TMI Blog2009 (2) TMI 250X X X X Extracts X X X X X X X X Extracts X X X X ..... the course of hearing of this appeal, therefore, the same is dismissed. 5. Ground No. 2 relates to confirming the addition of Rs. 3,18,24,076 made by the Assessing Officer who disallowed the depreciation. 5.1 Briefly stated, the facts in this case borne out from the records are that the assessee is engaged in the business of computer education and software development. In the return of income filed by the assessee, a claim of depreciation of Rs. 4,56,16,559 has been made which includes depreciation on computer hardware at the rate of 60 per cent of Rs. 2,17,76,386 and on computer software at the rate of 100 per cent of Rs. 2,14,19,699 aggregating to Rs. 4,31,96,085. It was noticed by the Assessing Officer that during the financial year 2000-01 relevant to assessment year 2001-02, the assessee has claimed addition to computer hardware of Rs. 2,10,70,877 and addition to computer software of Rs. 2,62,15,600 aggregating to Rs. 4,72,86,477, the details of which are mentioned at pages 2 and 3 of the order of the CIT(A). 5.2 In this case a survey under section 133A was conducted on 23-12-2002 at the assessee s business premises in Mumbai, Hyderabad/Secunderabad and Chennai. During ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... returned back either to Mr. Ramesh Thadani, Managing Director or to Mr. Deepak Bajaj, Manager In-charge of Finance and Accounts of the assessee-company. 5.7 The findings of the Officers who carried out enquiries were confronted to Mr. Ramesh Thadani and to Mr. Deepak Bajaj. Statements of Shri Ramesh Thadani and Shri Deepak Bajaj were also recorded during the course of survey conducted on 23-12-2002 in which they admitted that some of the purchases of computer software and hardware were not genuine and the assets have neither been received by the company nor the company was in the possession of these assets and, therefore, the claim of depreciation on these computer software and hardware items was not genuine. The relevant portion of the statement of Shri Ramesh Thadani is reproduced by the CIT(A) at pages 5 onwards of his order. 5.8 After considering the materials and the report of the Commission, the Assessing Officer observed that the assessee has not purchased any computer hardware or computer software. Therefore, the claim of depreciation on the assets included in opening WDV claimed to have been acquired in earlier years from those parties as well as on the assets claimed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ards the enquiries conducted by the Assessing Officer either by himself or through commission issued to the other officers of the department at various places. Copies of the statements and findings of enquiries made during the survey were supplied to the appellant vide notices under sections 143(2) and 142(1) dated 24-2-2003 served on the appellant on 25-2-2003. The Assessing Officer provided the opportunity by way of notice under section 142(1) of the Act asking the assessee to produce proprietor/partner/principal officers, as the case may be, of all these parties before him at any time of the assessee s convenience or the party s convenience during the office hours on any day from the receipt of the notice up to 10-3-2003. However, the appellant did not attend on the stipulated date before the Assessing Officer. The assessee did not produce these parties to prove the identity and genuineness of the transactions. Thereafter the Assessing Officer once again issued notice under section 142(1) dated 31-3-2003 and served on 4-4-2003 to furnish information, details and documents and to produce the persons, as mentioned in the earlier notice under section 142(1) dated 24-2-2003 on or be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it is not proper to raise this kind of objection by the appellant in spite of the fact that sufficient opportunities were allowed to the appellant by the Assessing Officer during the course of assessment proceedings to defend its case before the Assessing Officer. 5.4 As regards fourth objection, it is held that this objection is also not tenable in view of the facts as stated by the Assessing Officer in the assessment order itself where every kind of opportunity was provided to the appellant to explain its stand as regards the purchase of assets on which depreciation has been claimed, as regards the payments claimed to have been made and also as regards the statements recorded by the survey party during the course of survey. Therefore, in my opinion I do not find any merit in the objections as listed above which have been raised by the appellant in its written submissions filed before me at the time of hearing of this appeal. Therefore, there is no worth to be mentioned in this kind of objections which have also been met by the Assessing Officer while completing the assessment proceedings. Therefore, all the above objections are rejected. 6. In this regard, the Hon ble Andhr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esh High Court in the case of Smt. Gunwantibai Ratilal v. CIT MP 146 ITR 140 where it has been held that a statement of a deponent can be held to be unreliable by the Tribunal either on the basis of a cross-examination of the deponent or by reference to other material on record leading to the inference that the statement made in the affidavit cannot be held to be true. Therefore, the statements in the affidavit made by Mr. Ramesh J. Thadani have already been held untrue by the Assessing Officer by making examination of Mr. Ramesh Thadani and Mr. Deepak Bajaj during the course of survey operations. Therefore, this contention that affidavit be considered as true is not justified and it is rejected. 8. In view of the above facts and decisions, I am of the view that the disallowance of depreciation made by the Assessing Officer is justified and, therefore, this disallowance is confirmed and this ground of appeal is dismissed. Now, the assessee is in appeal here before the Tribunal. 6. The ld. counsel of the assessee, who appeared before the Tribunal reiterated its contentions raised before the lower authorities. It was further submitted that the CIT(A) was wrong in not consideri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... findings of the Officers, who carried out enquiries, were confronted to Shri Ramesh Thadani and Shri Deepak Bajaj of the assessee-company. The statement of Shri Ramesh Thadani and Shri Deepak Bajaj were recorded during the course of survey in which they categorically admitted that some of the purchases of computer software and hardware were not genuine and they have neither been received by the company nor the company is in the possession of these assets and, therefore, the claim of depreciation on these computer software and hardware items is not genuine. The relevant portion of the statement of Shri Ramesh Thadani has also been made part of the order of the authorities below. 7.3 After going through the contents of the statement, it is amply clear that no computer software or hardware ever purchased. Neither, they were found during the course of survey at the premises of the assessee at various places where survey was conducted. 7.4 On a later stage, the affidavit of Shri Ramesh Thadani was filed by which it was stated that the statement given was under duress. However, nothing has been brought on record. If the statement was made under duress but at the same time, the asset ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f banking channel. It is clear that the assessee-company has obtained bogus bills against non-genuine purchases of computer hardware and software and issued bearer cheques and has withdrawn the cash. 7.5 It is further seen that letters under section 133(6) of the Act were issued to the parties from whom the purchases shown requesting copy of assessee s account in their books and a copy of their acknowledgement of filing return of income, P L account and balance sheet. However, all these letters have been returned by the postal authorities as they were not traceable on the addresses given by the assessee-company. 7.6 As stated above, the issue was examined extensively and found that the assessee miserably failed to prove the genuineness of the purchases. As stated, even at the stage of the Tribunal nothing has been filed in respect of the claim of the assessee for proving the purchases of assets involved as genuine. 8. In view of the above facts and circumstances and in view of the detailed findings given by the ld. CIT(A), we hold that the claim of the assessee was not genuine and rightly rejected by the lower authorities. Accordingly, we confirm the order of the CIT(A) in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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