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Income Tax Appellate Tribunal, DELHI BENCHES “I-2”: DELHI
Before: SHRI BHAVNESH SAINI & SHRI L.P. SAHU
ORDER PER BHAVNESH SAINI, J.M.
This appeal by assessee has been directed against the order of DCIT, Circle 25(2), New Delhi dated 21.10.2015 for AY
2 ITA.No.6664/Del./2015 TRL Riceland Pvt. Ltd.
2011-12 u/s 143(3) r.w.s. 144C(4) of the I.T. Act, 1961 passed in pursuance to the order of DRP-2 dated 14.09.2015.
The assessee in the present appeal has challenged the orders of the authorities below i.e. AO/DRP in holding that the assessee was not entitled to depreciation of Rs. 26,47,038/-.
Briefly stated facts of the case are that the AO passed the draft assessment order u/s 143(3) r.w.s. 144C (1) of the I.T.
Act dated 09.03.2015 in which the claim of excess depreciation was considered. The AO noted that in the computation of income assessee has claimed depreciation for the year at Rs. 14,12,22,588/-, whereas in the depreciation chart for the year as per Annexure ‘C’ of audit report, the figures stand at Rs. 13,85,75,550/-. It was observed that the excess claim of Rs. 26,47,038/- is not allowable. The DRP in their order considered the ground no. 9 which pertains to claim of depreciation by the assessee in its revised return. The DRP similarly found the claim of depreciation excessive. Same
3 ITA.No.6664/Del./2015 TRL Riceland Pvt. Ltd. ground was dismissed. The AO in the assessment order did not discuss the issue and completed the assessment.
Ld. Counsel for the assessee submitted that the assessee filed revised return of income on 29.09.2012 for assessment year under appeal, copy of which is filed at page 28 of the PB.
PB-27 is tax audit report originally filed and PB-54 is revised statement of depreciation chart showing the higher figure as noted by the AO. He has submitted that since return of income was revised within time u/s 139(5) of the I.T. Act.
Therefore, claim of asserssee should be discussed in the impugned orders, as per law. On the other hand, Ld. DR relied upon the orders of the authorities below.
We have considered the rival submissions and perused the material available on record.
The assessee in this case, filed return of income originally on 29.09.2011. The depreciation chart filed with the original return of income is filed at page 27 of the PB in which the depreciation figure as per tax audit report was Rs.
4 ITA.No.6664/Del./2015 TRL Riceland Pvt. Ltd.
13,85,75,550/-. The assessee filed revised return of income on 29.09.2012 along with the revised depreciation chart, copy of which is filed at page 54 of the PB in which depreciation was claimed in a sum of Rs. 14,12,22,588/-.
According to Section 139(5) of the Act, if any person, having furnished a return of income under sub section (1) or in pursuance of notice issued under sub section (1) of section 142, discovers any omission or any wrong statement therein, he may furnish a revised return at any time before the expiry of one year from the end of the relevant assessment year or before the completion of the assessment, whichever is earlier.
The assessee filed the revised return of income claiming therein higher depreciation which is supported by revised depreciation chart prior to passing of the draft assessment order as well as before the expiry of one year from the end of the relevant assessment year, therefore, Ld. Counsel for the assessee rightly contended that revised return was filed within time allowed as per section 139(5) of the Act. The 5 ITA.No.6664/Del./2015 TRL Riceland Pvt. Ltd. observations in the draft order are, therefore, incorrect.
Though the DRP noted that assessee filed the revised return of income but the issue is not decided as per revised return of income supported by revised depreciation chart. The AO in the impugned order did not discuss this issue. Therefore, the matter requires reconsideration at the level of the AO/TPO.
We, accordingly, set aside the orders of the authorities below and restore this issue to the file of AO/TPO with the direction to re-decide the issue as per revised return of income filed by the assessee, strictly in accordance with law by giving reasonable sufficient opportunity of being heard to the assessee.
In the result, appeal of the assessee is allowed for statistical purposes.
Order pronounced in the open Court.