Appellate Authority certainly has power and jurisdiction to entertain a fresh claim of the assessee if the relevant fact for deciding such issue are available on record.
ITAT MUMBAI
TRISTAR FASHIONS C/O SHANKARLAL JAIN & ASSOCIATES VERSUS ASSTT. COMMISSIONER OF INCOME TAX CIRCLE–17 (3) , MUMBAI
ITA no.3521/Mum./2019
Short overview of the case:
The issue was with regard to taxability of long term capital gain arising on sale of appreciable asset at 20% instead of 30%
Assessee has not made such claim either in the original return of income or through a revised return of income
ITAT observed that Assessee did make a claim through submissions that since the asset sold was held for more than three years, the rate of tax as applicable in case of long term capital gain would apply in terms of section 112.
Both, the AO and Commissioner (Appeals) have rejected the aforesaid claim of the assessee on the ground that the assessee has not made such claim either in the original return of income or through a revised return of income as provided under section 139(5).
The settled legal position as emerges from the decision of the Hon’ble Supreme Court in Goetz India Ltd. [2006 (3) TMI 75 – SUPREME COURT] and CIT v/s Pruthvi Brokers and Shareholders Pvt. Ltd.[2012 (7) TMI 158 – BOMBAY HIGH COURT] the appellate authority certainly has power and jurisdiction to entertain a fresh claim of the assessee if the relevant fact for deciding such issue are available on record.
Therefore, in our considered opinion, Commissioner (Appeals) was not justified in rejecting the claim of the assessee without deciding it on merit.
Grounds raised by the assessee are allowed for statistical purposes
