TMI Blog2016 (1) TMI 746X X X X Extracts X X X X X X X X Extracts X X X X ..... rectified by exercising the power vested under Section 154 of the Act. Therefore, we quash the order of the Assessing Officer passed under section 154 of the Act and allow this ground of appeal. - Decided in favour of assessee - ITA No. 21/Del/2011 - - - Dated:- 30-10-2015 - SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER AND SHRI KULDIP SINGH, JUDICIAL MEMBER Appellant by : Sh. K.V.S.R. Krishna, CA Respondent by : Sh. P. DAM Kanunjna, Sr. DR ORDER PER INTURI RAMA RAO, A.M.: The appeal filed by the assessee-bank is directed against the order of ld. CIT(A), dated 20.10.2010 passed for the assessment year 2005-06. The assessee-bank raised the following grounds of appeal: i. The Hon ble CIT(A) has erred in law and on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x I of the Income Tax Rules, 1962. The assessee s claim of depreciation @ 100% should be accepted. v. The CIT(A) has erred in not allowing the business losses of ₹ 111,45,95,050/- of Erstwhile Global Trust Bank as declared in the return for the Asstt. Year 2005-06. The appellant claims that the Erstwhile Global Trust Bank Ltd. is no longer existing and has been amalgamated w.e.f. 14.08.2004 and the loss of Erstwhile Global Trust Bank Ltd. as returned and existing as on the date of amalgamate shall be deemed to be the loss of Oriental Bank of Commerce because of the amalgamation and should be accepted as such i.e., the returned loss of ₹ 111,45,95,050/- should not be disturbed but allowed to the assessee bank. vi. The above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proposed to be added back. The assessee bank objected the rectification proceedings vide his letter dated 30.11.2007 on the ground that there was no mistake apparent from record arising out of the order sought to be rectified and placed reliance on the decision of the Hon ble Apex Court in the case of T.S. Balaram, ITO Vs. Volkart Bros and Others, 82 ITR 50. The assessee company contended that the claim of 100% depreciation on the furniture and fixtures is a debatable issue and in exercise of the power vested under Section 154 of the Act, the depreciation allocated at 100% cannot be withdrawn. He further submitted that the claim of 100% depreciation on furniture and fixtures is in accordance with law and the issue was examined by the As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the claim of depreciation @ 15% in the hands of GTB were also duly supported by the Auditor s Report. Before me also, the Ld. AR has not furnished any basis for charging the classification to temporary wooden structure and no documentary proof in this regard has been furnished. Depreciation in the case of GTB for A.Y. 2005-06 has also been restricted to 15% in the assessment order u/2 143(3). In view of the above, I do not find any justification to interfere with the action of the AO in this regard. This ground of appeal is, accordingly, rejected and the disallowance of ₹ 12,14,26,196/- is confirmed. Being aggrieved, the assessee is before us with the present appeal. 2. The assessee bank raised six grounds of appeal. Gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him vide order dated 30.11.2007 passed under Section 154 of the Act. The sole ground, on which the Assessing Officer exercised the power of rectification is that in the hands of Global Trust Banks Ltd. which had been amalgamated with the assessee bank on 14th August, 2004 vide Government of India notification dated 13th August, 2004, the depreciation was allowed @ 15 till the date of amalgamation. In our considered opinion, this reasoning does not enable the Assessing Officer to exercise the jurisdiction under Section 154 of the Act. There is no specific provision under the provisions of Income Tax Act that the depreciation on the assets acquired pursuant to the scheme of amalgamation should be allowed at the same rate of depreciation which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment proceedings on vapor absorption machine and the Assessing Officer by exercising the power under Section 154 of the Act sought to allow depreciation @ 25% on the ground that the said machine was a part of centralized air condition. The High Court held that such power cannot be exercised as it is a debatable issue which requires the examination of material details, particulars and application of mind. Similarly, the Hon ble Supreme Court in the case of CIT Vs. Hero Cycle Pvt. Ltd., 228 ITR 463 held that the rectification under Section 154 can only be made when a glaring mistake of fact or law committed by the Officer passing the order as apparent from the record. Rectification is not possible when question is debatable. Moreover, a point ..... X X X X Extracts X X X X X X X X Extracts X X X X
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