- (1.) The following question of law has been referred to this Court for opinion:- "Whether on the facts and in the circumstances of the case, the Tribunal was legally correct in holding that any income had escaped assessment within the meaning of section 148 by the reason of allowance of relief under section 80I, even though the quantum of relief issued in the original assessment was fully covered by the relief as was undisputedly admissible to the assessee under section 80J -
(2.) The assessee had claimed relief under Section 80-I for the assessment year 1981-82, which was allowed. Later on the assessments were reopened on the ground that the provisions of Section 80-I were not applicable and the income to that extent had escaped the assessment. The case was reopened under Section 147 of the Income Tax Act, 1961 and the assessee was allowed number of opportunities to furnish his detailed explanation. Since no reply was submitted by the assessee, the case was reopened and the notice under Section 148 was issued. The assessee in its reply dated 8.2.1986, submitted that deduction allowable under Section 80-J has been wrongly allowed under Section 80-I to him. The assessee further submitted that his claim under Section 80J has been mistaken by the Assessing Authority for claim under Section 80-I and claimed that proceedings under Section 148 may be dropped and the mistake be rectified under Section 154. The A.O. held as under:- "The above claim of the assessee appears to be factually incorrect. In the original return the assessee had claimed deduction u/s 80I with a detailed working at Rs.3,29,201. The assessee has furnished the detailed working not only in the return but also in the Annexure enclosed alongwith the return. In the revised return also the assessee has claimed deduction u/s 80I in the return as well as in the Annexure but on a different figure. Here the assessee, again has given a detailed working and has claimed deduction u/s 80I at Rs.4,00,694. The assessee has nowhere claimed deduction under sec. 80J either in the returns of income or in the Annexures enclosed alongwith them. From the above it is clear that the assessee had never claimed deduction u/s 80J and he has claimed deduction u/s 80I only which was not admissible to him. The Deptt. has wrongly allowed deduction 80I as the same is not at all admissible. The assessee has also accepted that deduction u/s 80I is not admissible to him. Now the question arises whether deduction u/s 80J can be allowed to the assessee which has not been claimed by him either during the assessment proceedings or Appeal state. The assessee claimed only when a show cause notice was issued to him and notice u/s 148 was served on him. Since the assessee has not claimed the above deduction either in the original stage or in the appellate stage, to my mind the same is not admissible to him at this stage. Under the circumstances deduction wrongly allowed to him u/s 80I amounting to Rs.4,00,694/- is withdrawn and his request for allowing deduction u/s 80J is rejected."
(3.) The Commissioner of Income Tax (Appeals), Varanasi agreed with the findings of A.O. and held as under:- "In my opinion, the claim of the assessee u/s 80-J of the I T Act can not be allowed in proceedings u/s 147 of the Act. Hon'ble Allahabad High Court in the case of S S L & Sons, Vs. CIT, 1973 92 ITR 453 have held that the entire assessment is not opened on re-assessment. A claim can not be agitated on the assessment being reopened for bringing to tax income which has escaped assessment. In other words the re-assessment proceedings are for bringing to tax what has escaped assessment. It does not allow the assessee to claim fresh reliefs and deductions. Admittedly the claim of the assessee u/s 80-J was not made before Assessing Officer. The claim was made u/s 80-I of the IT Act which is apparently not admissible to the assessee. There is yet another difficulty in granting relief to the assessee. The facts already on records before the assessing officer are not sufficient to decide whether the relief u/s 80-J is admissible to the assessee or not. It will necessarily involve investigations in further facts. In this view of the matter the claim cannot be considered by the Appellate Authority also in view of the Supreme Court decision in the case of Additional CIT Vs. GURJARGRAVURES P. Ltd., 1978 111 ITR 1.";