9911796707
TMI Blog2012 (8) TMI 97X X X X Extracts X X X X X X X X Extracts X X X X ..... s grossly erred in law and on the facts in following the appellate decision for A.Y. 2001-02 and thereby confirming the order of AO in rejecting 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.8,16,449/- made by AO disallowing depreciation claimed by the appellant though the revenue authorities have allowed a similar claim in the precedin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct is not disputed by the Ld. Departmental Representative, however, Ld. Departmental Representative supported the orders passed by the authorities below. 5. We have heard the rival submission and perused the material available on record. We find that in this case Ld. CIT(A) has dismissed the appeal of the assessee following the decision of his predecessor in respect of assessment year 2001-02 in the assessee's own case. It is not disputed that the order of Ld. CIT(A) in respect of assessment year 2001-02 was challenged before the Hon'ble Coordinate Bench of this Tribunal in ITA No.2414/Ahd/2004. The Hon'ble Tribunal in ITA No.2414/Ahd/2004 has held as under:- "We have heard the rival submissions and perused the orders of the lower authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eal against such order which should be decided by the appellate authority on merits. In the instant case, in our considered view, the Learned Commissioner of Income Tax (Appeals) was not justified in not adjudicating the issue on merits and dismissing the appeal of the assessee. We therefore, set aside the order of the Learned Commissioner of Income Tax (Appeals) and restore the matter back to the file of the Learned Commissioner of Income Tax (Appeals) for adjudication afresh on merits after allowing reasonable opportunity of hearing to both the parties in accordance with law. Thus, this ground of appeal of the assessee is allowed for statistical purpose." 6. From the above, it is evident that the order of Commissioner of Income Tax (Appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... least beneficial owner of the assets and therefore, eligible for depreciation on those assets. 10. We have considered the rival submissions and perused the material on record. We find that in A.Y. 2001-02, in ITA No.2414/Ahd/2004, this issue was decided by the Tribunal against the assessee on the basis that no material was brought on record before the tribunal to controvert this finding of Ld. CIT(A) in that year that the assessee joint venture is not the owner of the assets. We further find that this argument was not raised by the assessee in that year 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is because of the reason that this contention was not raised by the assessee in that year regarding beneficial ownership of the assets. This ground is allowed for statistical purpose. 11. Next ground is against initiation of penalty proceedings u/s 271(1) (C ) of the Act. So far this ground is concerned, the same is premature, therefore, does not require any adjudication at this stage. 12. The last ground is against the levy on interest u/s 234A, 234B, 234C and 234D. This ground being consequential, is disposed of accordingly. 13. In the result, this appeal is partly allowed for statistical purpose. Now we take ITA No.630/Ahd/2008 14. In this appeal the grounds of appeal are as under:- "1. The Ld. CIT(A) has grossly erred in law and o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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