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2018 (6) TMI 1511 - AT - Income TaxDisallowance u/s 40(a)(i) on account of non-deduction of TDS - consultancy and legal service charges - depreciation disallowed to the assessee with the help of section 40(a-) Held that:- In the case of Sonic Biochem Extractions P.Ltd [2013 (9) TMI 193 - ITAT MUMBAI] Tribunal did not approve this line of reasoning adopted by the AO and held that depreciation cannot be disallowed to the assessee with the help of section 40(a) because section 40(a) is applicable if the assessee has claimed deduction of expenditure mentioned in the section. Other decisions referred by the ld.counsel for the assessee are also to this effect. CIT(A) has rightly deleted the disallowance Assessment of interest income - whether without filing revised return, the assessee can raise new plea before the ld.CIT(A) in order to exonerate itself from tax liability? - Held that:- A ground would have a reference to an argument touching a question of fact or a question of law or mixed question of law or facts. A legal contention would ordinarily be a pure question of law without raising any dispute about the facts. Not only such additional ground or contention, the Courts have also, as noted above, recognized the powers of the Appellate Commissioner and the Tribunal to entertain a new claim for the first time though not made before the assessing officer. Income Tax proceedings are not strictly speaking adversarial in nature and the intention of the Revenue would be to tax real income. This is primarily on the premise that if a claim though available in law is not made either inadvertently or on account of erroneous belief of complex legal position, such claim cannot be shut out for all times to come, merely because it is raised for the first time before the appellate authority without resorting to revising the return before the assessing officer. Quantification of interest income available with the assessee for set off against pre-operative expenditure in power project implementation - Held that:- We find that the ld.CIT(A) has not independently examined any issue in this order, rather followed order of his predecessor in the assessment year 2008-09. The ITAT did not approve the order of the ld.CIT(A) in the assessment year 2008-09 and respectfully following the order of the ITAT in the assessment year 2008-09, we are of the view that interest income is available with the assessee for set off against pre-operative expenditure which is titled as “project development expenditure".
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