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Subhash Chandra Sarvesh Kumar Vs. Commissioner of Income-tax and anr. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtAllahabad High Court
Decided On
Case NumberC.M. Writ Petition No. 39 of 1978
Judge
Reported in[1981]132ITR619(All); [1980]4TAXMAN106(All)
ActsIncome Tax Act, 1961 - Sections 80J and 80HH
AppellantSubhash Chandra Sarvesh Kumar
RespondentCommissioner of Income-tax and anr.
Excerpt:
- .....deductions under these provision?. subsequently, the assessee became aware that he was entitled to claim deductions under the aforesaid provisions and filed revisions before the commissioner of income-tax. the commissioner passed a consolidated order in respect of the revisions of both the assessment years. he held that no relief was claimed under these provisions before the ito in the assessment proceedings or in the returns of income-tax filed by the assessee. the ito could not take up the question of these reliefs suo motu. the claim now made was a belated one and could not be entertained in a revision. aggrieved against this revisional order, the assessee has come to this court under article 226 of the constitution.2. learned counsel for the assessee-petitioner submits that the.....
Judgment:

Satish Chandra, C.J.

1. For the assessment years 1974-75 and 1976-77, the ITO passed assessment orders on 11th October, 1976, and 25th April, 1977, respectively. The assessee had not made any claim for deductions under Section 80J and Section 80HH of the IT. Act. Naturally, the ITO did not deal with or allow the deductions under these provision?. Subsequently, the assessee became aware that he was entitled to claim deductions under the aforesaid provisions and filed revisions before the Commissioner of Income-tax. The Commissioner passed a consolidated order in respect of the revisions of both the assessment years. He held that no relief was claimed under these provisions before the ITO in the assessment proceedings or in the returns of income-tax filed by the assessee. The ITO could not take up the question of these reliefs suo motu. The claim now made was a belated one and could not be entertained in a revision. Aggrieved against this revisional order, the assessee has come to this court under Article 226 of the Constitution.

2. Learned counsel for the assessee-petitioner submits that the requisite particulars on the basis of which the deductions under the aforesaid provisions could be allowed were already on the record, hence, the fact that a formal claim was not made in the return of income should not have deterred the ITO or the Commissioner from granting it. In our opinion, the submission has substance. It is settled that if in addition to the absence of a claim in the return of income there is no material or particulars on the record on the basis of which a claimed deduction can be allowed, the assessee is not entitled to such a claim being entertained either in an appeal or in revision or by way of rectification, etc. [See Anchor Pressings (P.) Ltd. v. CIT : [1975]100ITR347(All) and Sharda Prasad v. CIT : [1975]100ITR373(All) ]. It has also been held by this court that even though a claim may not have been made in the return of income, yet if the necessary particulars are on the record, the ITO should consider them and allow the claim [vide Ascharajlal Ram Parkash v. CIT : [1973]90ITR477(All) . In Addl. CIT v. Gurjargravures P. Ltd. : [1978]111ITR1(SC) , the Supreme Court had an occasion to deal with such a situation. It held thatif a claim under Section 84 was not made before the ITO nor was there any material on the record in support thereof, then, because such a claim has been allayed in subsequent years, it could not be assumed that the prescribed conditions justifying a claim for exemption under Section 84 were also fulfilled and so the appellate authorities were not competent to direct the ITO to entertain such a claim. The Supreme Court made it clear that they were not dealing with a case where there was some, material on the record sustaining the claim, though made for the first time before the appellate authority. It was pointed out that in the case before them neither any claim was made before the ITO nor was there any material on the record to support such a claim. On such facts, the appellate authorities could not direct the ITO to entertain the claim. In the present case, the Commissioner has not approached the problem from the correct legal view-point. He should have considered whether there was material or particulars on the record to sustain the claim. If so, the fact that the claim was not formally made in the return of income or while the proceedings were pending before the ITO would not be a substantial obstacle to the entertainment of the claim. Merely saying that the ITO could not grant relief suo motu is not sufficient for a valid disposal of the revision.

3. In the result, the petition succeeds and is allowed. The impugned order passed by the Commissioner is set aside and the matter is remitted to him for decision afresh in accordance with law.

4. The petitioner will be entitled to his costs.


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