TMI Blog2012 (7) TMI 976X X X X Extracts X X X X X X X X Extracts X X X X ..... bstantive grounds have been raised ie. claim of deduction under sec.35D of the Act of ₹ 18,53,614/- of share premium amount and that of additional depreciation of ₹ 66,07,471/-, disallowed by Assessing Officer and CIT(Appeals). He has fairly stated that he does not wish to press the first ground. Therefore, he has submitted that CIT(Appeals) has erred in confirming disallowance of additional depreciation made by Assessing Officer. The Authorised Representative s submission has been opposed by Departmental Representative who has supported the order. Therefore, we frame following issue for adjudication :- Whether order of CIT(Appeals) confirming disallowance of additional depreciation of ₹ 66,07,471/- made by Assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Assessee even if the same is not claimed. In support thereof, he has referred to statutory provisions, more particularly Explanation 5 of sec.32(1)(ii) of the Act. Regarding case law of Goetz India (supra) he clarified that the said decision does not impinge upon the power of the ITAT under sec.254 of the Act. 6. The Departmental Representative has opposed the Authorised Representative s submissions and placed reliance in CIT(Appeals) s order. 7. We have considered rival contentions at length and also perused the relevant findings as well as case law referred. We find that admittedly, the Assessee had claimed the deduction of depreciation on machinery in question in scrutiny proceedings. It also explained the reason for not cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... venue. 8. There is yet another aspect of the issue. After going through the case law (supra), it emerges that Hon ble Apex Court itself has clarified that the Tribunal s jurisdiction under sec.254(1) of the Act does not stand impinged in any manner so as to do justice. 9. Accordingly, we are of the considered view that on legal principles, the Assessee is entitled for mandatory deduction of additional depreciation. However, we find that there is no adjudication on merits either by Assessing Officer or CIT(Appeals). Faced with this situation, we deem it appropriate to direct the Assessing Officer to re-examine the claim in accordance with law after affording adequate opportunity of hearing to the Assessee who would be at liberty to ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
