M/s. Satia Synthetics Ltd., Muktsar V. The Joint Commissioner of Income tax, Bathinda

ITA 607/ASR/2013

• Counselvise Citation: 60720914 RSA 2013
• Duration Of Justice: 3 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-01-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2009-2010
• Appeal Filed On: 04-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMRIK CHAND
• Assessee Lawyers: PADAM BAHL
• Keywords: Depreciation; Additional depreciation; Revised return
• Section: 43B; 142(1); 32

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. B.P. JAIN, ACCOUNTANT MEMBER I.T.A. NO. 592(ASR)/2013 ASSESSMENT YEAR: 2009-10 PAN: AAECS3237N THE ASSISTANT COMMISSIONER OF VS. M/S SATIA SYNTH ETIC LTD. INCOME TAX, CIRCLE-II, BATHINDA VILL. LUBA NIWALI, MUKTSAR (APPELLANT) (RESPONDENT) AND I.T.A. NO. 607(ASR)/2013 ASSESSMENT YEAR: 2009-10 PAN: AAECS3237N M/S SATIA SYNTHETIC LTD. VS. THE JOIN COMMISSIONER OF VILL. LUBANIANWALI, MUKTSAR INCOME TAX, CIRCLE-II, BATHINDA (APPELLANT) (RESPONDENT) ASSESSEE BY: SH. PADAM BAHL, CA DEPARTMENT BY: SH. AMRIK CHAND, DR DATE OF HEARING: 15.01.2014 DATE OF PRONOUNCEMENT: 27.01.2014 ORDER PER BENCH 1. THESE ARE THE CROSS APPEALS FILED BY THE REVENUE AS WELL AS BY THE ASSESSEE AGAINST THE ORDER DATED 05.07.2013 PAS SED BY LEARNED 2 I.T.A. NOS. 592 & 607(ASR)/2013 ASSESSMENT YEAR: 2009-10 CIT(A), BATHINDA, FOR THE ASSESSMENT YEAR 2009-10. GROUNDS OF APPEAL TAKEN BY THE REVENUE IN I.T.A. NO. 592(ASR)/2013 AR E AS UNDER: I. THE LEARNED CIT(A) HAS ERRED BOTH IN LAW AND ON FAC TS IN DELETING THE ADDITIONS OF RS. 5,00,000/- ON ACCOUNT OF CONSU MPTION OF ELECTRICITY WITHOUT CONSIDERING THE FACT THAT THE A SSESSEE HAD NO OBJECTION TO THE DISALLOWANCE ON CERTAIN DISCREPANC IES HAVING BEEN POINTED OUT IN THIS REGARD DURING THE EXAMINATION O F BOOKS AND OTHER DOCUMENTS DURING THE ASSESSMENT PROCEEDINGS. II. THAT LEARNED CIT(A) HAS ERRED BOTH IN LAW AND ON FA CTS IN ALLOWING THE EXCESS CLAIM OF RS. 18,28,034/- ON ACCOUNT OF P ROVISIONS FOR GRATUITY AND RS. 8,38,238/- FOR LEAVE ENCASHMENT U/ S 43B OF THE ACT IN COMPUTATION OF INCOME BY OBSERVING THAT THE ASSESSEE HAS SIMPLY ASKED FOR ADOPTING THE CORRECT FIGURES WHICH IN FACT WAS ONLY TO RECTIFY A MISTAKE APPARENT ON RECORD AND IT DID NOT AMOUNT TO LODGING OF A FRESH CLAIM. III. THE APPELLANT CRAVES TO ADD OR AMEND ANY GROUNDS OF APPEAL BEFORE THE APPEAL IS HEARD AND DISPOSED OFF. 2. THE GROUNDS OF APPEAL TAKEN BY THE ASSESSEE IN I .T.A. NO. 607(ASR)/2013 ARE AS UNDER: I. THAT THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS ), BATHINDA HAS GROSSLY ERRED IN CONFIRMING THE ADDITION OF RS. 6,29,28,037/- MADE BY THE ASSESSING OFFICER, ON ACCOUNT OF ADDITI ON DEPRECIATION CLAIMED BY ASSESSEE U/S 32(1)(IIA) ON PLANT & MACHI NERY BY A FRESH CLAIM BEFORE THE ASSESSING OFFICER. II. THAT THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS ), BATHINDA, HAS FAILED TO APPRECIATE THAT THE ADDITIO NAL DEPRECIATION WAS A STATUTORY ALLOWANCE WHICH HAD TO BE ALLOWED, EVEN WHEN IT HAD NOT BEEN CLAIM AS PER EXPLANATION 5 TO SEC 32(1 ) OF THE INCOME TAX ACT, 1961. 3. THE FACTS RELATING TO THE ISSUE IN DISPUTE ARE T HAT THE ASSESSEE IS A LIMITED COMPANY ENGAGED IN THE BUSINESS OF MANUFA CTURING OF YARN. 3 I.T.A. NOS. 592 & 607(ASR)/2013 ASSESSMENT YEAR: 2009-10 THE ASSESSEE COMPANY FILED ITS RETURN OF INCOME FOR THE ASSESSMENT YEAR 2009-10 ELECTRONICALLY DECLARING A BUSINESS LOSS OF RS. 11,98,50,983/- FOR THE ASSESSMENT YEAR 2009-10. THE ASSESSING OFFICER ISSUED NOTICE TO THE ASSESSEE UNDER SECTION 143(2) AND 142(1) OF THE INC OME TAX ACT, 1961 (IN SHORT THE ACT) IN COMPLIANCE TO WHICH, THE AS SESSEE FURNISHED THE AUDITED ACCOUNTS OF THE COMPANY ALONG WITH OTHER DO CUMENTS AND DETAILS, AS DESIRED BY THE ASSESSING OFFICER TIME TO TIME. L ATER ON, THE ASSESSING OFFICER MADE AD-HOC DISALLOWANCE OF RS. 500000/- OU T OF ELECTRICITY EXPENSES ALLEGING THAT THERE IS VARIATION IN ELECTR ICITY CONSUMED FOR PER UNIT PRODUCTION OF FINAL PRODUCTS ON MONTHLY BASIS. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE SENT A LETTER TO THE ASSESSING OFFICER AS ON 29.11.2011 STATING THE FACT THAT THE ASSESSEE COMPANY WHILE FILING THE RETURN OF INCOME HAS INADVERTENTLY OMITT ED TO CLAIM OF ADDITIONAL DEPRECIATION ON THE PLANT AND MACHINERY IN ACCORDANCE WITH THE PROVISIONS OF SECTION 32(1)(IIA) OF THE ACT AND REQUESTED HIM TO ALLOW THE CLAIM FOR ADDITIONAL DEPRECIATION. IT WAS ALSO STATED THAT BY MISTAKE THE COMPUTATION OF ADD BACK OF UNPAID LIABILITIES U NDER SECTION 43B OF THE ACT ON ACCOUNT OF PROVISIONS OF EARNED LEAVE AND GR ATUITY HAS BEEN WRONGLY MADE, CONSEQUENTIALLY EXCESSIVE ADD BACK HA S BEEN MADE I.E. 4 I.T.A. NOS. 592 & 607(ASR)/2013 ASSESSMENT YEAR: 2009-10 RS. 18,28,034/- FOR GRATUITY; RS. 8,38,283/- FOR EA RNED LEAVE, TOTALING RS. 26,66,317/-. THEREAFTER, THE ASSESSING OFFICER REJECTED THE APPLICATION FOR CLAIM OF ADDITION DEPRECIATION AMOUNTING TO RS. 6,29,28,039, GRATUITY AT RS. 18,28,034/-AND EARNED LEAVE AT RS. 8,38,283/ - GIVING THE REASON THAT IT IS NOT ADMISSIBLE AT IT TANTAMOUNT TO REVIS ION OF RETURN WHICH COULD BE MADE BY 31.03.2011 ONLY AND PASSED THE ASSESSMEN T ORDER ON 21.12.2011. 4. BEING AGGRIEVED WITH THE ASSESSMENT ORDER, THE A SSESSEE FILED AN APPEAL BEFORE LEARNED FIRST APPELLATE AUTHORITY, WHO VIDE IMPUGNED ORDER DATED 05.07.2013 PARTLY ALLOWED THE APPEAL OF THE ASSESSEE. NOW, THE REVENUE BEING AGGRIEVED WITH THE IMPUGNED ORDER , FILED THE PRESENT APPEAL I.E. I.T.A. NO. 592(ASR)/2013 ON THE DELETIO N OF ADDITION AND ALLOWANCE OF EXCESS CLAIM AS MENTIONED IN THE GROUN DS OF APPEAL. THE ASSESSEE HAS ALSO FILED THE CROSS APPEAL I.E. I.T.A . NO. 607(ASR)/2013 ON THE GROUND THAT THE LEARNED FIRST APPELLANT AUTHORI TY HAS WRONGLY CONFIRMED THE ADDITION OF RS. 6,29,28,037/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF ADDITIONAL DEPRECIATION CLAI MED BY THE ASSESSEE U/S 32(1)(IIA) OF THE ACT ON PLANT AND MACHINERY. 5 I.T.A. NOS. 592 & 607(ASR)/2013 ASSESSMENT YEAR: 2009-10 5. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RELEVANT RECORDS AVAILABLE WITH USE, ESPECIALLY THE ORDERS PASSED BY THE REVENUE AUTHORITY AS WELL AS THE SMALL PAPER BOOK FILED BY LEARNED CO UNSEL FOR THE ASSESSEE CONTAINING PAGES FROM 1 TO 29, IN WHICH HE HAS ATTA CHED STATEMENT OF TAXABLE INCOME OF THE ASSESSEE AND DEPRECIATION CHA RT FOR ASSESSMENT YEAR 2009-10; CALCULATION OF EXCESS DISALLOWANCE U/ S 43B OF GRATUITY & LEAVE ENCASHMENT; COPY OF GRATUITY PAYABLE ACCOUNT FOR THE PERIOD 1.4.2008 TO 31.03.2010; COPY OF LEAVE ENCASHMENT EX PENSES PAYMENT FOR THE PERIOD OF 1.4.2008 TO 31.03.2010; DETAILS O F ELECTRIC UNIT CONSUMED PER KG. OF PRODUCTION; APPLICATION FOR GRA NT OF ADDITIONAL DEPRECIATION BEFORE THE ASSESSING OFFICER; AND COPY OF BOARD CIRCULAR NO. 14(XL-35) DATED 11.04.1955. AS A MATTER OF FACT , THE ASSESSEE IS LIMITED COMPANY ENGAGED IN THE BUSINESS OF MANUFACT URING OF YARN AND FILED ITS RETURN OF INCOME FOR THE ASSESSMENT YEAR IN DISPUTE, DECLARING LOSS OF RS. 11,98,50,983/-. AFTER EXAMINING THE DO CUMENTARY EVIDENCE FILED BY THE ASSESSEE AS WELL AS THE RETURN, THE AS SESSING OFFICER MADE VARIOUS ADDITIONS IN DISPUTE, WHICH INCLUDES RS. 5 LAKHS ON ACCOUNT OF CONSUMPTION OF ELECTRICITY PER UNIT FOR PRODUCTION OF FINAL PRODUCTS; RS. 18,28,034/- ON ACCOUNT OF PROVISION FOR GRATUITY; A ND RS. 8,38,283/- FOR 6 I.T.A. NOS. 592 & 607(ASR)/2013 ASSESSMENT YEAR: 2009-10 LEAVE ENCASHMENT UNDER SECTION 43B OF THE ACT IN CO MPUTATION OF INCOME. 6. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE WAS ASKED TO FURNISH MONTH-WISE DETAILS OF GOODS MANUFA CTURED VIS--VIS ELECTRICITY CONSUMPTION. IN RESPONSE TO THE SAME, THE ASSESSEE FILED ITS REPLY DATED 19.10.2011. AFTER EXAMINING THE SAME, T HE ASSESSING OFFICER FOUND THAT THERE IS A VARIATION IN THE AVERAGE CONS UMPTION OF ELECTRICITY UNIT VIS--VIS PRODUCTION SHOWN. LEARNED FIRST APPE LLATE AUTHORITY DELETED THE ADDITION IN DISPUTE BY OBSERVING THAT T HE ASSESSING OFFICER HAS NEITHER MADE COMPARATIVE ANALYSIS OF CONSUMPTIO N OF ELECTRICITY WITH IDENTICAL CASES NOR HAS HE MADE ANY COMPARATIVE ANA LYSIS WITH THE ASSESSEES OWN CASE FOR THE EARLIER YEARS, THUS, TH ERE WAS NO JUSTIFICATION IN MAKING THE ADDITION OF RS. 5 LAKHS ON AD-HOC BAS IS, WHICH THE ASSESSING OFFICER HAS MADE THIS ADDITION IN PARA 7 AT PAGE NOS. 3 AND 4. 7. AFTER HEARING BOTH THE PARTIES AND PERUSING THE ORDERS PASSED BY THE ASSESSING OFFICER AS WELL AS THE LEARNED FIRST APPELLATE AUTHORITY, WE ARE OF THE VIEW THAT LEARNED FIRST APPELLATE AUTHOR ITY HAS RIGHTLY DELETED THE ADDITION IN DISPUTE BY GIVING VERY MUCH LOGICAL REASON. THEREFORE, THE ASSESSING OFFICER HAS MADE THE ADDITION IN DISPUTE WITHOUT ANY BASIS, 7 I.T.A. NOS. 592 & 607(ASR)/2013 ASSESSMENT YEAR: 2009-10 WHICH IS NOT SUSTAINABLE IN THE EYE OF LAW AND THE LEARNED FIRST APPELLATE AUTHORITY HAS RIGHTLY DELETED THE SAME. SIMILARLY, WE UPHOLD THE IMPUGNED ORDER ON THIS VERY ISSUE BY REJECTING THE ISSUE INVOLVED IN GROUND NO. 1 IN THE APPEAL FILED BY THE REVENUE I.E . I.T.A. NO. 592(ASR)/2013. 8. AS REGARDS TO THE ADDITIONS OF RS. 18,28,034/- O N ACCOUNT OF PROVISION FOR GRATUITY AND RS. 8,38,034/- FOR LEAVE ENCASHMENT UNDER SECTION 43B OF THE ACT, WHICH THE ASSESSING OFFICER MADE THESE ADDITIONS IN PARA NO. 8 PAGE NO. 4 OF ITS ORDER BY STATING THAT THE ASSESSEE VIDE ITS REPLY DATED 29.11.2011 HAS CLAIMED ADDITIO NAL DEPRECIATION ON THE PLANT & MACHINERY AMOUNTING TO RS. 6,29,28,039/- AN D FURTHER, THE ASSESSEE HAS CLAIMED THAT BY MISTAKE IT HAS ADDED B ACK EXCESS SUM OF RS. 18,28,034/- ON ACCOUNT OF PROVISIONS FOR GRATUITY A ND RS. 8,38,283/- FOR LEAVE ENCASHMENT U/S 43B OF THE ACT IN COMPUTATION OF INCOME, THE ASSESSING OFFICER HAS HELD THAT THE CLAIM OF THE AS SESSEE IS NOT ADMISSIBLE AS IT TANTAMOUNTS TO REVISION OF RETURN WHICH COULD BE MADE BY 31.03.2011 ONLY. LEARNED FIRST APPELLATE AUTHORITY, ON THIS VERY ISSUE, HAS HELD THAT THERE WERE MISTAKES IN THE CALCULATIO NS OF GRATUITY AND EARNED LEAVE WHICH THE ASSESSING OFFICER SHOULD HAV E DONE VOLUNTARILY. 8 I.T.A. NOS. 592 & 607(ASR)/2013 ASSESSMENT YEAR: 2009-10 HE FURTHER HELD THAT IN THE COMPUTATION SHEET OF IN COME, THE ASSESSEE HAD ADDED BACK GRATUITY AND LEAVE ENCASHMENT AT RS. 22,85,832/- AND RS. 21,22,298/- RESPECTIVELY ON ACCOUNT OF UN-PAID LIAB ILITY IN VIEW OF THE PROVISIONS OF SECTION 43B OF THE ACT. HE AGAIN HEL D THAT THE ASSESSEE HAD SIMPLY ASKED FOR ADOPTING THE CORRECT FIGURES WHICH IN FACT WAS ONLY A PRAYER TO RECTIFY A MISTAKE APPARENT ON RECORD AND IT DID NOT AMOUNT TO LODGING OF A FRESH CLAIM AND HE DELETED THE ADDITIO N IN DISPUTE, AS POINTED OUT IN THE REVENUE APPEAL. WE ARE OF THE VIEW THAT THE FINDINGS GIVEN BY THE LEARNED FIRST APPELLATE AUTHORITY IS VERY MUCH AS PER LAW, THEREFORE WE ARE FULLY AGREE WITH THE SAME BY UPHOLDING THE I MPUGNED ORDER ON THIS VERY ISSUE AND DISMISS THE APPEAL FILED BY THE REVENUE I.E. I.TA. NO. 592(ASR)/2013. 9. AS REGARDS TO THE ASSESSEES APPEAL I.E. I.T.A. NO. 607(ASR)/2013, IN WHICH THE ASSESSEE HAS RAISED ONL Y ONE GROUND REGARDING ADDITION OF RS. 6,29,28,037/- MADE BY THE ASSESSING OFFICER ON ACCOUNT OF ADDITIONAL DEPRECIATION CLAIMED BY THE A SSESSEE UNDER SECTION 32(1)(IIA) OF THE ACT ON PLANT AND MACHINERY, AFTER HEARING BOTH THE PARTIES ON THE ISSUE IN DISPUTE, WE ARE OF THE VIEW THAT THE ASSESSING OFFICER HAS DISALLOWED THE CLAIM OF THE ASSESSEE FO R THE REASON THAT THE 9 I.T.A. NOS. 592 & 607(ASR)/2013 ASSESSMENT YEAR: 2009-10 ASSESSEE COULD FILE A REVISED RETURN UPTO 31.03.201 1 AND SINCE THE CLAIM IN DISPUTE IS A FRESH CLAIM AND HAS BEEN MADE AFTER SAID DATE, THE SAME WAS NOT ADMISSIBLE. LEARNED FIRST APPELLATE AUTHORI TY UPHELD THE VIEW OF THE ASSESSING OFFICER BY REJECTING THE CLAIM OF THE ASSESSEE. WE ARE OF THE VIEW THAT THE DEPRECIATION CLAIMED BY THE ASSES SEE IS A STATUTORY RIGHT OF THE ASSESSEE AND THE ASSESSEE IS ELIGIBLE TO CLA IM ON THE SAME SUBJECT TO THE CONDITIONS ENUMERATED IN SECTION 32 OF THE ACT. 10. KEEPING IN VIEW THE FACTS AND CIRCUMSTANCES OF T HE PRESENT CASE, WE ARE OF THE VIEW THAT THE ASSESSEE HAS NOT FILED ANY FRESH CLAIM AND IT IS A MATTER OF RECORD THAT THE PLANT AND MAC HINERY ARE AVAILABLE WITH THE ASSESSEE AND DURING THE COURSE OF ASSESSMENT PR OCEEDINGS, THE ASSESSEE IN ITS APPLICATION DATED 29.11.2011, HAS M ADE A CLAIM OF ADDITIONAL DEPRECIATION ON THE PLANT AND MACHINERY AMOUNTING TO RS. 6,29,28,039/-. LEARNED FIRST APPELLATE AUTHORITY HA S GIVEN HIS FINDINGS IN THE IMPUGNED ORDER REGARDING THE AFORESAID ISSUE AT PAGE NOS. 3 TO 5, THE RELEVANT PORTION IS REPRODUCED AS UNDER FOR THE SAK E OF CONVENIENCE: IN GROUND NO. 2 OF APPEAL , IT HAS BEEN CONTENDED THAT THE A.O. ERRED IN DISALLOWING THE CLAIM OF THE APPELLAN T FOR ADDITIONAL DEPRECIATION ON PLANT AND MACHINERY AMOUNTING TO RS . 6,29,28,039/- UNDER SECTION 32(1)(IIA) OF THE ACT. 10 I.T.A. NOS. 592 & 607(ASR)/2013 ASSESSMENT YEAR: 2009-10 DURING ASSESSMENT PROCEEDINGS, THE ASSESSEE LODGE D A FRESH CLAIM OF ADDITIONAL DEPRECIATION ON PLANT AND MACHI NERY AMOUNTING TO RS. 6,29,28,039/-. THE A.O. DISALLOWED THE SAME FOR THE REASON THAT THE ASSESSEE COULD FILE A REVISED RETURN UPTO 31.03.201 1 AND SINCE THE FRESH CLAIM OF ADDITIONAL DEPRECIATION HAS BEEN MADE AFTE R THE SAID DATE, THE SAME WAS NOT ADMISSIBLE. IN APPEAL BEFORE ME, IT HAS BEEN CONTENDED THAT DEPRECIATION WAS A STATUTORY ALLOWANCE AND THE ASSESSEE IS ELIGI BLE TO CLAIM THE SAME SUBJECT TO THE CONDITIONS ENUMERATED IN SECTION 32 OF THE ACT. IN THIS REGARD, RELIANCE HAS ALSO BEEN PLACED ON CERTAIN JU DGMENTS AND THE SAME HAVE ALSO BEEN CAREFULLY PERUSED AND CONSIDERED. IN THE CASE OF ITO, WARD II-(2) VS. SRI BALAJI SAGO AND STARCH PRODUCTS REPORTED AT (2012) (4) TMI 147 I.T.A.T. CHENNAI, THE RATE OF DEPRECI ATION WAS WRONGLY MENTIONED AND THE HON'BLE I.T.A.T. HELD THE MISTAKE WAS APPARENT FROM RECORD AND AS NO FRESH CLAIM WAS MADE , THERE WAS NO NEED TO FILE THE REVISED RETURN. HOWEVER, IN THE CASE UNDER CONSIDER ATION, A FRESH CLAIM HAS BEEN LODGED AND THUS THE FACTS OF THE CASE RELI ED UPON BY THE ASSESSEE DO NOT HELP THE APPELLANT. FURTHER, IN THE CASE OF CIT VS. RAMCO INTERNATIONAL REPORTED AT (2011) 332 ITR 306 (P&H), RELEVANT PARA NO. 4 AND 5 READ AS UNDER:- 4. WE ARE UNABLE TO ACCEPT THE SUBMISSIONS. THE T RIBUNAL HAS CONSIDERED THIS ISSUE AND FOUND THAT AS PER FORM NO . 10CCB FILED DURING THE ASSESSMENT PROCEEDINGS, THE CLAIM OF THE ASSESSEE WAS ADMISSIBLE. THE FINDING OF THE TRIBUNAL IS AS UNDER :- 19. IN VIEW OF THE ABOVE, WE FIND NO ERROR IN THE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS). IT HA S CORRECTLY BEEN HELD BY THE FIRST APPELLATE AUTHORITY, INTER ALIA, THAT AS PER FORM 10CCB FILED DURING THE ASSESSMENT PROCEEDINGS, THE CLAIM MADE BY THE ASSESSEE WAS ADMISSIBLE AND THE SAME REMAINED T O BE ALLOWED. THE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) IS HEREBY UPHELD IN VIEW OF THE ABOVE DISCUSSION. THE GRIEVANCE OF THE DEPARTMENT STANDS REJECTED. 5. IN VIEW OF THE FINDING THAT THE ASSESSEE WAS NOT MAKING ANY FRESH CLAIM AND HAD DULY FURNISHED THE DOCUMENTS AND SUBMITTED THE 11 I.T.A. NOS. 592 & 607(ASR)/2013 ASSESSMENT YEAR: 2009-10 FORM FOR CLAIM UNDER SECTION 80IB, THERE WAS NO REQ UIREMENT FOR FILING ANY REVISED RETURN. THE JUDGMENTS RELIED UPON WAS N OT APPLICABLE. FROM THE PERUSAL OF THE AFORESAID JUDGMENT, IT W OULD BE SEEN THAT THE CLAIM ALREADY MADE IN THE RETURN COULD BE CONSIDERED AND NO FRESH CLAIM CAN BE ENTERTAINED IF THE SAME HAS NOT BEEN MADE IN THE INCOME-TAX RETURN. ACCORDINGLY, THIS JUDGMENT ALSO DOES NOT HELP THE APPELLANT. AGAIN, THE LEARNED A/R HAS ALSO RELIED UPON THE JUDGMENT IN THE CASE OF CIT, CENTRAL-I VS. M/S PRUTHVI BROKERS & S HAREHOLDERS (P) LTD. REPORTED AT (2011) 349 336 (BOM.) WHEREIN IT HAS BE EN HELD THAT THE DECLARATION OF LAW IS CLEAR THAT THE APPELLATE ASSI STANT COMMISSIONER IS CO-TERMINUS WITH THAT OF THE INCOME TAX OFFICER AND IF THAT BE SO, THERE APPEARS TO BE NO REASON AS TO WHY THE APPELLANT AUT HORITY CANNOT MODIFY THE ASSESSMENT ORDER ON AN ADDITIONAL GROUND, EVEN IF NOT RAISED BEFORE THE INCOME TAX OFFICER. THE GIST OF THIS JUDGMENT I S THAT THE FIRST APPELLATE AUTHORITY MAY EXERCISE THE POWERS OF ASSE SSING OFFICER BUT THE ISSUE INVOLVED IN THE APPEAL UNDER CONSIDERATION IS DIFFERENT. ACCORDINGLY, THIS FACTS OF THIS JUDGMENT HAVE NO BE ARING ON THE FACTS OF THE CASE UNDER CONSIDERATION. APART FROM ABOVE, THE LEARNED A/R OF THE APPELLA NT HAS VEHEMENTLY ARGUED THAT EXPLANATION 5 BELOW SECTION 32(1) OF THE ACT CLEARLY STATES THAT THE PROVISION OF THIS SUB-SECTI ON SHALL APPLY WHETHER OR NOT THE ASSESSEE HAS CLAIMED THE DEDUCTION IN RESPE CT OF DEPRECIATION IN COMPUTING HIS TOTAL INCOME. HOWEVER, I AM NOT INCLI NED TO AGREE WITH THE LEARNED A/R IN THIS REGARD BECAUSE SECTION 32(1)(II A) OF THE ACT REGARDING ALLOWING THE ADDITIONAL DEPRECIATION COMES AFTER EX PLANATION 5 AND THUS THE SAME IS APPLICABLE ONLY FOR THE CLAIM OF DEPRE CIATION AND NOT FOR THE CLAIM OF ADDITIONAL DEPRECIATION. THUS THE ACTION OF THE A.O. FOR NOT ENTERTAINING A FRESH CLAIM REGARDING ADDITIONAL DE PRECIATION IS UPHELD THAT THIS GROUND OF APPEAL IS REJECTED. 11. KEEPING IN VIEW THE AFORESAID FINDINGS GIVEN BY THE LEARNED FIRST APPELLATE AUTHORITY AND THE CASES CITED BY TH E ASSESSEE BEFORE HIM 12 I.T.A. NOS. 592 & 607(ASR)/2013 ASSESSMENT YEAR: 2009-10 AS WELL AS THE PROVISIONS OF SECTION 32 OF THE ACT, WE ARE OF THE VIEW THAT LEARNED FIRST APPELLATE AUTHORITY HAS WRONGLY REJEC TED THE CLAIM OF THE ASSESSEE BY UPHOLDING THE FINDINGS OF THE ASSESSING OFFICER. AS A MATTER OF RECORD, THE ASSESSEE MADE THE CLAIM IN DISPUTE D URING THE ASSESSMENT PROCEEDINGS AND THE SAME CANNOT BE SIMPLY REJECTED ON THE GROUND THAT THE ASSESSEE SHOULD HAVE FILED THE REVISED RETURN, WHICH THE ASSESSEE HAS NOT FILED WITHIN TIME. 12. KEEPING IN VIEW THE DECISIONS CITED BY THE ASSES SEE (SUPRA) BEFORE THE LEARNED FIRST APPELLATE AUTHORITY, WE AR E NOT COMMENTING UPON THE MERIT OF THE CASE AND IN THE INTEREST OF J USTICE, WE SET ASIDE THE ISSUE IN DISPUTE TO THE ASSESSING OFFICER WITH THE DIRECTION THAT THE CLAIM FOR ADDITION OF DEPRECIATION ON PLANT OF MACHINERY AMOUNTING TO RS. 6,29,28,039/- FILED BY THE ASSESSEE IN ITS REPLY DA TED 29.11.2011 MAY BE ALLOWED, IF THE ASSESSEE FULFILS THE CONDITION ENUM ERATED UNDER SECTION 32 OF THE ACT. 13. WITH THESE OBSERVATIONS, THE APPEAL FILED BY THE ASSESSEE I.E. I.T.A. NO. 607(ASR)/2013 IS ALLOWED FOR STATISTICAL PURPOSES. 13 I.T.A. NOS. 592 & 607(ASR)/2013 ASSESSMENT YEAR: 2009-10 14. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I .E I.T.A. NO. 592(ASR)/2013 IS DISMISSED AND THE APPEAL FILED BY THE ASSESSEE I.E. 607(ASR)/2013 IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 27 TH JANUARY, 2014 SD/./- SD/./- (B.P. JAIN) (H.S. SIDHU) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 27 TH JANUARY, 2014 /RK/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE: M/S SATIA SYNTHETIC LTD., VILL. LUBAN IWALI, MUKTSAR 2. THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-II , BATHINDA 3. THE JOIN COMMISSIONER OF INCOME TAX, CIRCLE-II, BAT HINDA 4. THE CIT(A), 5. THE CIT, 6. THE SR DR, I.T.A.T., TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR.