TMI Blog2012 (8) TMI 97X X X X Extracts X X X X X X X X Extracts X X X X ..... ored back to his file - in favour of assessee for statistical purpose. Disallowance of depreciation - Held that:- As no material was brought on record before the tribunal to controvert this finding of CIT(A) that the assessee joint venture is not the owner of the assets - as this argument was not raised by the assessee before the authorities below that the assets in question on which the depreciation is claimed by the assessee were used by the assessee and on account of user of those assets only, the income was assessed in the hands of the assessee, and therefore, the assessee is at least beneficial owner of those assets and hence, eligible for depreciation - this matter should go back to the file of Ld. CIT(A) for fresh decision - in f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 3. Initiation of penalty proceedings u/s 271(1)(C) of the Act is not justified. 4. Levy of interest u/s 234A, 234B, 234C 234D of the Act are not justified. 3. The facts, in brief, are that the case was selected for scrutiny and the assessments u/s 143(3) of the Income Tax Act, 1961 (hereinafter referred to as the Act ) was concluded vide order dated 28.02.2005. The Assessing Officer assessed the assessee s income on protective basis and also disallowed the claim of depreciation of Rs.8,16,449/-. The assessee, feeing aggrieved by the order, carried the matter before the Ld. CIT(A), who after considering the submissions of the assessee, dismissed the appeal relying upon the order of his predecessor in assessee s case for the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... AOP. The Learned Assessing Officer has not accepted the status of assessee as that of an AOP and opined that income and losses belongs to the individual member companies and accordingly income and losses are assessable in the hands of the individual member companies is chargeable in the hands of the member companies. However, the assessee has filed the return of income and to protect the interest of the revenue, he has assessed the assessee in the status of an AOP only on protective basis. In appeal, Learned Commissioner of Income Tax (Appeals) held that the assessee could not have any grievance against the above protective assessment and the issue of protective and substantive assessment is to be decided in the hands of the member compani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Commissioner of Income Tax (Appeals) has disposed of the matter in respect of assessment year 2001-02. Since the ground is identical in this year also, following the decision of Hon ble Co-ordinate Bench in ITA No.2414/Ahd/2004, this matter is also restored back to the file of Ld. Commissioner of Income Tax (Appeals) for adjudication afresh on merit after affording reasonable opportunity of hearing to both the parties in accordance with law. 7. In the result, this ground of appeal is allowed for statistical purpose. 8. Next ground is against confirmation of addition of Rs.8,16,449/-, made by the Assessing Officer on account of disallowance of depreciation. It is submitted by the Ld. Authorised Representative that this ground is conse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. In the present year also, although this argument is raised before us but no material is available before us to examine the veracity of this contention of Ld. A.R. of the assessee and moreover, this contention was not raised by the assessee before the authorities below and, therefore, we feel it proper that in the interest of justice, this matter should go back to the file of Ld. CIT(A) for fresh decision after examining these contentions of Ld. A.R. of the assessee and hence, we set aside the order of Ld. CIT(A) on this issue and restore this matter back to his file for a fresh decision. He should examine the veracity of the contentions of the assessee that the assets in question on which the assessee is claiming depreciation in the pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the claim of the appellant to be assessed in the status of Joint Venture. Both the lower authorities have further erred in assessing returned income on the protective basis in the hands of AOP and the same income to be assessed separately in their respective hands on substantive basis. Ld. CIT(A) ought to have given independent finding and assessed income in the hands of the AOP on the regular basis. 2. Ld. CIT(A) has erred in confirming addition of Rs.7,86,699/- made by AO disallowing depreciation claimed by the appellant though the revenue authorities have allowed a similar claim in the preceding years. Ld. CIT(A) ought to have deleted the impugned addition by following the ratio laid down in the appellate orders of earlier years. 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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