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2023 (8) TMI 967 - HC - Income TaxDeduction u/s 35 - claim denied as this was not part of the Return of Income [“ROI”] - stand of the assessee is, thus, that the document which is appended to the affidavit-in-reply is the copy of the original ROI ? - whether Annexure-II/Annexure-A, which is appended to the PCIT’s affidavit, was the ROI said to have been filed by the respondent/assessee? - HELD THAT:- A careful perusal of Annexure-II which is appended to the appeal, and Annexure-A which is appended on the affidavit of the PCIT dated 21.10.2018, shows that the documents are titled “Computation of Income and Tax Thereon (ITR-6)”.Clearly, this is not the ROI filed by the petitioner. As noticed both by the Tribunal and CIT(A), this a computation of income concerning the respondent/assessee which was carried out by the Central Processing Centre (CPC), Bangaluru. The weight of the evidence is also in favour of the respondent/assessee, which is also evident from, what is noted by the AO in paragraph 1 and 2 of the assessment order dated 25.02.2013. Thus, having regard to the record, and the affidavit of the PCIT dated 31.10.2018, we are of the opinion, as noted above, that the weight of the evidence which was placed before the CIT(A) and the Tribunal is clearly in favour of the respondent/assessee. We find no reason to interfere with the impugned order. TDS u/s 195 - commission paid to a non-resident foreign agent - whether accrued or deemed to have accrued in India? - HELD THAT:- As no material was brought on record by the appellant/revenue, which could have established that the commission paid to a non-resident foreign agent had accrued or deemed to have accrued in India.Therefore, since no income chargeable to tax arose in the hands of the non-resident, as per the provisions of the Act, there was no obligation to deduct tax at source u/s 195 of the Act. Given this position, in our view, the Tribunal rightly sustained the deletion of disallowance u/s 40(a)(i). Disallowance u/s 37 - Assessee has not discharged its initial onus - HELD THAT:- Tribunal sustained the deletion of disallowance as it was made by the AO solely based on the information available in the Annual Information Return [AIR]. According to the Tribunal, since there was a mismatch between the books of accounts of the assessee and the information available in AIR, the AO should have conducted an enquiry before deleting the expenditure claimed by the assessee.We find nothing wrong in the approach adopted by the Tribunal. Higher rate of depreciation on electrical fittings by holding the same as the plant - HELD THAT:- Tribunal, in our opinion for good reason, has concluded that electric fittings were amenable to higher rate of depreciation, as they were part of plant and machinery, and not furniture and fixtures. This view was backed by a decision of the coordinate bench of this court BSES Rajdhani Powers Ltd [2010 (8) TMI 58 - DELHI HIGH COURT].
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