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Income Tax Appellate Tribunal, DELHI BENCH ‘C’, NEW DELHI
Before: SHRI J. SUDHAKAR REDDY & SHRI SUDHANSHU SRIVASTAVA
ORDER PER J. SUDHAKAR REDDY, ACCOUNTANT MEMBER Both these appeals are filed by the Revenue directed against the orders of the Ld.CIT(A), Bareilly dated 17.4.2013 pertaining to the Assessment Years (A.Y.) 2005- 06 and 2006-07 respectively.
Facts in brief:- The assessee is a company and it filed its return of income on 10.10.2005 for the A.Y. 2005-06 and on 21.11.2006 for the A.Y. 2006-07. In these returns of income the assessee has not made any claim of depreciation. It should be mentioned that for the earlier A.Y. 2003-04, the claim of depreciation was rejected on the ground that the factory in question has been shut down. The assessee accepted this finding of the A.O. that it is not eligible for claim of depreciation for the A.Y. 2003-04. 2.1. For the impugned A.Y. the assessee made an application u/s 154 of the Act on 31.12.2009 claiming depreciation u/s 132(2) of the Act. The A.O. rejected the claim on two grounds i.e. (a) the machinery was not put to use, and (b) the assessee has not claimed depreciation in its return of income and hence cannot be allowed suo moto.
ITA 4093 and 4094/Del/2013 A.Y. 2005-06 and 2006-07 HTE Enterprises (P) Ltd., Moradabad 2.2. On appeal the First Appellate Authority allowed the claim on the ground that two trial runs of the factory were made on 17.1.99 and 1.3.99.
We have heard Shri T.Vasanthan, Ld.Sr.D.R. on behalf of the Revenue and Shri Puneet Sachdev, the Ld.Counsel for the assessee. 3.1. On a careful consideration of the facts and circumstances of the case, orders of lower authorities and case laws cited, we hold as follows.
We are of the considered opinion that the First Appellate Authority was in error in allowing the appeal of the assessee. Admittedly no claim has been made by the assessee in its return of income. The Hon’ble Supreme Court in the case of Goetz India P.Ltd. vs. CIT (2006) reported in 284 ITR 323 (SC) held that a deduction claimed by way of a letter before the Assessing Officer, was to be disallowed on the ground that there was no provision under the Act to make amendment in the return without filing a revised return. In this case on hand, no claim was made by the assessee in its return of income. 4.1. Applying the proposition laid down in the above cited case, we have to hold that no claim can be made by way of a Petition u/s 154 of the Act. In any event these are debatable issues and would not fall within the ken of S.154 of the Act. Hence the Ld.CIT(A)’s orders are erroneous and not in accordance with law. Thus we restore the order of the A.O.
In the result both the appeals of the Revenue are allowed.
Order pronounced in the Open Court on 25th April, 2016.