TMI Blog2009 (12) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... mind, revised the assessment order - the revenue is not able to establish that the view taken by the Commissioner of Income Tax (Appeals) and confirmed by the Tribunal is not in accordance with law. So is the issue with regard to section 234D penalty. The Commissioner of Income tax (Appeals) has observed that section 234D of the Act is applicable only where any refund is granted to the assessee under section 143(1) of the act and the same is payable back to the department on completion of the assessment under section 143(3) of the Act. The assessing officer has not granted refund under section 143(1) of the Act and in the circumstances section 234D is not applicable – decided in favor of assessee - 1343 of 2009 - - - Dated:- 7-12-2009 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome of Rs.11,26,02,970/-. In the reopened assessment, the assessing officer has withdrawn a sum of Rs.1,14,00,164/-, which he considered as excess depreciation granted on the export oriented unit, and also restricted the deduction under section 80IB of the Act to Rs.33,72,436/- instead of Rs.1,82,14,811/-, allowed in earlier order. The assessee carried the matter on appeal to the Commissioner of Income Tax (Appeals), who has deleted the disallowance of depreciation made by the assessing officer as aforesaid on the ground that the method followed by the assessee was correct and the audit party committed a mistake. That order was carried on appeal at the instance of the revenue. The Income Tax Appellate Tribunal upheld the order of the Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the memo of total income and on the balance taxable profit. The assessee added back the book depreciation relating to other units (other than 10B unit) and claimed income tax depreciation at Rs.4,88,20,435/- in respect of other units. There is no mistake in the method followed by the assessee. According to the Commissioner of Income Tax (Appeals), the audit party considered two items out of three items to be actually considered for adjustment and came to the conclusion that there was understatement of total income. The assessing officer, without application of mind to the materials available on record, blindly followed the audit objection and revised the assessment. The exact mistake of the audit party was that after its stand that the b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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