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2023 (7) TMI 972 - AT - Income TaxAdmissibility of depreciation claim not made in the return of income - assessment of trust - assessee has made a claim before the AO by filing a revised statement of total income - HELD THAT:- We find that in Rajasthan & Gujarati Charitable Foundation Poona [2017 (12) TMI 1067 - SUPREME COURT] has considered the issue of depreciation on fixed assets, when the assessee has claimed expenditure incurred for acquisition of capital asset as application of income for charitable purpose u/s. 11(1)(a) and held that even though, expenditure incurred for acquisition of capital asset, has been claimed as application of income, yet depreciation, would be allowed on assets so purchased while computing income from property held under Trust. There is no dispute, even though, the assessee has not claimed depreciation on fixed assets while filing return of income, but when the assessee has made a claim by filing a revised statement of total income before completion of assessment, the AO is bound to accept the claim of the assessee and allow necessary depreciation as per law. AO is erred in not allowing depreciation claimed by the assessee for the AY 2010-11 In a situation where the assessee is not claimed depreciation on fixed assets for any reason, but the AO while computing income of an assessee, should allow depreciation allowable as per law. Arguments of the AO that any fresh claim can be made only by filing a revised return, we find that although, the law restricts the AO to admit any fresh claim without any revised return, but there is no prohibition for the appellate authorities to admit fresh claim made by assessee to decide the issue and this principle is supported by the decision of Goetze (India) Ltd [2006 (3) TMI 75 - SUPREME COURT]. Therefore, we are not in agreement with the reasoning given by the AO to deny depreciation claimed for earlier assessment years. Claim of depreciation beyond six years for the first time - HELD THAT:- There is no provision under law to make assessment of an assessee beyond six years. Therefore, claim made by the assessee beyond six years cannot be admitted, because, there is no provision under the law to modify the income of the assessee by the AO. Therefore, we are in agreement with the reasons given by the AO that the assessee cannot make a claim beyond six years. However, the claim made by the assessee with regard to assessment years which are come within the period of six assessment years, then, the AO can verify the claim of the assessee in light of provisions of Sec.32(1) of the Act, and allow depreciation on fixed assets as per law. Therefore, we are of the considered view that the issue needs to go back to the file of the AO for further examination of facts with regard to depreciation on fixed assets.
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