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TMI Blog2015 (6) TMI 524X X X X Extracts X X X X X X X X Extracts X X X X ..... rbles and granites, with specialization inlaying designs on marbles and granites. The return of income for the A.Y. 2008- 09 was filed by it on 31.03.2009 declaring total income of Rs. 53,32,122. A search and seizure action under section 132 was conducted in the case of M/s. Midwest Granites P. Ltd., ("MGPL") on 24.07.2008. During the course of the said action, certain material pertaining to the assessee was found. A notice under section 153C therefore was issued by the A.O. on 16.04.2010 calling inter alia for the return of income for A.Y. 2008-09. In response to the said notice, the return of income for A.Y. 2008-09 was filed by the assessee on 10.11.2010 declaring total income of Rs. 27,55,824. In the said return, additional claim for de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -2010 vide order dated 31.12.2010 on total income as declared by the assessee in the return of income originally filed at Rs. 28,07,290. 4. Against the orders passed by the A.O. for A.Ys. 2008-2009 and 2009-2010, appeals were preferred by the assessee before the Ld. CIT(A). During course of appeallate proceedings before the Ld. CIT(A), it was contended on behalf of the assessee that the assessment under section 153C/153A is completely a fresh assessment and there is no embargo placed by law on declaration of correct amounts of income by making correct claims for expenses/depreciation. It was contended that the A.O. therefore was not justified in law in not entertaining the additional/new claim of the assessee for depreciation and interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assess the additional income of assessee or to beneficial of revenue only. The 'appellant's objection on the said Proposition is validly justified, for the reason that there is a fundamental difference between assessment under section 147 and assessment as per provisions of Sec. 153A/153C, with assessment u/s. 153A/153C are completely a set of fresh assessment and the return of income furnished u/s. 153A/153C, treated as if such return were a return required to be furnished u/s. 139(1) of LT. Act. Accordingly, the A.O. is duty bound to bring the cogent material to disprove the claims of assessee. In this case the additional claims towards interest on Term loan and depreciation were made with relevant support of evidence, as such the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merit in the contention of the assessee that the additional/new claim made for deduction on account of interest and depreciation by way of the revised return validly filed in response to the notice under section 142(1) ought to have been entertained by the A.O.. He accordingly directed the A.O. to adopt the income for A.Y. 2009-2010 as declared by the assessee in the revised return of income for the following reasons given in paragraph No.5.4 of his impugned order. "5.4. As far as, AY 2009-10 is concerned, the original return as well as the return in response to notice u/s. 142(1) were filed subsequent to the date of search. The original return filed on 30.09.2009 whereas the revised filed on 14.10.2010. The revised return is considered t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r passed by the Ld. CIT(A) is contrary to the provisions of law and against all cannons of natural justice. 2. The Ld. CIT(A) has erred in allowing the enhanced claims of interest on loans and depreciation in the proceedings under section 153C of the I.T. Act 3. That under the facts and circumstances of the appellant's case, the Ld. CIT(A) ought to have dismissed the enhanced claims relating to interest and depreciation and restore the income admitted in the returns of income filed originally. 4. The CIT(A) ought to have appreciated the fact that the assessment or reassessment made pursuant to notice under section 153C is not denovo assessment; and therefore, there is no merit in the ground to make a new claim of deduction or allowanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ortunity to the A.O. to verify the same on merits. A perusal of the impugned order of the Ld. CIT(A) also shows that neither the Ld. CIT(A) has given any specific finding on the merit of the assessee's claim nor has he directed the A.O. to verify the same on merit and this position is not disputed even by the Ld. Counsel for the assessee. We therefore, modify the impugned order of the Ld. CIT(A) and restore the matter to the file of the A.O. for the limited purpose of deciding the issue relating to the assessee's claim for depreciation on office building and interest on loan availed for the said building on merit in accordance with law after verifying all the relevant aspects. Needless to observe that the A.O. shall afford proper and suffic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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