TATA CUMMINS PVT LTD , JSR V. DCIT CIR-2 , JSR

ITA 350/RAN/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 9745 (ITAT-RANCHI)
• Duration Of Justice: 1 year(s) 3 month(s) 13 day(s)
• Appeal Type: Income Tax (Transfer Pricing) Appeal
• Pronouncement Date: 05-04-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2012-2013
• Appeal Filed On: 22-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: NINAD A PATADE
• Keywords: Depreciation; Transfer pricing; International transaction; Bad and doubtful debts; Capital expenditure; Set aside
• Section: 142(1); 115JB; 2

Judgement Text

1 ITA NO S . 347 & 349 - 351 /RAN/ 201 7 IN THE INCOME TAX APPELLATE TRIBUNAL, RANCHI BENCH, RANCHI BEFORE SHRI N.S.SAINI , ACCOUNTANT MEMBER & SHRI PAVAN KUMAR GADALE , JUDICIAL MEMBER ITA NO S . 347 & 349 TO 351/RAN/2017 A .Y S . : 2008 - 09, 20 11 - 12, 2012 - 13 & 2013 - 14 TATA CUMMINS PRIVATE LIMITED ( FORMERLY KNOWN AS TATA CUMMINS LIMITED), CUMMINS ROAD, TELCO TOWNSHIP, JAMSHEDPUR - 831004, JHARKHAND V S ACIT/DCIT/JCIT, CIRCLE - 3/2, JAMSHEDPUR T AN NO. : A AACT 6353 L (APPELLANT ) .. RESPONDENT ASSESSEE BY : MR. NINAD A. PATADE , CA REVENUE BY :SHRI D EEPAK KUMAR SUTARIYA, CIT(A), JSR DATE OF HEARING : 21 . 05 .201 8 DATE OF PRONOUNCEMENT : 22.05 .201 8 O R D E R PER PAVAN KUMAR GADALE, JM : TH E SE ARE THE APPEALS FILED BY THE ASSESSEE AGAINST THE SEPARATE O RDER S OF CIT(A), JAMSHEDPUR , JHARKHAND , FOR ASSESSMENT YEARS 2008 - 09, 2011 - 12, 2012 - 13 & 2013 - 14. 2. AT THE TIME OF HEARING, LD. AR OF THE ASSESSEE HAS FILED AN APPLICATION FOR ADJOURNMENT ON THE GROUND THAT MR. ARVIND SONDE, ADVOCATE, WHO HAS BEEN BRIEFED IN THE MATTER, IS NOT AVAILABLE IN RANCHI ON APPOINTED DATE , WHICH IS IN OUR OPINION, IS NOT A PLAUSIBLE ONE, AND THE SAME IS REJECTED AND THE BENCH PROCEEDED TO DISPOSE OFF THE APPEAL ON THE BASIS OF MATERIAL AVAILABLE ON RECORD . 2 ITA NO S . 347 & 349 - 351 /RAN/ 201 7 3. FIRST WE SHALL DECIDE APPEALS FOR ASSESSMENT YEARS 2011 - 12, 2012 - 13 & 2013 - 14 IN ITA NOS.349 TO 351/RAN/2017. SINCE ALL THE APPEALS ARE INTERCONNECTED AND THE ISSUES INVOLVED ARE COMMON, THEREFORE, WE THINK IT APPROPRIATE TO CONSIDER THE FACTS AND GROUNDS NARRATED IN ITA NO.34 9/RAN/2017 . BEFORE GOING TO THE OTHER GROUNDS, THE ASSESSEE HAS RAISED THE FIRST GROUND OF APPEAL IN ALL THE APPEALS, READS AS UNDER : - 1. THAT THE CIT(A) HAS ERRED IN PASSING EX - PARTE ORDER AND PRAYED FOR DIRECTION TO REHEAR THE APPEAL DENOVO AND TO DECI DE THE SAME IN ACCORDANCE WITH LAW. 4 . BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS ENGAGED IN THE BUSINESS OF MANUFACTURING OF INTERNAL COMBUSTION ENGINES AND COMPONENTS AND FILED THE RETURN OF INCOME FOR THE ASSESSMENT YEAR 2011 - 12 ON 30.11.2011 WI TH TOTAL INCOME OF RS. 1,33,24,35,058/ - AND BOOK PROFIT UNDER SECTION 115JB AT RS.174,82,10,062/ - . LATER ON RETURN OF INCOME WAS REVISED ON 30.03.2013 WITH TOTAL INCOME OF RS.133,24,35,380/ - . THE RETURN OF INCOME WAS PROCESSED U/S.143(1) OF THE ACT. SUBSEQ UENTLY THE CASE WAS SELECTED FOR SCRUTINY AND NOTICE U/S.143(2) & 142(1) WERE ISSUED TO THE ASSESSEE. IN COMPLIANCE THE AR OF THE ASSESSEE APPEARED FROM TIME TO TIME AND FILED THE DOCUMENTS . THE AO ON PERUSAL OF THE FINANCIAL STATEMENTS AND THE SUBMISSION OF THE ASSESSEE FOUND THAT THE ASSESSEE HAS MADE INTERNATIONAL TRANSACTION DURING THE YEAR. THE CASE WAS REFERRED TO THE TRANSFER PRICING OFFICER AT KOLKATA AFTER GETTING APPROVAL FROM THE CIT, JAMSHEDPUR FOR DETERMINING ARMS LENGTH PRICE. THE DDIT, TRANSF ER PRICING OFFICER - I, KOLKATA, VIDE ITS ORDER U/S.92CA(3) OF THE ACT DATED 3 ITA NO S . 347 & 349 - 351 /RAN/ 201 7 30.01.2015 HAS NOT MADE ANY ADJUSTMENT TO THE TOTAL INCOME OF THE ASSESSEE WITH REGARD TO COMPUTATION OF ARMS LENGTH PRICE (ALP) OF ITS INTERNATIONAL TRANSACTION WITH ITS ASSOCIATED ENTERPRISES. THE AO FOUND THAT EXPENDITURE CLAIMED BY THE ASSESSEE WAS NOT IN ACCORDANCE WITH THE PROVISIONS OF INCOME TAX, ACT AND ALSO CALLED FOR THE EXPLANATION AND AFTER DISCUSSION, MADE OBSERVATION IN THE ORDER AND MADE DISALLOWANCE ON ACCOUNT OF TES TING CHARGES PAID TO OUTSIDES AGENCIES, WARRANTY CHARGES, DISALLOWANCE OF BAD DEBTS, ADVANCE WRITTEN OFF AND NON - GRANTING OF DEPRECIATION ON THE INTANGIBLES ASSETS AND ASSESSED THE TOTAL INCOME AT RS.1,49,55,95,070/ - AND PASSED ORDER U/S.143(3) OF THE ACT, DATED 13.03.2015. 5 . AGGRIEVED BY THE ASSESSMENT ORDER , THE ASSESSEE HAS FILED AN APPEAL WITH THE CIT(A). I N THE APPELLATE PROCEEDINGS LD. AR OF THE ASSESSEE ARGUED THE GROUNDS AND REITERATED THE SUBMISSIONS AND LD.CIT(A) HAVING CONSIDERED THE FINDINGS AN D THE SUBMISSIONS OF THE ASSESSEE DEALT ON THE DISPUTED ISSUE S . THE CIT(A) OBSERVED THAT THE ASSESSEE HAS NOT SUBMITTED DETAILS IN RESPECT OF ADDITIONS MADE BY THE AO AND THERE IS NO PROPER FINDING OF THE AO. THE CIT(A) FURTHER FOUND THAT NOTICES WERE ISSU ED FOR HEARING TO THE ASSESSEE BUT THE ASSESSEE HAS SOUGHT AN ADJOURNMENT AND ON THE DATE OF HEARING THE CASE COULD NOT BE HEARD AS THERE WAS NO COMPLIANCE, THEREFORE, THE CIT(A) PASSED ORDER CONSIDERING THE MATERIAL AVAILABLE ON RECORD AND FINDINGS OF AO AND DISMISS THE APPEAL OF THE ASSESSEE. 4 ITA NO S . 347 & 349 - 351 /RAN/ 201 7 6 . AGGRIEVED BY THE ORDER OF CIT(A), THE ASSESSEE HAS FILED AN APPEAL BEFORE THE TRIBUNAL. 7 . AT THE TIME OF HEARING LD. AR REQUESTED FOR AN ADJOURNMENT AND THE SAME WAS REJECTED. ON PERUSAL OF THE GROUNDS OF APPEA L, THE ASSESSEE HAS EXPLAINED THAT THE CIT(A) HAS PASSED AN EX - PARTE ORDER WITHOUT CONSIDERING THE FACT THAT THE ASSESSEE HAS EXPLAINED FOR NON - APPEARANCE BEFORE THE CIT(A) AND ALSO FILED AN AFFIDAVIT IN THIS REGARD WHICH READS AS UNDER : - AFFIDAVIT I, SUS HIL KUMAR SRIVASTAVA, SON OF LALAN PRASAD SRIVASTAVA, RESIDING AT N - 65/4,TELCO COLONY JAMSHEDPUR AND WORKING WITH TATA CUMMINS PVT. LTD., HAVING THEIR OFFICE AT CUMMINS ROAD, TELCO TOWNSHIP, JAMSHEDPUR - 831004, JHARKHAND, INDIA HEREBY SOLEMNLY AFFIRM AND DECLARE AS UNDER: 1. THAT I AM BACHELOR OF COMMERCE , BY QUALIFICATION WORKING WITH TATA CUMMINS PVT. LTD. (HEREINAFTER REFERRED TO AS THE COMPANY) AS ASSOCIATE(FINANCE) 2. THAT AS PART OF MY JOB RESPONSIBILITIES, I AM ALSO REQUIRED TO ASSIST IN THE IN COME - TAX MATTERS OF THE COMPANY. 3. THAT THE APPEAL FILED BY THE COMPANY BEFORE THE COMMISSIONER OF INCOME - TAX (APPEALS) FOR THE ASSESSMENT YEAR 2011 - 2012 (ALONGWITH THE APPEALS FOR THE OTHER YEAR(S)) WAS INITIALLY FIXED FOR HEARING BEFORE THE COMMISSIONE R OF INCOME - TAX (APPEALS) ON 16 AUGUST 2017 VIDE A NOTICE DATED 09 AUGUST 2017 ISSUED BY THE COMMISSIONER OF INCOME - TAX (APPEALS) ['CIT(A)']. 4. THAT THIS NOTICE WAS RECEIVED BY THE COMPANY ONLY ON 14 AUGUST 2017 . THE NEXT DAY WAS A PUBLIC HOLIDAY, BEING 1 5 TH AUGUST. 5. THAT ON THE APPOINTED DATE, MYSELF, SUSHIL SRIVASTAVA - ASSOCIATE (FINANCE), OF THE COMPANY APPEARED BEFORE THE CIT(A) ALONGWITH A LETTER DATED 14 AUGUST 2017 POINTING OUT THEREIN THAT THE NOTICE FIXING THE HEARING ON 16 AUGUST 2017, WAS REC EIVED BY THE COMPANY ONLY ON 14 AUGUST 2017, AND HENCE THE DETAILS / PARTICULARS REQUIRED FOR ARGUING THE MATTER WERE UNDER COMPILATION. IN THE SAID LETTER, A REQUEST WAS MADE TO THE CIT(A) TO ADJOURN THE HEARING AND RE - FIX IT FOR HEARING 5 ITA NO S . 347 & 349 - 351 /RAN/ 201 7 EITHER ON 08 SEPT EMBER 2017 OR ON 15 SEPTEMBER 2017 - A PHOTOCOPY OF THE SAID LETTER DATED 14 AUGUST 2017 IS ATTACHED HEREWITH - REFER 'APPENDIX - A'. 6. THAT IGNORING THE REQUEST FOR SPECIFIC DATES MADE, THE CIT(A) RE - FIXED THE APPEAL HEARING ON 22 AUGUST 2017 . 7. THAT SINCE THE WRITTEN SUBMISSIONS TO BE FILED IN THE MATTER WERE STILL UNDER COMPILATION, ON 22 AUGUST 2017, MS. NIKITA SINGHANNIA FROM THE AUTHORISED REPRESENTATIVES ['AR'] OF THE COMPANY VIZ., DELOITTE HASKINS AND SELLS LLP APPEARED BEFORE THE CIT(A) AND REQ UESTED FOR AN ADJOURNMENT VIDE AN ADJOURNMENT APPLICATION DATED 22 AUGUST 2017. A PHOTOCOPY OF THE LETTER DATED 22 AUGUST 2017 FILED WITH THE CIT(A) IS ATTACHED HEREWITH - REFER 'APPENDIX - B'. 8. THAT PURSUANT TO THIS REQUEST, THE CIT(A) DID NOT GIVE ANY NEXT DATE OF HEARING, HOWEVER, IT WAS ORALLY COMMUNICATED TO THE AR THAT A FRESH NOTICE RE - FIXING THE HEARING WILL BE ISSUED. 9. THAT THEREAFTER ON 04 OCTOBER 2017, THE COMPANY RECEIVED A NOTICE DATED 27 SEPTEMBER 2017 FIXING A HEARING OF THE APPEAL ON THE SAME DATE I.E. 04 OCTOBER 10. THAT SINCE, THE AR OF THE APPELLANT WHO WAS TO ARGUE THE APPEAL IS STATIONED IN MUMBAI AND THE NOTICE FIXING A HEARING ON 04 OCTOBER 2017 WAS RECEIVED ON THE SAME DATE, MR. SUSHIL SHRIVASTAVA FROM THE COMPANY APPEARED BE FORE THE CIT(A) ON THE APPOINTED DATE AND REQUESTED FOR AN ADJOURNMENT. A PHOTOCOPY OF THE LETTER DATED 04 OCTOBER 2017 FILED WITH THE CIT(A) ON THE SAME DATE INVITING HIS ATTENTION TO THE AFORESAID FACT IS FORWARDED HEREWITH - REFER 'APPENDIX - C'. 11. T HAT PURSUANT TO THIS REQUEST TOO, THE CIT(A) DID NOT GIVE ANY NEXT DATE OF HEARING, HOWEVER, IT WAS ORALLY COMMUNICATED THAT A FRESH NOTICE RE - FIXING THE HEARING WILL 12. THAT IN LIGHT OF THE FOREGOING FACTS, THE STATEMENT MADE BY THE CIT(A) IN HIS ORDER DATED 17 OCTOBER 2017 (ON THE 1 ST PAGE) THAT 'SHRI SUSHIL KR. SRIVASTAVA, ASSISTANT MANAGER (FINANCE) ATTENDED AND MADE WRITTEN SUBMISSION AND ORAL ARGUMENTS' IS INCORRECT. I FURTHER DECLARE THAT THE ABOVE STATEMENT IS TRUE AND CORRECT TO THE BEST OF MY KN OWLEDGE AND BELIEF. PLACE____ NAME OF THE PERSON SIGNING THE AFFIDAVIT DEPONENT BEFORE ME NOTARY AND PRAYED FOR AN OPPORTUNITY TO REPRESENT ITS CASE BEFORE THE CIT(A). 6 ITA NO S . 347 & 349 - 351 /RAN/ 201 7 8 . CONTRA, LD. DR SUPPORTED THE ORDERS OF LOWER AUTHORITIES AND VEHEMENTLY OBJE CTED TO THE SUBMISSIONS MADE BY THE AR OF THE ASSESSEE IN RESPECT OF NON - APPEARANCE. 9 . WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE SOLE DISPUTED ISSUE RAISED BY THE ASSESSEE IS WITH RESPECT TO THE EX - PARTE ORDER PASSED BY T HE CIT(A) AND ALSO FILED AN AFFIDAVIT FOR EXPLAINING THE REASONS FOR NON - APPEARANCE BEFORE THE CIT(A) AND LD. AR ALSO SUBMITTED THAT IT IS BONAFIDE AND GENUINE DIFFICULTY THAT THE ASSESSEE COULD NOT MAKE PROPER REPRESENTATION BEFORE THE CIT(A) AND PRAYED F OR AN OPPORTUNITY. WE CONSIDERING THE OVERALL ASPECTS, CIRCUMSTANCES AND SUBMISSIONS MADE BEFORE US BY WAY OF AN AFFIDAVIT, ARE OF THE OPINION THAT THE ASSESSEE SHOULD BE PROVIDED ON MORE OPPORTUNITY TO REPRESENT ITS CASE BEFORE THE CIT(A). WE, THEREFORE, SET ASIDE THE ORDER OF LOWER AUTHORITIES AND RESTORE THE ENTIRE DISPUTED ISSUE S TO THE FILE OF CIT(A), WHO SHALL PASS ORDER AFTER CONSIDERING THE SUBMISSIONS MADE BY THE ASSESSEE. FURTHER THE ASSESSEE SHALL COOPERATE IN SUBMITTING THE INFORMATION FOR EARLY DISPOSAL OF THE APPEAL. ACCORDINGLY, THE GROUNDS OF APPEAL OF THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 10 . SIMILARLY IN APPEALS FOR ASSESSMENT YEARS 2012 - 2013 & 2013 - 2014, FACTS AND ISSUES ARE SAME AS TO THE APPEAL FOR ASSESSMENT YEAR 2011 - 2012. WE, THEREFORE ALSO REMIT THE ISSUE S RAISED IN THE APPEALS IN ITA NOS.350&351/RAN/2017 TO THE FILE OF CIT(A) AS PER OUR OBSERVATIONS MADE 7 ITA NO S . 347 & 349 - 351 /RAN/ 201 7 IN THE APPEAL FOR ASSESSMENT YEAR 2011 - 2012 IN ITA NO.349/RAN/2017 AND ALLOW THESE APPEALS FOR STATISTICAL PURPOSES. 11 . THUS, THE APPEALS FOR ASSESSMENT YEARS 2011 - 12, 2012 - 13 & 201 3 - 14 (ITA NOS.349 TO 351/RAN/2017) ARE ALLOWED FOR STATISTICAL PURPOSES. 12 . NOW, WE SHALL TAKE APPEAL FOR ASSESSMENT YEAR 2008 - 2009 IN ITA NO.347/RAN/2017, WHEREIN THE ASSESSEE HAS TAKEN F OLLOWING GROUNDS OF APPEAL : - 1 : 0 RE.: NON - GRANTING OF DEPRECIATION ON THE INTANGIBLE ASSETS: 1:1 THE COMMISSIONER OF INCOME - TAX (APPEALS) HAS ERRED IN NOT DIRECTING THE ASSESSING OFFICER TO GRANT THE APPELLANT DEPRECIATION ON THE AMOUNT OF TECHNICAL KN OW - HOW FEES PAID BY THE APPELLANT IN THE EARLIER YEARS WHICH PAYMENT HAS BEEN TREATED AS CAPITAL EXPENDITURE TOWARDS ACQUISITION OF INTANGIBLE ASSETS IN THE RESPECTIVE YEARS. 1: 2 THE APPELLANT SUBMITS THAT CONSIDERING THE FACTS AND CIRCUMSTANCES OF ITS CA SE AND THE LAW PREVAILING ON THE SUBJECT IT IS ENTITLED TO CLAIM DEPRECIATION ON THE AMOUNTS TREATED AS CAPITAL EXPENDITURE TOWARDS ACQUISITION OF INTANGIBLE ASSETS IN THE EARLIER YEAR(S) AND THE NON - GRANTING OF DEPRECIATION THEREON BY THE ASSESSING OFFICE R FOR THE YEAR UNDER CONSIDERATION IS MISCONCEIVED, INCORRECT AND ILLEGAL AND THE COMMISSIONER OF INCOME - TAX (APPEALS) OUGHT TO HAVE SPECIFICALLY DIRECTED THE ASSESSING OFFICER TO GRANT THE APPELLANT DEPRECIATION THEREON IN ACCORDANCE WITH LAW. 1 :3 THE AP PELLANT SUBMITS THAT ASSESSING OFFICER BE DIRECTED TO GRANT DEPRECIATION ON THE AMOUNTS TREATED AS CAPITAL EXPENDITURE TOWARDS ACQUISITION OF INTANGIBLE ASSETS IN THE EARLIER YEAR(S) AND TO RE - COMPUTE ITS TOTAL INCOME AND TAX THEREON ACCORDINGLY. 2 : 0 RE. : GENERAL: 2 :1 THE APPELLANT CRAVES LEAVE TO ADD, ALTER, AMEND AND/OR SUBSTITUTE AND/OR MODIFY IN ANY MANNER WHATSOEVER MODIFY ALL OR ANY OF THE FOREGOING GROUNDS OF APPEAL AT OR BEFORE THE HEARING OF THE APPEAL. 13 . BRIEF FACTS OF THE CASE ARE THAT THE A SSESSEE HAS FILED THE RETURN OF INCOME ELECTRONICALLY ON 30.09.2008 FOR THE ASSESSMENT YEAR 2008 - 09 WITH 8 ITA NO S . 347 & 349 - 351 /RAN/ 201 7 TOTAL INCOME OF RS.1,53,74,26,429/ - AND THE RETURN OF INCOME WAS PROCESSED U/S.143(1) OF THE ACT. SUBSEQUENTLY THE CASE WAS SELECTED FOR SCRUTINY AND N OTICE U/S.143(2) & 142(1) WERE ISSUED TO THE ASSESSEE. IN COMPLIANCE THE AR OF THE ASSESSEE APPEARED FROM TIME TO TIME AND FILED THE DOCUMENTS. THE AO ON PERUSAL OF THE TAX AUDIT REPORT AND FINANCIAL STATEMENT THE DEALT ON THE GROSS PROFIT MARGIN AND DIMI NUTION OF 0.46% IN THE NP MARGIN. THE AO ALSO CONSIDERED THE BOOKS OF ACCOUNTS OF THE ASSESSEE AND ASSESSED THE TOTAL INCOME AT RS.153,74,26,430/ - AND PASSED ORDER U/S.143(3) OF THE ACT, DATED 23.12.2011. 14 . AGGRIEVED BY THE ASSESSMENT ORDER, THE ASSESSEE HAS FILED AN APPEAL WITH THE CIT(A). IN THE APPELLATE PROCEEDINGS LD. AR OF THE ASSESSEE ARGUED THE GROUNDS AND SUBMITTED THAT THE AO FAILED TO GRANT THE STATUTORY CLAIM OF DEPRECIATION U/S.32(1)(II) IN RESPECT OF WDV OF THE INTANGIBLE ASSET BEING TECHNI CAL KNOWHOW, DRAWINGS & DESIGNS ACQUIRED FORM CUMMINS INC. USA AND FURTHER RAISED ADDITIONAL GROUND OF APPEAL IN RESPECT OF CLAIM OF DEPRECIATION, WHEREAS THE CIT(A) HAVING CONSIDERED THE GROUNDS RAISED BY THE ASSESSEE AND THE FINDINGS OF AO AND THE SUBMI SSIONS OF ASSESSEE FILED DURING THE COURSE OF APPELLATE PROCEEDINGS, DEALT ON THE DISPUTED ISSUE AND RELIED ON THE JUDICIAL DECISIONS REFERRED AT PAGE 5 TO 13 AND ALSO CALLED FOR A REMAND REPORT IN RESPECT OF SUBMISSION MADE BY THE ASSESSEE. THE CIT(A) FOU ND THAT THE ISSUE OF CLAIM OF THE DEPRECIATION U/S.32(1)(III) OF THE ACT HAS BEEN RAISED FOR THE FIRST TIME 9 ITA NO S . 347 & 349 - 351 /RAN/ 201 7 DURING THE APPELLATE PROCEEDING AND THEREFORE, THE APPEAL OF THE ASSESSEE IS NOT MAINTAINABLE AND DISMISSED THE SAME. 1 5. AGGRIEVED BY THE ORDER O F CIT(A), THE ASSESSEE HAS FILED AN APPEAL BEFORE THE TRIBUNAL. 16 . LD. AR BEFORE US SOUGHT AN ADJOURNMENT AND THE SAME WAS REJECTED. LD. AR SUBMITTED THAT THE ASSESSEE HAS FILED ADDITIONAL GROUND OF CLAIM OF THE DEPRECIATION U/S.32(1)(III) OF THE ACT, WH ICH WA S NOT ADJUD ICATED BY THE CIT(A). LD.AR OF THE ASSESSEE SUBMITTED THAT THE ASSESSEE IS ENTITLED TO CLAIM DEPRECIATION ON THE AMOUNTS TREATED AS CAPITAL EXPENDITURE TOWARDS ACQUISITION OF INTANGIB LE ASSETS IN THE EARLIER YEAR. TO SUPPORT HIS CLAIM, LD. AR PLACED RELIANCE ON THE DECISION OF HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. PRUTHVI BROKERS & SHAREHOLDERS PRIVATE LIMITED, 252 CTR 151 AND PRAYED THAT THE ASSESSEE BE GRANTED CLAIM OF DEPRECIATION. 17 . CONTRA, LD. DR SUPPORTED THE ORDERS OF LO WER AUTHORITIES . 18 . WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. THE SOLE DISPUTED ISSUE RAISED BY THE ASSESSEE IS WITH RESPECT TO NON - GRANT OF CLAIM OF DEPRECIATION. WE FIND THAT THIS GROUND DOES NOT EMANATE FROM THE ASSESSMENT ORDER AND THE AO HAS ACCEPTED THE RETURN OF INCOME AND THE ASSESSEE HAS RAISED THIS GROUND AS AN ADDITIONAL GROUND BEFORE THE CIT(A). THE CIT(A) AFTER CONSIDERING THE SUBMISSIONS OF ASSESSEE, FINDINGS OF AO AND PROVISIONS OF LAW, CONCLUDED THAT APPEAL O F THE ASSESSEE IS NOT MAINTAINABLE AND DISMISSED THE APPEAL. HOWEVER, THE ADDITIONAL GROUND RAISED BY THE ASSESSEE, IN OUR OPINION, HAS TO BE 10 ITA NO S . 347 & 349 - 351 /RAN/ 201 7 DISCUSSED BY THE CIT(A). IN ABSENCE OF THE SAME, WE IN THE INTEREST OF JUSTICE AND FAIRPLAY, REMIT THIS ISSUE TO THE FILE OF CIT(A), WHO SHALL VERIFY AND EXAMINE THE CLAIM OF THE ASSESSEE AND PASS A SPEAKING ORDER AFTER PROVIDING ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE. ACCORDINGLY, WE ALLOW THE APPEAL OF THE ASSESSEE FOR STATISTICAL PURPOSES. 19 . IN THE RES ULT, ALL THE FOUR APPEALS OF THE ASSESSEE I.E. ITA NOS.34 7 , 349, 350, 351/RAN/2017 ARE ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 22 / 05 /201 8 SD/ - SD/ - ( N.S.SAINI ) ( PAVAN KUMAR GADALE ) ACCOUNTANT MEMBER JUDICIAL MEMBER RANCHI , DATED 22 / 05 /201 8 PRAKASH KUMAR MISHRA , SR. PS COPY OF THE ORDER FORWARDED TO : BY ORDER, //TRUE COPY// SR.PS, ITAT, RANCHI 1. THE APPELLANT TATA CUMMINS PRIVATE LIMITED ( FORMERLY KNOWN AS TATA CUMMINS LIMITED), CUMMINS ROAD, TELCO TOWNSHIP, JAMSHEDPUR - 831004, JHARKHAND 2. THE RESPONDENT 3. THE CIT(A) CONCERNED 4. CIT , CONCERNED 5. DR, ITAT, RANCHI 6. GUARD FILE.