DCIT, Moradabad V. M/s HTE Enterprises (P) Ltd., Moradabad

ITA 4093/DEL/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 8153 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 9 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-04-2016
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 18-04-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 03-07-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: T VASANTHAN
• Assessee Lawyers: PUNEET SACHDEV
• Keywords: Depreciation; Revised return
• Section: 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C , NEW DELHI BEFORE SHRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER AND SHRI SUDHANSHU SRIVASTAVA, JUDICIAL MEMBER ITA NO. 4093 AND 4094 /DEL/201 3 AY: 200 5 - 06 AND 2006 - 07 DY.CIT, CIRCLE II VS. HTE ENTERPRISES (P) LTD. MORADABAD LAJPAT NAGAR MORADA BAD PAN: AAACH 7414 A (APPELLANT) (RESPONDENT) APPELLANT BY : SH. T. VASANTHAN, SR.D.R. RESPONDENT BY : SH. PUNEET SACHDEV, C.A. ORDER PER J. SUDHAKAR REDDY, ACCOUNTANT MEMBER BOTH THESE APPEALS ARE FILED BY THE REVENUE DIRECTED AGAINST THE ORDERS OF THE LD.CIT(A) , BAREILLY DATED 17.4.2013 PERTAINING TO THE ASSESSMENT YEARS (A.Y.) 2005 - 06 AND 2006 - 07 RESPECTIVELY. 2. FACTS IN BRIEF : - THE ASSESSEE IS A COMPANY AND IT FILED ITS RETURN OF INCOME ON 10.10.2005 F OR THE A.Y. 2005 - 06 AND ON 21.11.2006 FOR THE A.Y. 2006 - 07. IN THESE RETURNS OF INCOME THE ASSESSEE HAS NOT MADE ANY CLAIM OF DEPRECIATION. IT SHOULD BE MENTIONED THAT FOR THE EARLIER A.Y. 2003 - 04, THE CLAIM OF DEPRECIATION WAS REJECTED ON THE GROUND THA T THE FACTORY IN QUESTION HAS BEEN SHUT DOWN. THE ASSESSEE ACCEPTED THIS FINDING OF THE A.O. THAT IT IS NOT ELIGIBLE FOR CLAIM OF DEPRECIATION FOR THE A.Y. 2003 - 04. 2.1. FOR THE IMPUGNED A.Y. THE ASSESSEE MADE AN APPLICATION U/S 154 OF THE ACT ON 31.12.2 009 CLAIMING DEPRECIATION U/S 132(2) OF THE ACT. THE A.O. REJECTED THE CLAIM ON TWO GROUNDS I.E. (A) THE MACHINERY WAS NOT PUT TO USE, AND (B) THE ASSESSEE HAS NOT CLAIMED DEPRECIATION IN ITS RETURN OF INCOME AND HENCE CANNOT BE ALLOWED SUO MOTO. ITA 4093 AND 4094/DEL/2013 A.Y. 2005 - 06 AND 2006 - 07 HTE ENTERPRISES (P) LTD., MORADABAD 2 2.2. ON APPEAL THE FIRST APPELLATE AUTHORITY ALLOWED THE CLAIM ON THE GROUND THAT TWO TRIAL RUNS OF THE FACTORY WERE MADE ON 17.1.99 AND 1.3.99. 3. WE HAVE HEARD SHRI T.VASANTHAN, LD.SR.D.R. ON BEHALF OF THE REVENUE AND SHRI PUNEET SACHDEV, THE LD.COUNSEL FOR THE ASSESSEE. 3.1. ON A CAREFUL CONSIDERATION OF THE FACTS AND CIRCUMSTANCES OF THE CASE, ORDERS OF LOWER AUTHORITIES AND CASE LAWS CITED, WE HOLD AS FOLLOWS. 4 . W E ARE OF THE CONSIDERED OPINION THAT THE FIRST APPELLATE AUTHORITY WAS IN ERROR IN ALLOWING THE APPEAL OF THE ASSESSEE. ADMITTEDLY NO CLAIM HAS BEEN MADE BY THE ASSESSEE IN ITS RETURN OF INCOME. THE HON BLE SUPREME COURT IN THE CASE OF GOETZ INDIA P. LTD. VS. CIT (2006) REPORTED IN 28 4 ITR 323 (SC) HELD THAT A DEDU CTION CLAIMED BY WAY OF A LETTER BEFORE THE ASSESSING OFFICER, WAS TO BE DISALLOWED ON THE GROUND THAT THERE WAS NO PROVISION UNDER THE ACT TO MAKE AMENDMENT IN THE RETURN WITHOUT FILING A REVISED RETURN. IN THIS CASE ON HAND, NO CLAIM WAS MADE BY THE ASS ESSEE IN ITS RETURN OF INCOME. 4 .1. APPLYING THE PROPOSITION LAID DOWN IN THE ABOVE CITED CASE, WE HAVE TO HOLD THAT NO CLAIM CAN BE MADE BY WAY OF A PETITION U/S 154 OF T HE ACT. IN ANY EVENT THESE ARE DEBATABLE ISSUES AND WOULD NOT FALL WITHIN THE KEN O F S.154 OF THE ACT. HENCE THE LD.CIT(A) S ORDERS ARE ERRONEOUS AND NOT IN ACCORDANCE WITH LAW. THUS WE RESTORE THE ORDER OF THE A.O. 5 . IN THE RESULT BOTH THE APPEALS OF THE REVENUE ARE ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 25 TH APRIL, 2016. SD/ - SD/ - (SUDHANSHU SRIVASTAVA) (J. SUDHAKAR REDDY) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: THE 25 TH APRIL, 2016 MANGA ITA 4093 AND 4094/DEL/2013 A.Y. 2005 - 06 AND 2006 - 07 HTE ENTERPRISES (P) LTD., MORADABAD 3 COPY FORWARDED TO: - 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(A) 5 . DR, ITAT - TRUE COPY - BY ORDER, ASSISTANT REGISTRAR