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Income Tax Appellate Tribunal, “D” BENCH : KOLKATA
Before: Hon’ble Shri Aby. T. Varkey, JM & Shri M.Balaganesh, AM ]
IN THE INCOME TAX APPELLATE TRIBUNAL “D” BENCH : KOLKATA [Before Hon’ble Shri Aby. T. Varkey, JM & Shri M.Balaganesh, AM ] I.T.A Nos. 1194-1196/Kol/2016 Assessment Years : 2006-07, 2007-08 & 2008-09 JCIT, OSD, Circle-8(1), Kolkata -vs- M/s Hi-Tech Systems & Services Ltd. [PAN: AAACH 6621 F] (Appellant) (Respondent) C.O. Nos. 43-45/Kol/2016 (Arising out of I.T.A Nos. 1194-1196/Kol/2016) Assessment Years : 2006-07, 2007-08 & 2008-09 M/s Hi-Tech Systems & Services Ltd. -vs- JCIT, OSD, Circle-8(1), Kolkata [PAN: AAACH 6621 F] (Appellant) (Respondent)
For the Appellant : Shri Arindam Bhattacharjee, Addl. CIT For the Respondent : Shri Subash Agarwal, Advocate Date of Hearing : 22.02.2018 Date of Pronouncement : 07.03.2018 ORDER Per Bench:
These appeals of the Revenue and the Cross Objections of the assessee directed against the common orders passed by the Learned Commissioner of Income Tax (Appeals) – 1, Kolkata (in short the ld CITA) in Appeal Nos. 419,420&421/CIT(A)- 16/Kol/2014-15/C-8(1) dated 31.03.2016 against the separate orders passed by the DCIT, Circle-8, Kolkata [ in short the ld AO] under section 143(3) of the Income Tax Act, 1961 (in short “the Act”) dated 23.06.2008, 20.07.2009 and 01.06.2010 respectively for the Assessment Years 2006-07 to 2008-09 respectively. These appeals are taken up together for the sake of convenience and disposed off by this common order.
2 ITA Nos.1194-1196/Kol/2016& CO Nos. 43-45/Kol/2016 M/s Hi-Tech Systems & Services Ltd. A.Yrs.2006-07,2007-08&2008-09 2. The only issue involved in these appeals of the revenue is as to whether the ld CITA was justified in allowing the depreciation in respect of Dhule Power Unit claimed by the assessee u/s 154 of the Act, in the facts and circumstances of the case. The interconnected issue which is raised in the cross objection of the assessee is that, whether the assessee would be entitled to claim the allowability of losses in the proceedings u/s 154 of the Act for the Asst Years 2006-07 to 2008-09 which were originally offered to tax by the assessee in the returns of income and assessments completed accordingly, in the facts and circumstances of the case.
The brief facts of this issue is that the assessee company filed its return of income for the Asst Years 2006-07 to 2008-09 wherein no claim of depreciation was made in respect of its Dhule Power Plant. The assessments for the Asst Years 2006-07 to 2008-09 were completed u/s 143(3) of the Act without allowing the depreciation in respect of its Dhule Power Plant. During the course of assessment proceedings for the Asst Year 2009-10 , the ld AO observed that the assessee is engaged in the generation and supply of electricity from its plants situated at Sangli and Dhule districts of Maharashtra. He further stated that in the course of present and earlier assessment proceedings, the assessee submitted auditor’s report in Form No. 10CCB expressing its intention to claim deduction u/s 80IA(4)(iv) in respect of its Dhule unit w.e.f. AY 2011-12, thereby treating A.Y. 2011-12 to be the initial assessment year from which deduction was proposed to be claimed. The assessee made a meager profit of Rs 58,013/- for the Asst Year 2009-10 but did not offer the same as income in the return of income on the plea that in the earlier years, when losses were incurred in respect of the very same unit, the assessee had not claimed the same and had offered to tax even the losses. Accordingly, it pleaded that since losses were offered to tax in earlier years and hence profits are not liable for taxation in subsequent years. Relying on the provisions of section 29 read with section 28 of the Act, the ld AO observed that the income from business has to be computed after taking into account all the businesses 2
3 ITA Nos.1194-1196/Kol/2016& CO Nos. 43-45/Kol/2016 M/s Hi-Tech Systems & Services Ltd. A.Yrs.2006-07,2007-08&2008-09 of the assessee together including the business of generation of electricity from the Dhule Unit. This would require add back of the entire book depreciation and corresponding allowance of depreciation u/s 32 of the Act on all the depreciable assets used in the assessee’s business including that of Dhule unit. The ld AO further observed that Explanation 5 to section 32(1) of the Act would apply whether or not the assessee had claimed deduction in respect of depreciation. Accordingly, the ld AO recomputed the depreciation allowable in respect of Dhule unit in accordance with the provisions of section 32(1) of the Act. He added back book depreciation of Dhule unit amounting to Rs 88,51,904/- but allowed depreciation u/s 32 of the Act in respect of the said unit which amounted to Rs 11,96,299/-. He also added back profit from Dhule unit amounting to Rs 58,013/- which was not taken into account by the assessee in its return of income. Since the depreciation in respect of Dhule unit was allowed in the Asst Year 2009-10, the assessee, vide rectification petition u/s 154 of the Act dated 1.9.2011 claimed depreciation on its Dhule Power Plant for the preceding Asst Years 2006-07 , 2007-08 and 2008-09. Further in the original computation for the Asst Years 2006-07, 2007-08 and 2008-09, the assessee had added back the loss of Dhule unit. However, the said losses were not added by the assessee in the revised computation of income filed alongwith the rectification petition dated 1.9.2011.
The ld AO rejected the rectification petitions contending that an order on which assessment had already been completed could be modified subject to the limitation that the modified income cannot go below the returned income. Aggrieved , by the said rectification orders all dated 2.8.2012 for the Asst Years 2006-07 , 2007-08 and 2008- 09 , the assessee filed appeals before the ld CITA.
The ld CITA gave a categorical finding that the assessee had not claimed any depreciation in the Asst Years 2006-07 , 2007-08 and 2008-09 in its original return of
4 ITA Nos.1194-1196/Kol/2016& CO Nos. 43-45/Kol/2016 M/s Hi-Tech Systems & Services Ltd. A.Yrs.2006-07,2007-08&2008-09 income in respect of its Dhule Power Plant. The details of depreciation claimed in the return and allowed in the assessments are as under:-
Asst Year Depn Claimed Depn Allowed Remarks 2006-07 4,16,55,269 4,16,55,269 Assessed u/s 143(3) dated 23.6.08 2007-08 4,41,70,408 4,41,70,408 Assessed u/s 143(3) dated 20.7.09 2008-09 1,92,43,316 1,92,43,316 Assessed u/s 143(3) dated 1.6.10
The aforesaid depreciation figures admittedly did not contain the depreciation u/s 32 of the Act in respect of its Dhule Power Plant. It was submitted that the ld AO was pleased to calculate and / or compute depreciation on Dhule unit in an amount of Rs 11,96,299/- which was allowed u/s 32(1)(ii) of the Act, in addition to the depreciation of Rs 6,45,82,898/- claimed by the assessee in its return for the Asst Year 2009-10. It was submitted that the ld AO while computing the said amount of depreciation of Rs 11,96,299/- for the Asst Year 2009-10, had arrived at the correct written down value (WDV) of the relevant asset i.e the plant and machineries of the Dhule Unit, in accordance with the provisions of section 43(6) of the Act i.e taking the original cost and working out the depreciation for Asst Years 2006-07 , 2007-08 and 2008-09 (as if allowed on notional basis) and arriving at the correct WDV as on 1.4.08. It was pleaded that from the said workings, the assessee would be entitled for depreciation u/s 32(1) of the Act pursuant to Explanation 5 thereon, for the Asst Years 2006-07 to 2008-09 as under:-- Asst Year Depreciation eligible for allowance
2006-07 2,49,22,905 2007-08 2,99,07,486 2008-09 59,81,497
At the hearing on 20.03.2012 on the said rectification petition dated 01.09.2011 the assessing officer was pleased to call for several papers/documents for demonstrating the assessee’s case beyond doubt. Inasmuch as it was not possible to furnish all papers
5 ITA Nos.1194-1196/Kol/2016& CO Nos. 43-45/Kol/2016 M/s Hi-Tech Systems & Services Ltd. A.Yrs.2006-07,2007-08&2008-09 and documents asked for and/or clarifications desired, within 31.03.2012 when the six months limitation period u/s 154(8) was to expire, the assessee made a complementary rectification petition on 26.03.2012, for survival of the on-going rectification proceeding. In the said rectification petition dated 26.03.2012, it was inter alia stated in para-3.0 that all facts and/or circumstances stated in the earlier rectification petition dated 01.09.2011 and all contentions raised or made therein should be treated as reiterated in the fresh rectification petition dated 26.03.2012 and for all technical purposes, the earlier rectification petition dated 01.09.2011 should be taken as part of the fresh rectification petition. The assessee pleaded that the ld AO despite having all the details and evidences on record before him during the rectification proceedings, rejected the assessee’s claim u/s 32 of the Act without a speaking order. Similarly yet another mistake pointed out by the assessee regarding the wrong disallowance of book loss of Dhule Unit made by the assessee in its return of income for the Asst Years 2006-07 to 2008-09 . This was also not considered by the ld AO while disposing off the rectification petitions of the assessee for the Asst Years 2006-07 to 2008-09. The assessee stated that separate books of accounts were maintained by the assessee for its Dhule unit and the Sangli unit and hence it is very much possible for deducing the correct profits / losses of Dhule unit. The losses of Dhule unit added back in the computation of income by the assessee for the Asst Years 2006-07 to 2008-09 are as under:-
Asst Year Amount of Loss Remarks 2006-07 11,01,498/- Loss of Dhule Unit after charging depreciation of Rs 12,34,742/- as per Companies Act. In consequence Of such adjustment, the overall book depreciation of Rs 5,26,37,199/- has been reduced by the book depn Of Dhule unit in the said sum of Rs 12,34,742/- and Thus the resulting figure of Rs 5,14,02,457/- has been Added to the net profit as per P&L account. 2007-08 1,43,57,429/- Loss of Dhule Unit after charging depreciation of Rs 16990375/- as per Companies Act. In consequence 5
6 ITA Nos.1194-1196/Kol/2016& CO Nos. 43-45/Kol/2016 M/s Hi-Tech Systems & Services Ltd. A.Yrs.2006-07,2007-08&2008-09 Of such adjustment, the overall book depreciation of Rs 6,64,05,878/- has been reduced by the book depn Of Dhule unit in the said sum of Rs 16990375/- and Thus the resulting figure of Rs 4,94,15,503/- has been Added to the net profit as per P&L account. 2008-09 86,53,629/- Loss of Dhule Unit after charging depreciation of Rs 12263653/- as per Companies Act. In consequence Of such adjustment, the overall book depreciation of Rs 4,89,24,360/- has been reduced by the book depn Of Dhule unit in the said sum of Rs 12263653/- and Thus the resulting figure of Rs 3,66,60,607/- has been Added to the net profit as per P&L account.
It was pleaded that the aforesaid adjustments in the return had been made by the assessee as it then understood, though wrongly, that the brought forward book losses of the earlier years in respect of Dhule unit could be set off against the book profit of the said unit. It was further pleaded that on reference to assessment order dated 23.6.08 u/s 143(3) of the Act for the Asst Year 2006-07, the starting point of computation of business income has been taken as the income of Rs 2,47,50,332/- which is the amount of business income computed in the computation of taxable income and declared in the return by the assessee. Likewise, on reference to assessment order dated 20.7.09 u/s 143(3) of the Act for the Asst Year 2007-08, the starting point of computation of business income has been taken as the income of Rs 4,64,37,567/- which is the amount of business income computed in the computation of taxable income and declared in the return by the assessee. Similarly, on reference to assessment order dated 1.6.10 u/s 143(3) of the Act for the Asst Year 2008-09, the starting point of computation of business income has been taken as the income of Rs 6,30,66,553/- which is the amount of business income computed in the computation of taxable income and declared in the return by the assessee. This goes to prove that the book loss of Dhule Unit disallowed voluntarily by the assessee in the computation of business income for the Asst Years 2006-07 to 2008-09 and hence the same constitutes mistake apparent from record within the meaning of section 154 of the Act. It was
7 ITA Nos.1194-1196/Kol/2016& CO Nos. 43-45/Kol/2016 M/s Hi-Tech Systems & Services Ltd. A.Yrs.2006-07,2007-08&2008-09 also pointed out that similar mistake that had crept in in the computation of business income for the Asst Year 2009-10, had been duly considered and relief granted by the ld AO in the assessment order framed u/s 143(3) of the Act dated 1.8.2011.
5.1. The assessee further submitted that the income assessed u/s 143(3) of the Act can be modified even if the same has gone below the returned income. In support of this proposition, it placed reliance on the following decisions:- a) CIT vs Bakelite Hylam Ltd reported in 237 ITR 392 (AP) b) Gujarat Gas Co. Ltd vs JCIT reported in 245 ITR 84 (Guj) c) Milton Laminates Ltd vs CIT reported in 37 taxmann.com 249 (Guj)
The ld CITA in this regard observed :- “I have carefully gone through the submissions of AR of the appellant along with the judgments relied upon by him. I have also perused the rectification order u/s. 154. On perusal of the various judgments relied on by the appellant, I find force in the submission of the appellant that the income assessed u/s 143(3) can be modified even if the same has gone below the returned income. This view is supported by as many as three decisions of two High Courts. The AO has not cited any contrary decision. Therefore, the reason stated in the rectification order by the AO has no legs to stand. Hence, the ground no. 1 is allowed.”
6.1. With regard to challenging the action of the ld AO in not allowing the Depreciation on Dhule unit u/s 32(1)(ii) of the Act, the ld CITA observed that the assessee had placed reliance on the decision of the Hon’ble Jurisdictional High Court in the case of Bridge & Roof Co. (India) Ltd vs CIT reported in 338 ITR 15 (Cal) wherein the Hon’ble Court held as under:- 15. We find that all the authorities below ignored the aforesaid point in their respective orders and thus, there was apparent error on the face of record justifying rectification. Merely because in the original return, there was a mistake on the part of the assessee, such fact cannot be a ground for refusing the prayer of rectification, when the mistake is apparent from the record and the dispute is also not debatable in view of the law settled by the Supreme Court long ago. As pointed out by the Supreme Court in the case of CITv. P. Firm Muar AIR 1965 SC 1216, if a particular income is not taxable under the Income-tax Act, it cannot be taxed on the basis of estoppel or 7
8 ITA Nos.1194-1196/Kol/2016& CO Nos. 43-45/Kol/2016 M/s Hi-Tech Systems & Services Ltd. A.Yrs.2006-07,2007-08&2008-09 any other equitable doctrine. Equity is out of place in tax law and if a particular income is not taxable, the Income-tax Officer has no power to impose tax on the said income. 16. We now propose to deal with the decisions cited by Mr. Bhowmick. 17. In the case of Mepco Industries Ltd. (supra), the Supreme Court was dealing with a case of rectification under section 154 of the Act where the question was whether subsidy was a revenue receipt when in the order sought to be rectified it was held to be capital receipt. In such a case, the Supreme Court held that in order to determine whether subsidy is revenue receipt or not, the nature of the subsidy is to be examined and such question does not come within the purview of section 154 of the Act. In the case before us, the mistake is in not treating the closing balance of an year as the opening balance of the next year which is apparent on the face of record. Thus, the said decision does not help the revenue. 18. In the case of Hero Cycles (P.) Ltd. (supra), the Supreme Court held that rectification in exercise of power under section 154 of the Act can only be made when a glaring mistake of fact or law committed by the officer passing the order is apparent from record and that rectification is not permissible if the question is debatable. According to the Supreme Court, the point which was not examined on fact or on law cannot be dealt with as a mistake apparent on record. In the case before us, the point regarding the method of valuation had already been examined by the Assessing Officer in the assessment year 1986-87 and he had also examined the closing stock for that year. However, while passing order for the assessment years 1987-88 and 1988- 89, the Officer ignored his own finding made for the assessment year 1986-87 by not following the well-settled law of accountancy that the closing stock of an assessment year should be the opening stock of the next assessment year and thus, there was a glaring mistake apparent on the record. The said decision thus supports the Appellant before us. 19. Thus, the decisions cited by Mr. Bhowmick do not help his client in any way. 20. We, therefore, set aside the order passed by the Tribunal below and send the matter back to the Assessing Officer for reassessing the return of the assessee for the assessment years 1987-88 and 1988-89 by treating closing stock of the previous assessment years respectively as the opening work-in-progress of those assessment years as in our opinion there is an error apparent on the face of record in ignoring the aforesaid well-known principle of accounting which comes within the purview of section 154 of the Act.
6.2. The ld CITA in this regard held as under:- “I find that in the instant case the appellant initially did not claim any depreciation u/s 32(1) on Dhule Power Plant. Later, the appellant claimed depreciation on Dhule Unit by filing a rectification petition following the assessment order for the assessment year 2009-10, against which no appeal has been filed by the appellant as submitted by the AR before me, 8
9 ITA Nos.1194-1196/Kol/2016& CO Nos. 43-45/Kol/2016 M/s Hi-Tech Systems & Services Ltd. A.Yrs.2006-07,2007-08&2008-09 wherein the AO allowed the depreciation on Dhule Unit in accordance with Explanation 5 to the provision of Sec.32(1) of the Act. I have also perused the Explanation 5 to the provisions of sec. 32(1) and find that the provision of sec 32 will apply whether or not the assessee has claimed the deduction on account of depreciation. Therefore, it was imperative on the part of the AO to allow depreciation and non allowance of such depreciation is purely a mistake which is apparent from record. Merely because in the original return the claim for depreciation was not made" the AO should not have refused the prayer of rectification when the mistake was apparent from the record and the dispute was not debatable. Further, It is seen that under the similar circumstances, the Hon'ble jurisdictional Calcutta High Court in the case of Bridge & Roof Co. (India) Ltd. (supra) has directed the AO to allow the claim of the assessee u/s. 154. Further, it is seen that the AO while passing the assessment order for the AY: 2009-10 has computed the depreciation in respect of the Dhule unit for the said year on the basis of opening W.D.V which again has been arrived at after notionally computing depreciation for the preceding three years which are subject matter of the instant appeals. Therefore, in view of the above and following the judgment of the jurisdictional High Court, I agree with the contention of the appellant that the appellant is entitled to claim depreciation u/s. 32(1) in respect of Dhule Unit. Accordingly, I direct the AO to allow the claim of the appellant in respect of depreciation on Dhule Unit for the AY.s: 2006 - 2007, 2007 - 2008 and 2008 - 2009 as under -
(i) AY.: 2006 - 2007
I find that in the original computation for the above-mentioned year, the appellant has neither added back depreciation on Dhule Unit as per the Companies Act nor claimed any depreciation on Dhule Unit as per the Income Tax Act.
However, in the revised computation filed alongwith rectification petition u/s. 154, the appellant added back depreciation on Dhule Unit to the tune of Rs.12,34,742/- as per the Companies Act and simultaneously claimed depreciation on Dhule Unit to the tune of Rs.2,49,22,905/- as deduction as per the Income Tax Act.
Therefore, in view of the above, I direct the AO to allow the net claim of the appellant in respect of depreciation on Dhule Unit to the tune of Rs.2,36,88,163/- (2,49,22,905/- - 12,34,742/-).
(ii) AY.: 2007 - 2008
I find that in the original computation for the above-mentioned year, the appellant has neither added back depreciation on Dhule Unit as per the Companies Act nor claimed depreciation on Dhule Unit as per the Income Tax Act. However, in the revised computation filed alongwith rectification petition u/s. 154, the appellant has added back depreciation on Dhule Unit to the tune of Rs.1,69,90,375/- as per
10 ITA Nos.1194-1196/Kol/2016& CO Nos. 43-45/Kol/2016 M/s Hi-Tech Systems & Services Ltd. A.Yrs.2006-07,2007-08&2008-09 the Companies Act and simultaneously claimed depreciation on Dhule Unit to the tune of Rs.2,99,07,486/- as per the Income Tax Act. Therefore, in view of the above, I direct the AO to allow the net claim of the appellant in respect of depreciation on Dhule Unit to the tune of Rs.1,29,17,l11/- (2,99,07,486/- - 1,69,90,375/-). (iii) A.Y.: 2008 - 2009 I find that in the original computation for the above-mentioned year, the appellant neither added back depreciation on Dhule Unit as per the Companies Act nor claimed any depreciation on Dhule Unit as per the Income Tax Act. However, in. the revised computation filed alongwith rectification petition u/s. 154, the appellant added back depreciation on Dhule Unit to the tune of Rs.1,22,63,653/- as per the Companies Act and simultaneously claimed depreciation on Dhule Unit to the tune of Rs.59,81,497/- as per the Income Tax Act. Therefore, in view of the above, I direct the AO to added back the net amount of Rs. 62,82,156/- (1,22,63,653/- - 59,81,497/-) to the income of the appellant in respect of depreciation on Dhule Unit. )
Aggrieved, the revenue is in appeal before us on the following grounds :-
I.T.A. No. 1194/Kol/2016 for the assessment year 2006-07 1. That on the facts and circumstances of the case and in law, the Ld. CIT(A) erred by allowing the depreciation amounting to Rs. 2,36,88,163/- in respect of Dhule Power Unit claimed by the assessee u/s 154 of the Income Tax Act, 1961, although there was no such mistake apparent from record.
That the appellant reserves the right to amend, alter or add to any grounds of appeal before or at the time of hearing of appeal.
I.T.A. No. 1195/Kol/2016 for the assessment year 2007-08 1. That on the facts and circumstances of the case and in law, the Ld. CIT(A) erred by allowing the depreciation amounting to Rs. 1,29,17,111/- in respect of Dhule Power Unit claimed by the assessee u/s 154 of the Income Tax Act, 1961, although there was no such mistake apparent from record.
That the appellant reserves right to amend, alter or all to any grounds of appeal before or at the time of hearing of appeal. 10
11 ITA Nos.1194-1196/Kol/2016& CO Nos. 43-45/Kol/2016 M/s Hi-Tech Systems & Services Ltd. A.Yrs.2006-07,2007-08&2008-09
I.T.A. No. 1196/Kol/2016 for the assessment year 2008-09 1. That on the facts and circumstances of the case and in law the Ld. CIT(A) erred by allowing the depreciation amounting to Rs. 62,82,156/- in respect of Dhule Power Unit claimed by the assessee u/s 154 of the Income Tax Act, 1961, although there was no such mistake apparent from record.
2.That the appellant reserves right to amend, alter or add to any grounds of appeal before or at the time of hearing of appeal.
With regard to the claim of allowability of book loss of Asst Years 2006-07 to 2008-09 u/s 154 of the Act, that were disallowed voluntarily by the assessee in the returns of income , the ld CITA observed as under:- “I have carefully gone through the submissions of AR of the appellant. I have also perused the relevant material available on record. I find that in the original computation of income, the appellant added back loss in Dhule Unit of Rs. 11,01,498/- , Rs. 1,43,57,429/- and Rs. 86,53,629/- for the A.Ys.2006-07, 2007-08 and 2008-09 respectively. However, in the revised computation filed along with rectification petition u/s 154, the appellant did not add back the above-mentioned loss contending that the said losses were wrongly added back in the original computation. In my view, the issue relating to allowability of loss on Dhule unit in contentious and also require deep investigation into facts. Therefore, the said issue is outside the purview of section 154. Hon'ble Supreme Court in the case of T.S. Balram vs Volkart Bros. 82 ITR 50 has held that a mistake apparent on the records must be an obvious and patent mistake and not something which can be established by a long drawn process on points on which there may be two opinions. Hence, I do not agree with the contention of the AR and hold that the said loss cannot be allowed in the rectification proceedings u/s 154. In view of the above discussion and observation and following the judgment of the Hon’ble Apex Court, I hold that the AO is justified in not allowing the losses of Dhule Unit while passing the order u/s 154 of the Act. Therefore, this ground of appeal of the appellant is dismissed accordingly.”
Aggrieved, the assessee has preferred cross objections before us on the following grounds:- C.O No. 43/Kol/2016 for the assessment year 2006-07 1. For that on the facts and in the circumstances of the case, the Ld. CIT(A) was justified in allowing depreciation in respect of Dhule Unit. 11
12 ITA Nos.1194-1196/Kol/2016& CO Nos. 43-45/Kol/2016 M/s Hi-Tech Systems & Services Ltd. A.Yrs.2006-07,2007-08&2008-09
2.For that on the facts and in the circumstances of the case, the Ld. CIT(A) ought to have allowed loss in Dhule Unit suffered by the assessee to the tune of Rs. 11,01,498/-
For that the Ld. CIT(A) ought to have considered that the action of the assessee in adding back the loss in Dhule Unit in the original computation is purely mistake apparent from record and as such, the said mistake should have been rectified.
That the appellant craves leave to add, alter or delete all or any of the ground of appeal.
C.O No. 44/Kol/2016 for the assessment year 2007-08 1. For that on the facts and in the circumstances of the case, the Ld. CIT(A) was justified in allowing depreciation in respect of Dhule Unit.
2.For that on the facts an in the circumstances of the case, the Ld. CIT(A) ought to have allowed loss in Dhule Unit suffered by the assessee to the tune of Rs. 1,43,57,429/-.
3.For that the Ld. CIT(A) ought to have considered that the action of the assessee in adding back the loss in Dhule Unit in the original computation is purely mistake apparent from record and as such, the said mistake should have been rectified.
4.That the appellant craves leave to add, alter or delete all or any of the ground of appeal.
C.O No. 45/Kol/2016 for the assessment year 2008-09 1. For that on the facts and in the circumstances of the case, the Ld. CIT(A) was justified in allowing depreciation in respect of Dhule Unit.
2.For that on the facts an in the circumstances of the case, the Ld. CIT(A) ought to have allowed loss in Dhule Unit suffered by the assessee to the tune of Rs. 86,53,629/-
3.For that the Ld. CIT(A) ought to have considered that the action of the assessee in adding back the loss in Dhule Unit in the original computation is purely mistake apparent from record and as such, the said mistake should have been rectified. 12
13 ITA Nos.1194-1196/Kol/2016& CO Nos. 43-45/Kol/2016 M/s Hi-Tech Systems & Services Ltd. A.Yrs.2006-07,2007-08&2008-09
4.That the appellant craves leave to add, alter or delete all or any of the ground of appeal.
We have heard the rival submissions and perused the materials available on record. The facts stated hereinabove remain undisputed and hence the same are not reiterated for the sake of brevity. It is well settled that the depreciation is to be granted to the assessee mandatorily irrespective of claim made by the assessee in the return of income. It is not in dispute that the assessee had not made any claim of depreciation in respect of its Dhule Power Plant for the Asst Years 2006-07 to 2008-09. Hence applying the provisions of Explanation 5 to section 32(1) of the Act, depreciation is to be granted to the assessee in the proceedings u/s 154 of the Act for the Asst Years 2006-07 to 2008-09. We find that the ld AO having applied the very same provision (i.e Explanation 5 to section 32 of the Act) for the Asst Year 2009-10, ought to have applied the same for the Asst Years 2006-07 to 2008-09 also in the interest of justice. We find that the ld CITA had rightly granted relief to the assessee in this regard. Accordingly, the grounds raised by the revenue for the Asst Years 2006-07 to 2008-09 are dismissed.
With regard to the allowability of book losses for the Asst Years 2006-07 to 2008- 09 in the rectification proceedings u/s 154 of the Act, which were offered to tax by the assessee in the respective returns of income and assessed as such, we find that the veracity of the said losses requires investigation of facts and enquiries by the ld AO and only after such verification , the ld AO could come to a conclusion that the said losses are genuine and is allowable. Hence we hold that the ld CITA had rightly rejected this plea of the assessee that the same cannot be done u/s 154 of the Act by placing reliance on the decision of the Hon’ble Supreme Court in the case of T.S.Balaram vs Volkart Bros reported in 82 ITR 50 (SC). Hence we do not find any
14 ITA Nos.1194-1196/Kol/2016& CO Nos. 43-45/Kol/2016 M/s Hi-Tech Systems & Services Ltd. A.Yrs.2006-07,2007-08&2008-09 infirmity in the order of the ld CITA in this regard. Accordingly, the cross objections of the assessee are dismissed for the Asst Years 2006-07, 2007-08 and 2008-09.
In the result, both the appeals of the revenue as well as the cross objections of the assessee are dismissed.
Order pronounced in the Court on 07.03.2018
Sd/- Sd/- [A.T. Varkey] [ M.Balaganesh ] Judicial Member Accountant Member
Dated : 07.03.2018 SB, Sr. PS
Copy of the order forwarded to: 1. JCIT(OSD), Circle-8(1), Kolkata, Aaykar Bhawan, 5th Floor, P-7, Chowringhee Square, Kolkata-700069. 2. M/s Hi-Tech Systems & Services Ltd., “White House” 119, Park Street, Kolkata- 700016. 3. C.I.T(A)- , Kolkata 4. C.I.T.- Kolkata. 5. CIT(DR), Kolkata Benches, Kolkata.