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Income Tax Appellate Tribunal, DELHI ‘SMC’ BENCH,
Before: SHRI N.K. BILLAIYA
PER N.K. BILLAIYA, ACCOUNTANT MEMBER:
This appeal by the assessee is preferred against the order of the Commissioner of Income Tax [Appeals] - 7, New Delhi dated 02.08.2018 pertaining to A.Y 2009-10.
The sum and substance of the grievance of the assessee is that the CIT(A) erred in confirming the assessment, thereby denying the claim of deduction u/s 80IC of the Income-tax Act, 1961 [hereinafter referred to as 'the Act'] by not following the directions of the Tribunal.
Briefly stated, the facts of the case are that in the first round of litigation, the assessee had filed a revised computation of income, thereby correcting the claim of deduction u/s 80IC of the Act. Facts on record show that in the original computation of income, the assessee has claimed depreciation as per Companies Act. However, during the course of scrutiny assessment proceedings, the assessee revised its computation of income and claimed depreciation as per the Income tax Act.
The revised computation of income was rubbished by the Assessing Officer. Drawing support from the judgment of the Hon'ble Supreme Court in the case of Goetze India Ltd 284 ITR 323, the assessment was confirmed by the CIT(A) and the matter travelled upto the Tribunal.
The Tribunal, in vide order dated 30.05.2016, considered the revised computation of income and held as under:
“We find that the the issue of exemption u/s 80IC of the Act had already been accepted in the earlier years and there was no change in the facts of the present A.Y. We further find that the ld. CIT(A) has passed the order without providing the assessee due opportunity of being heard. On the basis of foregoing discussion and careful perusal of the operative part of the ld. CIT(A)’s conclusion, it is amply clear that the ld. CIT(A) has decided the issue in haste by passing a cryptic order which is not sustainable. We further note that the ld. CIT(A) has also not properly considered the submissions and facts of the case and simply followed the AO’s conclusion and dismissed the appeal of the assessee by applying the ratio of various decisions. We further note that the ld. CIT(A) too has not given due opportunity of being heard to the assessee. The ld. DR has supported the order of the ld. CIT(A). However, he raised no serious objection if the appeal is restored to the file of AO for fresh adjudication of first appeal. Therefore, in the interest of justice, we deem it fit to restore the grounds of appeal raised by the assessee to the file of the AO for fresh adjudication. Needless to mention that the AO shall provide due and proper opportunity of being heard to the assessee, without being prejudiced with the earlier impugned order. Grounds of appeal raised by the assessee are allowed for statistical purposes.”
6. While framing the assessment u/s 254 r.w.s 143(3) of the Act, the Assessing Officer once again drew support from the decision of the Hon'ble Supreme Court in the case of Goetze India Ltd [supra] and once again denied the correct deduction u/s 80IC of the Act. The CIT(A), without considering the directions of the Tribunal in the first round of litigation, confirmed the assessment.
7. I have carefully perused the orders of the authorities below and the decision of the co-ordinate bench in ITA No. 371/DEL/2014. I find that the first appellate authority has not read the decision of the Hon'ble Supreme Court in its true perspective. The Hon'ble Supreme Court has clearly mentioned that there is no fetter on the appellate authority in considering the claim as per revised computation of income. The fetter is only on the Assessing Officer.
In my considered opinion, once the claim of deduction u/s 80IC of the Act has been accepted, the fact is that correct deduction has to be given as per correct working given in the revised computation of income. It can be seen that in the first assessment order itself, the Assessing Officer had allowed the claim of deduction u/s 80IC of the Act. The only dispute which remains is the depreciation which was claimed as per the Companies Act and in the revised computation of income, the same has been computed correctly as per the Income tax Act.
The Assessing Officer is directed to decide this limited issue of depreciation as per the Income tax Act as to whether it has been claimed correctly or not. I, therefore, direct the Assessing Officer to correctly compute the deduction u/s 80IC of the Act as per the revised computation of income.
In the result, the appeal filed by the assessee in is allowed for statistical purposes. The order is pronounced in the open court on 22.04.2019.