TMI Blog2010 (3) TMI 828X X X X Extracts X X X X X X X X Extracts X X X X ..... Goetze (India) Ltd. (2006 - TMI - 5171 - SUPREME Court) is misconceived in law, none of the grounds pleaded or urged at the time of hearing does the impugned order of the Tribunal give rise to any question of law, much less a substantial question of law, appeal is accordingly dismissed - 454 of 2009 - - - Dated:- 9-3-2010 - MEHTA D. A., DEVANI H. N. MS., JJ. JUDGMENT D. A. Mehta J.- 1. In this tax appeal under section 260A of the Income-tax Act, 1961 ("the Act"), filed by the Revenue for the assessment year 1997-98, the following question of law stated to be substantial question of law has been proposed : "Whether the Appellate Tribunal is right in law and on the facts in reversing the order passed by the Commissioner o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... preciation on the merits and came to the conclusion that the claim for depreciation as per the valuation report could not be accepted in view of Explanation 2 to section 43(6) of the Act. 5. The assessee carried the matter in appeal before the Commissioner (Appeals) but failed. Hence, the assessee filed a second appeal before the Tribunal. The Tribunal, vide the impugned order dated February 15, 2008, held that the assessee was entitled to the claim of depreciation and directed the Assessing Office to allow the depreciation on the basis of the valuation of the assets submitted on September 22, 1998. 6. Assailing the aforesaid order, learned senior standing counsel appearing for the appellant-Revenue submitted that the Tribunal had c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the depreciation on the basis of the valuation report. The claim of depreciation was revised subsequently, vide letter dated September 2, 1998, during the course of assessment proceedings. The Commissioner of Income tax (Appeals) should not have directed the Assessing Officer to consider the revised claim in view of the decision of the hon'ble Supreme Court in the case of Goetze (India) Ltd. v. CIT [2006] 284 ITR 323 (SC)." 8. Hence, it is apparent that the Revenue had not raised any challenge on the merits of the claim before the Tribunal. Therefore, if the Tribunal did not record any finding on the merits by way of an elaborate discussion, no fault can be found with the Tribunal. 9. However, factually, the submission that the Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the apex court in the case of Goetze (India) Ltd. [2006] 284 ITR 323 (SC) was only in relation to the power of the Assessing Officer to entertain a claim for deduction otherwise than by filing a revised return. The apex court has made it clear that "the issue in this case is limited to the power of the assessing authority and does not impinge on the power of the Income-tax Appellate Tribunal under section 254 of the Income-tax Act, 1961". 12. In the circumstances, the entire contention based on application of decision in case of Goetze (India) Ltd. [2006] 284 ITR 323 (SC) is misconceived in law. 13. In the circumstances, on none of the grounds pleaded or urged at the time of hearing does the impugned order of the Tribunal give rise ..... X X X X Extracts X X X X X X X X Extracts X X X X
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