim for deduction otherwise than by filing a revisedreturn. In the circumstances of the case, we dismissthe civil appeal. However, we make it clear that theissue in this case is limited to the power of theassessing authority and does not impinge on the powerof the Tribunal under s.254 of the IT Act, 1961. Thereshall be no order as to costs.'' (Emphasis is ours) 12.To be noted, the Supreme Court, while rendering itsjudgment in the case of Goetze, had noticed its own judgment inNational Thermal Co. Ltd. vs. CIT, (1998) 229 ITR 383 (SC). Inthe said case, the Supreme Court was called upon to adjudicateas to whether a claim made by way of a letter before theTribunal for the first time could have been entertained by theTribunal. Briefly, the facts which obtained in the said case areas follows: (Emphasis is ours) 12.To be noted, the Supreme Court, while rendering itsjudgment in the case of Goetze, had noticed its own judgment inNational Thermal Co. Ltd. vs. CIT, (1998) 229 ITR 383 (SC). Inthe said case, the Supreme Court was called upon to adjudicateas to whether a claim made by way of a letter before theTribunal for the first time could have been entertained by theTribunal. Briefly, the facts which obtained in the said case areas follows: 12.1.The assessee, in that case, had available with itsurplus funds, which it chose to deposit with banks on a shortterm basis. Qua the said short term deposits, the assesseeearned interest during the relevant previous year amounting toRs.22,84,994/-. The said interest was offered for levy tax bythe assessee, based on which, assessment proceedings werecompleted. The assessee, however, challenged the assessmentorder before the CIT (A) qua grounds other than the inclusion ofthe interest earned on short term deposits in the total income.Consequently, this aspect of the matter was not considered bythe CIT (A). The assessee, however, carried the matter in appealto the Tribunal. The appeal, as originally filed with theTribunal, did not object to the inclusion of interest in the sumof Rs.22,84,994/-. The assessee, however, as indicated above,for the first time, by way of a letter dated 16.07.1983, raisedadditional grounds, whereby, a challenge was laid to theinclusion of interest in the total income. The basis of thechallenge was that, since, the sum of Rs.22,84,994/- had beendeducted from the expenditure incurred during constructionperiod, it could not have been included in the total income. 12.2.The Supreme Court, after examining the matterthreadbare, made the following observations: ''Under Section 254 of the Income-tax Act, theAppellate Tribunal may, after giving both the partiesto the appeal an opportunity of being heard, pass suchorders thereon as it thinks fit. The power of theTribunal in dealing with appeals is thus expressed inthe widest possible terms. The purpose of theassessment proceedings before the taxing authorities isto assess correctly the tax liability of an assessee inaccordance with law. If, for example, as a result of ajudicial decision given while the appeal is pendingbefore the Tribunal, it is found that a non-taxableitem is taxed or a permissible deduction is denied, wedo not see any reason why the assessee should be prevented from raising that question before theTribunal for the first time, so long as the relevantfacts are on record in respect of that item. We do notsee any reason to restrict the power of the Tribunalunder section 254 only to decide the grounds whicharise from the order of the Commissioner of Income-tax(Appeals). Both the assessee as well as the Departmenthave aright to file an appeal/cross-objections beforethe Tribunal. We fail to see why the Tribunal shouldbe prevented from considering questions of law arisingin assessment proceedings although not raised earlier. prevented from raising that question before theTribunal for the first time, so long as the relevantfacts are on record in respect of that item. We do notsee any reason to restrict the power of the Tribunalunder section 254 only to decide the grounds whicharise from the order of the Commissioner of Income-tax(Appeals). Both the assessee as well as the Departmenthave aright to file an appeal/cross-objections beforethe Tribunal. We fail to see why the Tribunal shouldbe prevented from considering questions of law arisingin assessment proceedings although not raised earlier. In the case of Jute Corporation of India Ltd. v.CIT (1991) 187 ITR 688, this court, while dealing withthe powers of the Appellate Assistant Commissionerobserved that an appellate authority has all the powerswhich the original authority may have in deciding thequestion before it subject to the restrictions orlimitations, if any, prescribed by the statutoryprovisions. In the absence of any statutory provision,the appellate authority is vested with all the plenarypowers which the subordinate authority may have in thematter. There is no good reason to justify curtailmentof the power of the Appellate Assistant Commissioner inentertaining an additional ground raised by theassessee in seeking modification of the order ofassessment passed by the Income-tax Officer. This courtfurther observed that there may be several factorsjustifying the raising of a new plea in an appeal andeach case has to be considered on its own facts. TheAppellate Assistant Commissioner must be satisfied thatthe ground raised was bona fide and that the same couldnot have been raised earlier for good reasons. TheAppellate Assistant Commissioner should exercise hisdiscretion in permitting or not permitting the assesseeto raise an additional ground in accordance with lawand reason. The same observations would apply toappeals before the Tribunal also. The view that the Tribunal is confined only toissues arising out of the appeal before theCommissioner of Income-tax (Appeals) takes too narrow aview of the powers of the Appellate Tribunal (vide,e.g., CIT v. Anand Prasad (1981) 128 ITR 388 (Delhi),CIT v. Karamchand Premchand P. Ltd. (1969) 74 ITR 254(Guj) and CIT v. Cellulose Products of India Ltd.(1985) 151 ITR 499 (Guj) (FB). Undoubtedly, theTribunal will have the discretion to allow or not allowa new ground to be raised. But where the Tribunal isonly required to consider a question of law arisingfrom the facts which are on record in the assessmentproceedings we fail to see why such a question should not be allowed to be raised when it is necessary toconsider that question in order to correctly assess thetax liability of an assessee.'' (Emphasis is ours) 12.3.In the said judgment, the Supreme Court also noticedits own judgment in the case of Jute Corporation of India Ltd.v. CIT (1991) 181 ITR 688. This view has been adopted by twoDivision Benches of this Court in the matter of Ramco CementsLtd. vs. DCIT (2015) 55 taxmann.com 79 (Madras) and, in thejudgment rendered in: T.C. (A) No.878 of 2014 dated 18.11.2014,titled CIT vs. Malind Laboratories P. Ltd. As a matter of fact,the Delhi High Court has also, in two separate judgments, cometo the same conclusion. These judgments are rendered in: CITvs. Sam Global Securities Ltd., (2013) 38 taxmann.com 129(Delhi) and CIT vs. Jai Parabolic Springs Ltd., (2008) 306 ITR42 (Delhi). (Emphasis is ours) 12.3.In the said judgment, the Supreme Court also noticedits own judgment in the case of Jute Corporation of India Ltd.v. CIT (1991) 181 ITR 688. This view has been adopted by twoDivision Benches of this Court in the matter of Ramco CementsLtd. vs. DCIT (2015) 55 taxmann.com 79 (Madras) and, in thejudgment rendered in: T.C. (A) No.878 of 2014 dated 18.11.2014,titled CIT vs. Malind Laboratories P. Ltd. As a matter of fact,the Delhi High Court has also, in two separate judgments, cometo the same conclusion. These judgments are rendered in: CITvs. Sam Global Securities Ltd., (2013) 38 taxmann.com 129(Delhi) and CIT vs. Jai Parabolic Springs Ltd., (2008) 306 ITR42 (Delhi). 12.4.Furthermore, a Division Bench of the Bombay High Courthas also taken the same view in the judgment rendered in CITvs. Pruthvi Brokers & Shareholders P. Ltd., (2012) 349 ITR 336(Bom.). The issue, with which, the Bombay High Court wasgrappling, was, that a claim for deduction under Section 43B ofthe Act had not been made qua the relevant assessment year inthe original return, but was made via a letter. The DivisionBench of the Bombay High Court held even while assuming and, inthat sense, accepting the argument of the Revenue, that though,an amendment to the original return could not be made by filinga letter - it would be open to the appellate authorities toconsider the claim and adjudicate upon the same. In this behalf,the Bombay High Court made the following observations: ''14. A long line of authorities establishclearly that an assessee is entitled to raiseadditional grounds not merely in terms of legalsubmissions, but also additional claims to wit claimsnot made in the return filed by it. It is necessaryfor us to refer to some of these decisions only todeal with two submissions on behalf of the department.The first is with respect to an observation of theSupreme Court in Jute Corporation of India Limited v.Commissioner of Income Tax, 1991 Supp (2) SCC 744 =(1991) 187 ITR 688. The second submission is based ona judgment of the Supreme Court in Goetze (India)Limited v. Commissioner of Income Tax, (2006) 157Taxman 1. (A). In Jute Corporation of India Limited v. CIT, forthe assessment year 1974-75 the appellant did not claim any deduction of its liability towards purchasetax under the provisions of the Bengal Raw JuteTaxation Act, 1941, as it entertained a belief that itwas not liable to pay purchase tax under that Act.Subsequently, the appellant was assessed to purchasetax and the order of assessment was received by it on23rd November, 1973. The appellant challenged the sameand obtained a stay order. The appellant also filed anappeal from the assessment order under the Income TaxAct. It was only during the hearing of the appeal thatthe assessee claimed an additional deduction inrespect of its liability to purchase tax. TheAppellate Assistant Commissioner (AAC) permitted it toraise the claim and allowed the deduction. TheTribunal held that the AAC had no jurisdiction toentertain the additional ground or to grant relief ona ground which had not been raised before the IncomeTax Officer. The Tribunal also refused the appellant'sapplication for making a reference to the High Court.The High Court upheld the decision of the Tribunal andrefused to call for a statement of case. It is inthese circumstances that the appellant filed theappeal before the Supreme Court. 15.The Supreme Court held as under (page 693) :-''In CIT v. Kanpur Coal Syndicate, a threeJudge bench of this Court discussed the scopeof Section 31(3)(a) of the Income Tax Act, 1922which is almost identical to Section 251(1)(a).The court held as under: (ITR p. 229)“If an appeal lies, Section 31 of the Actdescribes the powers of the AppellateAssistant Commissioner in such an appeal.Under Section 31(3)(a) in disposing of suchanappealtheAppellateAssistantCommissioner may, in the case of an order ofassessment, confirm, reduce, enhance orannul the assessment; under clause (b)thereof he may set aside the assessment anddirect the Income Tax Officer to make afresh assessment. The Appellate AssistantCommissioner has, therefore, plenary powersin disposing of an appeal. The scope of hispower is co-terminus with that of theIncome-tax Officer. He can do what theIncome-tax Officer can do and also directhim to do what he has failed to do.”(emphasis supplied)The above observations are squarely applicable tothe interpretation of Section 251(1)(a) of theAct. The declaration of law is clear that thepower of the Appellate Assistant Commissioner is coterminus with that of the Income Tax Officer,if that be so, there appears to be no reason asto why the appellate authority cannot modify theassessment order on an additional ground even ifnot raised before the Income Tax Officer. Noexception could be taken to this view as the Actdoes not place any restriction or limitation onthe exercise of appellate power. Even otherwisean Appellate Authority while hearing appealagainst the order of a subordinate authority hasall the powers which the original authority mayhave in deciding the question before it subjectto the restrictions or limitations if anyprescribed by the statutory provisions. In theabsence of any statutory provision the AppellateAuthority is vested with all the plenary powerswhich the subordinate authority may have in thematter. There appears to be no good reason andnone was placed before us to justify curtailmentof the power of the Appellate AssistantCommissioner in entertaining an additional groundraised by the assessee in seeking modification ofthe order of assessment passed by the Income TaxOfficer.” [emphasis supplied]''(B) It is clear, therefore, that an assessee isentitled to raise not merely additional legalsubmissions before the appellate authorities, but isalso entitled to raise additional claims before them.The appellate authorities have the discretion whetheror not to permit such additional claims to be raised.It cannot, however, be said that they have nojurisdiction to consider the same. They have thejurisdiction to entertain the new claim. That they maychoose not to exercise their jurisdiction in a givencase is another matter. The exercise of discretion isentirely different from the existence of jurisdiction.16. At page 694, after referring to certainobservations of the Supreme Court in AdditionalCommissioner of Income-tax v. Gurjargravures P. Ltd.,(1978) 111 ITR 1, the Supreme Court observed at Page694 as under :-“The above observations do not rule out a case forraising an additional ground before the AppellateAssistant Commissioner if the ground so raisedcould not have been raised at that particularstage when the return was filed or when theassessment order was made, or that the groundbecame available on account of change ofcircumstances or law. There may be several factorsjustifying raising of such new plea in appeal, andeach case has to be considered on its own facts. If the Appellate Assistant Commissioner issatisfied he would be acting within hisjurisdiction in considering the question so raisedin all its aspects. Of course, while permittingthe assessee to raise an additional ground, theAppellate Assistant Commissioner should exercisehis discretion in accordance with law and reason.He must be satisfied that the ground raised wasbona fide and that the same could not have beenraised earlier for good reasons. The satisfactionof the Appellate Assistant Commissioner dependsupon the facts and circumstances of each case andno rigid principles or any hard and fast rule canbe laid down for this purpose.” [emphasissupplied]17. The underlined observations in the abovepassage do not curtail the ambit of the jurisdictionof the appellate authorities stipulated earlier. Theydo not restrict the new/additional grounds that may betaken by the assessee before the the appellateauthorities to those that were not available when thereturn was filed or even when the assessment order wasmade. The sentence read as a whole entitles anassessee to raise new grounds/make additionalclaims :-“if the ground so raised could not have beenraised at that particular stage when the returnwas filed or when the assessment order wasmade....” “or” if “the ground became available onaccount of change of circumstances or law”18.The appellate authorities, therefore, havejurisdiction to deal not merely with additionalgrounds, which became available on account of changeof circumstances or law, but with additional groundswhich were available when the return was filed. Thefirst part viz. “if the ground so raised could nothave been raised at that particular stage when thereturn was filed or when the assessment order wasmade...” clearly relate to cases where the ground wasavailable when the return was filed and the assessmentorder was made but “could not have been raised” atthat stage. The words are “could not have been raised”and not “were not in existence”. Grounds which werenot in existence when the return was filed or when theassessment order was made fall within the secondcategory viz. where “the ground became available onaccount of change of circumstances or law.” (Emphasis is ours) 12.5. A reading of the aforesaid observations would clearlyestablish that the arguments advanced by Mr.Ravi that theassessee company could only raise an additional ground and notmake a new claim or additional claim is not sustainable. Asindicated by us hereinabove, this power of entertaining theclaim vests with the appellate authorities based on the factsand circumstances of the case. The power of the appellateauthorities to consider claims made based on material already onrecord is co-terminus with the power of the Assessing Officer.The failure to advert to the claim in the original return or therevised return cannot denude the appellate authorities of theirpower to consider the claim, if, the relevant material isavailable on record and is otherwise tenable in law. Any otherview, in our opinion, will set at naught the plenary powers ofappellate authorities. 13.The judgment of the Division Bench of this Court renderedin T.C. (A) No.344 of 2005, dated 16.06.2011, titled CIT vs.M/s.Shriram Investments, which is relied upon by the learnedcounsel for the Revenue, is clearly distinguishable, as in thatcase, the assessee had sought assessment of tax by disclosing alower taxable income, albeit, by filing a second revised return.It is in that context that the Division Bench came to theconclusion that the second revised return, which was filedbeyond the period of limitation, being non est in law, would notbe considered for the purposes of ascertaining the taxableincome. 13.The judgment of the Division Bench of this Court renderedin T.C. (A) No.344 of 2005, dated 16.06.2011, titled CIT vs.M/s.Shriram Investments, which is relied upon by the learnedcounsel for the Revenue, is clearly distinguishable, as in thatcase, the assessee had sought assessment of tax by disclosing alower taxable income, albeit, by filing a second revised return.It is in that context that the Division Bench came to theconclusion that the second revised return, which was filedbeyond the period of limitation, being non est in law, would notbe considered for the purposes of ascertaining the taxableincome. 14.In so far as the judgment of the Supreme Court in thematter of Stepwell is concerned, according to us, it has noapplicability to the issue raised in the instant appeal. Inthat case, the Tribunal appears to have allowed the claim of theassessee for deduction under Section 35 B of the Act withoutexamining the facts of the case. The assessee, evidently, hadneither made a claim before the ITO nor the AAC nor, had he,furnished particulars of the expenditure incurred by it. It isin this context that the Supreme Court observed that the onus ofproving facts and obtaining the benefit of a deduction lay onthe assessee. It was further observed that since the assesseefailed to prove its claim before the ITO or the AAC, theTribunal could not have allowed the claim on assumption of facts. 15. As indicated above, the ratio on the said judgment isentirely different and therefore, has no applicability to thefacts of the instant case. https://hcservices.ecourts.gov.in/hcservices/ 16.Similarly, the judgment of the Allahabad High Court inthe matter of G.S. Rice Mills is distinguishable, inasmuch asthe assessee had neither made a claim before the ITO nor was anymaterial placed on record in support of the claim. The HighCourt, in this context, held that the Tribunal was not justifiedin entertaining the claim made under Section 80G of the Act andthereupon, issuing a consequent direction to the ITO to examinethe same on merits. 16.1.As would be evident from the narration of facts set outabove, in the present case, the Tribunal has noted that relevantmaterial was placed by the assessee company before the AssessingOfficer during the course of the assessment proceedings.Therefore, in our view, the said judgment is alsodistinguishable. 17. A similar situation arose in the case of ACIT vs.Gurjargravures P. Ltd. In this case as well, it was noticedthat neither was any claim made before the ITO nor was anysupporting material placed on record. It is in this backgroundthat no relief was granted. The Supreme Court, in this case,disagreed with the High Court, inasmuch as it sustained thedirection of the Tribunal issued to the ITO to grant appropriaterelief qua claim made under Section 84 of the Act. 17. A similar situation arose in the case of ACIT vs.Gurjargravures P. Ltd. In this case as well, it was noticedthat neither was any claim made before the ITO nor was anysupporting material placed on record. It is in this backgroundthat no relief was granted. The Supreme Court, in this case,disagreed with the High Court, inasmuch as it sustained thedirection of the Tribunal issued to the ITO to grant appropriaterelief qua claim made under Section 84 of the Act. 18.In sum, what emerges from a perusal of the ratio of thejudgments cited above, in particular, the judgments rendered bythe Supreme Court in GOETZE's case and National Thermal PowerCo. Ltd.'s case, and those, rendered by the Division Bench ofthis Court in Ramco Cements Ltd. and CIT vs Malind LaboratoriesP. Ltd., as also the judgments of the Delhi High Court in SamGlobal Securities Ltd.'s case and Jai Parabolic Springs Ltd.'scase, that, even if, the claim made by the assessee company doesnot form part of the original return or even the revised return,it could still be considered, if, the relevant material wasavailable on record, either by the appellate authorities, (whichincludes both the CIT (A) and the Tribunal) by themselves, or onremand, by the Assessing Officer. In the instant case, theTribunal, on perusal of the record, found that the relevantmaterial qua the claim made by the assessee company underSection 80 IB (10) of the Act was placed on record by theassessee company during the assessment proceedings andtherefore, it deemed it fit to direct its reexamination by theAssessing Officer. 18.1.In our opinion, the view taken by the Tribunal isunexceptionable and therefore, does not merit any interference. 19.Consequently, the Tax Case Appeal is dismissed, leavingthe parties to bear their own costs.Sd/- Asst.Registrar (CS III )/true copy/Sub Asst. Registrarsra/slTo1.The Registrar, Income Tax Appellate Tribunal, Chennai 'C' Bench, Chennai.2.The Commissioner of Income Tax (Appeals)-I, Chennai.3.The Deputy Commissioner of Income-tax, Company Circle 1(1).Chennai.+1cc to Mr.T.Ravikumar,Advocate sr.40021+1cc to Mr.R.Sivaraman,Advocate sr.40878T.C. (A) No.811 of 2016kgk(co)ss(16/6/2017)