SHRI Krishna Dubey, Indore V. THE DCIT 2(3), Indore

ITA 586/IND/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 5791 (ITAT-INDORE)
• Duration Of Justice: 3 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-09-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 01-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MOHMD JAVED
• Assessee Lawyers: R L AKOTIYA
• Keywords: Business income; Depreciation; Rectification of order; Revised return
• Section: 139(5); 32; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH, INDORE BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER AND SHRI O. P. MEENA, ACCOUTANT MEMBER I.T. A. NO.586/IND/2016 ASSESSMENT YEAR: 2009-10 KRISHNA DUBEY 20/3/MANORAMGANJ INDORE PAN: AGMPD75646C VS. ASSISTANT COMMISSIONER OF INCOME TAX CPC APPELLANT RESPONDENT APPELLANT BY SHRI R.L AKOTIYA CA RESPONDENT BY SHRI MOHMD. JAVED SR. DR DATE OF HEARING 22.08.2016 DATE OF PRONOUNCEMENT 22.08.2016 ORDER PER O.P.MEENA, ACCOUTANT MEMBER. THIS APPEAL BY THE ASSESSEE FOR THE ASSESSMENT YEAR 2009-10 FILED AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS)-32 , NEW DELHI, HOLDING CONCURRENT CHARGE OF COMMISSIONER OF INCOME TAX (A) -I, INDORE, DATED 15.03.2016. I.T.A.NO.586/IND/2016/A.Y.09-10/KRISHNA DUBEY PAGE 2 OF 6 2. GROUND NO. 1 TO 4 STATES THAT THE LD. CIT (A) FAILED TO CONSIDER THE CLAIM OF DEPRECIATION MADE BY THE ASSESSEE THAT IT IS PERMIS SIBLE U/S. 32 OF THE ACT AND IT WAS CHARGED TO PROFIT & LOSS ACCOUNT AND REFLECTED IN COMPUTATION OF TOTAL INCOME. IT IS BEING TECHNICAL MISTAKE DUE TO CLERICA L ERROR WHILE FILING RETURN OF INCOME. 3. BRIEFLY STATED FACTS OF THE CASE ARE THAT, THE ASSE SSEE, WHILE, FILING E-RETURN OF INCOME, HAS COMMITTED A CLERICAL MISTAKE, BECAUSE OF WHICH, DEPRECIATION THOUGH REFLECTED IN THE PROFIT & LOSS ACCOUNT BUT L EFT TO SEPARATELY DISCLOSED IN THE SCHEDULE OF DEPRECIATION AND DM IN THE E-RETURN. THE ASSESSEE, ACCORDINGLY FILED A RECTIFICATION APPLICATION BEFORE THE AO, BU T THE AO REJECTED THE VERSION OF THE ASSESSEE, ON THE GROUND, THAT DEPRECIATION CLAI M IS NOT FIND PLACE IN THE RETURN OF INCOME. 4. THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE LD . CIT (A). THE LD. CIT (A) OBSERVED THAT THE A.R. OF ASSESSEE HAS ADMITTED THA T THERE WAS NO MISTAKE IN THE ORDER INTIMATION UNDER SECTION 143(1) (A). NOR THE ASSESSEE HAS REVISED THE RETURN NOR ENTERED THE DEPRECIATION AMOUNT WHILE FILING OF THE RETURN. 5. THE LEARNED AUTHORIZED REPRESENTATIVE, FOR THE ASSE SSEE, SUBMITTED THAT THE ASSESSEE HAS FILED E-RETURN OF INCOME, SHOWING B USINESS INCOME OF RS.3,32,285/- AFTER DEDUCTING DEPRECIATION CHARGED T O PROFIT & LOSS ACCOUNT, AMOUNTING TO RS. 3,32,782/-AND ADDED SUO-MOTO RS.6026 /- BEING DEPRECIATION ON I.T.A.NO.586/IND/2016/A.Y.09-10/KRISHNA DUBEY PAGE 3 OF 6 MOTOR CAR FOR PERSONAL USE. THE AMOUNT OF DEPRECIAT ION OF RS.3,82,782/- COULD NOT BE DISCLOSED SEPARATELY IN THE COMPUTATION OF T OTAL INCOME AND IN THE DATA ENTRY WHILE FILING E-RETURN AND THE SAME MISTAKE OCCU RRED WHILE RECTIFICATION APPLICATION FILED. HENCE, THE CLAIM OF DEPRECIATION WAS NOT ALLOWED IN PROCESSING RETURN OF INCOME BY CPC, BANGALORE, IN THE INTIMATI ON ISSUED UNDER SECTION 143(1) (A) AND EVEN AND EVEN IN RECTIFICATION ORDER PASSED U/S.154 OF THE ACT. THE LD. A.R. FURTHER SUBMITTED THAT THE MISTAKE OF NOT FILIN G THE SCHEDULE OF DEPRECIATION AND DPM TO CLAIM DEPRECIATION OF RS. 3,32,782/- OCCU RRED THROUGH OVERSIGHT AND BEING A TECHNICAL MISTAKE. THE LD. A.R. CONTENDED T HAT THE DEPRECIATION AMOUNTING TO RS.3, 32,782/- HAS BEEN CHARGED TO INCO ME & EXPENDITURE ACCOUNT, BALANCE SHEET, AND NET INCOME OF RS.3,26,259/- WAS S HOWN IN COMPUTATION OF TOTAL INCOME AS BUSINESS INCOME. THE LD. A. R. RELI ED IN THE CASE OF ICDS LTD. VS. CIT (2013) 350 ITR 527 (SC) TO CONTEND THAT DEPRECI ATION IS MANDATORY ALLOWABLE ON THAT ASSET IF IT IS OWNED AND USED FOR BUSINESS PURPOSE AS PER REQUIREMENT OF SECTION 32 OF THE ACT. THE LD. A.R. SUBMITTED THAT IT IS NOT CORRECT TO SAY BY THE LD. CIT (A) THAT THE A. R. OF THE ASSESSEE ADMITTED THA T THERE WAS NO MISTAKE IN THE ORDER UNDER SECTION 143(1)(A). IF IT COULD HAVE ADM ITTED, THEN THERE WOULD HAVE BEEN NO RECTIFICATION APPLICATION OR APPEAL AND THE RE WAS NO NEED TO REVISE RETURN. THE ASSESSEE COULD NOT FILE REVISED RETURN OF INCOME UNDER SECTION 139(5) AS THE PRESCRIBED TIME LIMIT IN THIS CASE WAS EXPIR ED. IN SUPPORT OF HIS CONTENTION, I.T.A.NO.586/IND/2016/A.Y.09-10/KRISHNA DUBEY PAGE 4 OF 6 THE LD. A. R. HAS FILED INCOME & EXPENDITURE ACCOUN T, BALANCE SHEET, ITR-V, COMPUTATION OF TOTAL INCOME, WHICH ARE PLACED IN TH E PAPER BOOK. 6. THE LD. SR. D.R. RELIED UP ON THE ORDERS OF LOWER AUTHORITIES. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND HAVE PERUSE D THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE ASSESSEE HAS DISCLOSED TOTAL INCOME AT RS.2, 71, 540/- IN COLUMN 3 OF ACKNOWLEDGEMENT OF ITR- V, WH ICH COMES AFTER CLAIMING DEPRECIATION. THUS AS PER ITR- V, THE ASSESSEE HAS SHOWN RETURNED INCOME AT RS.2,71,540/- AFTER CLAIMING DEPRECIATION OF RS. 3,3 2,782/- IN INCOME & EXPENDITURE ACCOUNT. IT IS ALSO SEEN THAT THE ASSES SEE HAS DEBITED DEPRECIATION OF RS. 3, 32,782/- IN THE PROFIT & LOSS ACCOUNT, WHICH IS REFLECTED IN COLUMN 42 OF ITR 4 AND REFLECTED IN COLUMN OF BALANCE SHEET OF ITR-4. THE AMOUNT OF DEPRECIATION IS ALSO SHOWN IN BUSINESS COMPUTATION AT COLUMN 11 OF SCHEDULE OF BUSINESS AND PROFESSION, AND ACCORDINGLY, INCOME CHARGEABLE TO T AX IS SHOWN AT RS.3,32,285/- AND AFTER DEDUCTION OF DEPRECIATION AND OTHERS THE GROSS TOTAL INCOME IS SHOWN AT RS. 3,71,554/- WHICH IS ALSO REFLECTED IN ACKNOWLEDG EMENT OF ITR-V OF E-RETURN. THEREFORE, JUST BECAUSE DEPRECIATION IS LEFT OUT TO BE ENTERED INTO RELEVANT COLUMN 26 OF SCHEDULE OF BUSINESS AND PROFESSION & COMPUTATION OF TOTAL INCOME THROUGH OVERSIGHT OR AS A CLERICAL ERROR, IT CAME T O BE ADDED TO RETURNED INCOME. THIS DOES NOT MEAN THAT THE ASSESSEE HAS NOT CLAIME D DEPRECIATION. THE ASSESSEE HAS MADE LEGITIMATE CLAIM BECAUSE OF CLERICAL ERROR CANNOT, BE DENIED TO THE I.T.A.NO.586/IND/2016/A.Y.09-10/KRISHNA DUBEY PAGE 5 OF 6 ASSESSEE. THE CLAIM OF THE ASSESSEE IS DISCERNIBLE ON THE FACE OF RETURN; THEREFORE, IT IS A MISTAKE APPARENT FROM RECORD AND IS DULY REC TIFIABLE UNDER THE PROVISIONS OF SECTION 154 OF THE ACT. WE FIND THAT IT IS THE NOT A CASE OF THE REVENUE THAT THE DEPRECIATION IS NOT ALLOWABLE. THE INCOME TAX IS CH ARGEABLE ON CORRECT INCOME AND NOT ON ARTIFICIAL ENHANCED INCOME DUE TO SOME O F THE COLUMN PRESCRIBED IN THE SOFTWARE OF E-RETURN INADVERTENTLY REMAINED TO B E FILLED IN, WHEREAS, THE CLAIM OF THE DEPRECIATION FIND MENTION IN THE E-RETU RN ITSELF ALBEIT IN ANOTHER COLUMN. IN VIEW OF THESE CIRCUMSTANCES, WE ARE OF T HE CONSIDERED OPINION, THAT THE AO WAS NOT JUSTIFIED IN REJECTING THE LEGITIMAT E CLAIM OF THE ASSESSEE. WE, THEREFORE, DIRECT THE AO TO ALLOW THE CLAIM OF DEPR ECIATION OF RS.3,32,782/- AND REVISED THE INCOME ACCORDINGLY. THUS, THE ABOVE GRO UNDS OF APPEAL ARE, ALLOWED. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS, ALLOW ED. THE ORDER PRONOUNCED IN THE OPEN COURT ON 22.08.201 6. SD/- (D.T.GARASIA) JUDICIAL MEMBER SD/- (O.P.MEENA) ACCOUNTANT MEMBER DATED: 7TH SEPTEMBER 2016. OPM* I.T.A.NO.586/IND/2016/A.Y.09-10/KRISHNA DUBEY PAGE 6 OF 6