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2018 (9) TMI 615 - AT - Income TaxAdmissibility of claim in revised return u/s. 139(5) - Depreciation on goodwill disallowed - AO made the disallowance holding that the enhanced claim in the revised return cannot be allowed, as the same was in violation of the provision of section 80 and section 139(1) - CIT(A) confirmed the action of the A.O. on the ground that the return has been filed beyond the time specified and no condonation has been sought u/s.119(2) - Held that:- The revised return was filed on 15.03.2013 and the same was within the due date of filing the revised return in the extant period. There is no dispute about the validity of revised return inasmuch as the A.O. has made the assessment subsequent to the filing of the revised return and the revised return has not been treated as nonest. Moreover, there was no reason to treat the same as nonest as the same was filed within the time mandated u/s. 139(5) of the Act. When the revised return was filed on time as per section 139(1) and 139(5), in our considered opinion, the ld. CIT(A) has erred in holding that the assessee required any condonation u/s. 119(2)(b). The assessee has duly filed the return u/s. 139(1) within the due date. Thereafter, the assessee claimed the depreciation on goodwill in the revised return u/s. 139(5) which was filed on time. This claim of deprecation in the revised return cannot be denied solely on the ground that it was not claimed in the original return. The issue raised by the ld. CIT(A) for seeking condonation for delay in filing in term of section 119(2)(b) is irrelevant CIT(A) while confirming the disallowance has only referred to the time factor involved and he has not made any adverse observation on the validity of assessee’s claim otherwise. He has in fact admitted that on merits the Hon’ble Apex Court’s decision in the case of Smifs Securities Ltd. [2012 (8) TMI 713 - SUPREME COURT] is in favour of the assessee which is an undisputed fact. Accordingly, we set aside the orders of the ld. CIT(A) and decide the issue in favour of the assessee.
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