Lord Krishna Rice Mills, Karnal V. ITO, Ward-2, Karnal

ITA 9009/DEL/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 9737 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 3 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-03-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 19-11-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS SHIVANI BANSAL
• Keywords: Depreciation; Opportunity of being heard; Additional depreciation; Revised return
• Section: 201

Judgement Text

IN TH E INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : SMC - 1 : NEW DELHI BEFORE SHRI R. K. PANDA, ACCOUNTANT MEMBER AND MS SUCHITRA KAMBLE, JUDICIAL MEMBER ITA NO. 9009 / DEL /201 9 ASSESSMENT YEAR : 20 1 4 - 15 LORD KRISHNA RICE MILLS, C/O S.B. GUPTA, ADVOCATE, 3/93, MALL ROAD, KARNAL, HARYANA. PAN : AA BFL592 6H VS ITO, WARD - 2, KARNAL. (APP ELL A NT ) (RESPONDENT) A SSESSEE BY : NONE RE VENUE BY : MRS. SHIVANI BANSAL, SR. DR DATE OF HEARING : 10 .0 3 . 20 2 1 DATE OF PRONOUNCEMENT : 1 8 . 0 3 . 20 2 1 ORDER PER R. K. PANDA, AM : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 27 TH SEPTEMBER, 2019 OF THE CIT(A) , KARNAL, RELATING TO THE ASSESSMENT YEAR 201 4 - 15 . 2 . FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSES SEE IS A PARTNERSHIP FIRM AND DERIVES INCOME FROM MANUFACTURING AND TRADING OF RICE BY HUSKING OF PADDY AND SALES THEREOF. IT FILED ITS RETURN OF INCOME ON 25 TH SEPTEMBER, 2013 DECLARING AN INCOME OF RS.3,41 ,830/ - . THE AO COMPLETED THE ASSESSMENT U/S 143( 3) OF THE ACT ON 15 TH FEBRUARY, 2016 DETERMINING THE TOTAL INCOME OF THE ASSESSEE AT ITA NO. 9 009 / DEL /201 9 2 RS.7,65,330/ - WHEREIN HE MADE CERTAIN ADDITIONS. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE HAS CLAIMED ADDITIONAL DEPRECIATION ON PURCHASE OF MACHINERY OF RS.1,17,14,501/ - . THE CLAIM OF THE ASSESSEE FOR ADDITIONAL DEPRECIATION WAS REJECTED BY THE AO KEEPING IN VIEW OF THE DECISION OF THE HON BLE SUPREME COURT IN THE CASE OF M/S GOETZE (INDIA) LTD. VS. CIT REPORTED IN 284 ITR 323, SINCE THE SAID ADDITIONAL DEPRECIATION WAS NOT CLAIMED BY THE ASSESSEE EITHER IN THE ORIGINAL RETURN OR THROUGH THE REVISED RETURN. 3. BEFORE THE CIT(A), APART FROM CHALLENGING THE OTHER ADDITIONS, THE ASSESSEE CHALLENGED THE ORDER OF THE AO IN DENYING THE CLAIM OF ADDITIONAL DEPR ECIATION WHICH IS THE SUBJECT MATTER OF APPEAL BEFORE THE TRIBUNAL. HOWEVER, THE LD.CIT(A) DISMISSED THE CLAIM OF ADDITIONAL DEPRECIATION RAISED BEFORE HIM BY OBSERVING AS UNDER: - I HAVE EXAMINED THE FACTS OF THE CASE, THE REMAND REPORT OF THE ASSESSING OFFICER (A.O.) AND THE COUNTER COMMENTS OF THE APPELLANT. IN THIS CASE, A CLAIM HAD BEEN MADE AT THE ASSESSMENT STAGE FOR ADDITIONAL DEPRECIATION. THE AO DENIED THE CLAIM BY RELYING ON THE HON'BLE SUPREME COURT'S DECISION IN THE CASE OF M/S GOETZE (INDIA) LTD. VS. CIT (2006) ITR 323 (SC) WHEREIN IT HAS BEEN CLEARLY STATED THAT ADDITIONAL CLAIM FOR DEDUCTION CAN BE ENTERTAINED ONLY IF A REVISED RETURN HAS BEEN FILED. IN THIS CASE, NO REVISED RETURN WAS FILED. MOREOVER, THE CASE LAW CITED BY THE APPELLANT FO CUS ATTENTION TO THE PROCEEDINGS AT THE LEVEL OF THE HON BLE ITAT AND NOT AT THE LEVEL AO AND CIT(A). THEREFORE, IT IS NOT APPLICABLE TO THE INSTANT CASE. HENCE, I CONFIRM THE DISALLOWANCE MADE IN THIS REGARD. 4. AGGRIEVED WITH SUCH ORDER OF THE CIT(A), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL BY RAISING THE FOLLOWING GROUNDS: - ITA NO. 9 009 / DEL /201 9 3 1. THAT THE ORDER OF THE LEARNED CIT(A), KA RN AL IS AGAINST LAW AND FACTS. 2. THE CLAIM OF ADDITIONAL DEPRECIATION MADE DURING ASSESSMENT PROCEEDINGS SHOULD HAVE BEEN ALLOWE D IN VIEW OF SECTION 32(1) AS A.O. IS BOUND TO ALLOW ADDITIONAL DEPRECIATION IN VIEW OF EXPLANATION 5 TO SECTION 32(1). 3. THAT CLAIM FOR ADDITIONAL DEPRECIATION EVEN MADE DURING ASSESSMENT PROCEEDINGS SHOULD HAVE BEEN ALLOWED BY A.O. IN VIEW OF BOARD CIR CULAR NO. 14(XI - 35) OF 1955 DATED APRIL 11, 1955 AS THE A.O. IS BOUND BY THE CIRCULAR. 4. THAT CASE OF THE ASSESSEE IS COVERED BY JUDGEMENT PASSED BY HON'BLE ITAT BANGLORE BENCH B IN CASE OF RAKESH SINGH VS. ACIT IN APPEAL NO. 1027(BANG) OF 2011 FOR A.Y. 2007 - 08. 5. NONE APPEARED ON BEHALF OF THE ASSESSEE. WE, THEREFORE, PROCEED TO DECIDE THE ISSUE ON THE BASIS OF MATERIAL AVAILABLE ON RECORD AND AFTER HEARING THE LD. DR. 5.1 THE ISSUE TO BE DECIDED IN THE INSTANT CASE IS AS TO WHETHER THE ASSESSEE CA N CLAIM ADDITIONAL DEPRECIATION WHICH WAS NOT CLAIMED IN THE ORIGINAL RETURN OR NOT CLAIMED THROUGH REVISED RETURN, BUT, WAS CLAIMED DURING THE COURSE OF ASSESSMENT PROCEEDINGS. AS PER THE DECISION OF THE HON BLE SUPREME COURT IN THE CASE OF M/S GOETZE (IN DIA) LTD. VS. C IT (SUPRA), THE DECISION WAS LIMITED TO THE POWERS OF THE ASSESSING AUTHORITY AND DOES NOT IMPINGE ON THE POWER OF THE INCOME - TAX APPELLATE TRIBUNAL U/S 254 OF THE INCOME - TAX ACT, 1961. WE, THEREFORE, DIRECT THE AO TO ADJUDICATE THE ISSUE O F ADDITIONAL DEPRECIATION WHICH WAS NOT CLAIMED BY THE ASSESSEE EITHER IN THE ORIGINAL RETURN OR DURING THE REVISED RETURN ON THE BASIS OF THE FACT AND LAW AFTER GIVING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE HOLD AND DIRECT ACCORDINGLY. THE GR OUNDS RAISED BY THE ASSESSEE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. ITA NO. 9 009 / DEL /201 9 4 6 . IN THE RESULT, T HE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . THE ORDER W AS PRO NOUNCED IN THE OPEN COURT ON 18 TH MARCH, 2021. . SD/ - SD/ - (SUCHI TRA KAMBLE) ( R. K. PANDA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 18 TH MARCH, 2021. DK COPY FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASSTT. REGISTRAR, ITAT, NEW DELHI