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2016 (7) TMI 736 - ITAT DELHI

2016 (7) TMI 736 - ITAT DELHI - TMI - Rectification of mistake - Penalty u/s 271(1)(c) - claim of depreciation on Temporary Wooden structures like interiors, glow signs etc; taken over from Erstwhile GTB upon amalgamation pursuant to GOI notification @ 100% - Held that:- In assessee’s own case, it is observed that the order passed u/s 154 of the Act date 30.11.2007 has been quashed by this Tribunal. This Tribunal has observed that the issue relating to depreciation is a debatable issue as it req .....

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B For The Appellant : Shri KVSR Krishna CA ForThe Respondent : Shri Sunil Chander Sharma, CIT DR ORDER PER BEENA A. PILLAI, JM: The present cross appeals have been filed by the assessee as well as Revenue against the order dated 16.08.2013 passed by Ld. CIT(A) XVI New Delhi for the Assessment Year 2005-06 on the following grounds of appeal: A. I.T.A.No. 5866/Del/2013: 1. The Ld CIT(A) has erred in law and on facts in confirming the penalty u/s 271 (1 )(c) on claim of depreciation on Temporary Wo .....

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of the CIT(A) as well as AO that the assessee has furnished inaccurate particulars of income is wrong and bad in law and on facts. There is no case for levy of any penalty u/s 271(1)(c). 3. The CIT(A) has failed to appreciate that the erstwhile Global Trust Bank was amalgamated into OBC on 14.8.2004 by the Govt. of India u/s 45(7) of the Banking Regulation Act to safeguard the interest of the deposit holders. Therefore, the entire assets Block, stock and barrel at WDV became the actual cost to O .....

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dated to review the assets and take over at WDV as per books or at realizable value. The assets described under furniture & fixtures namely glow signs, interiors of the erstwhile bank has nil value and should be written off 100% which has been done by the assessee. Therefore, the claim made by the assessee is bonafide and no penalty should be levied. 5. Without prejudice, whether the assessee would be allowed depreciation on temporary wooden structures @15% or 100% is a debatable issue and c .....

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roceedings on a claim of depreciation by the assessee as the Ld. A.O. found explanation offered by the assessee to be false / unsustainable. Ld. A.R. submitted that this Tribunal in I.T.A. No. 21/Del/2011 in assessee s own case, for the quantum appeal, has deleted the disallowance made by the Assessing Officer on account of depreciation. The Hon ble Tribunal held as under: 5. We heard the rival submission and perused the material on record. In the present appeal, we are required to adjudicate wh .....

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furniture and fixtures and the balance of depreciation claim of ₹ 12,14,26,126/- was withdrawn by 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 amalgamat .....

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@ 100% in respect of the interiors which was purely wooden structures and the full details in respect of this claim of the expenditure have been filed at the time of original assessment proceedings. The Assessing Officer after considering the details filed allowed the claim in the original assessment proceedings. In the circumstances, the claim for deduction of depreciation cannot be withdrawn by exercising power under Section 154 of the Act based on the change of opinion. The Hon ble Supreme Co .....

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requires examination of materials, details, particulars and application of mind and therefore it cannot be a subject matter of rectification under Section 154 of the Act. The Hon ble Madras High Court in the case of CIT Vs. New Woodlands Hotel (P.) Ltd., (2015) 228 Taxmann 360 (Mad.) held that in a case where 100% depreciation was allowed in the assessment proceedings on vapor absorption machine and the Assessing Officer by exercising the power under Section 154 of the Act sought to allow deprec .....

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as apparent from the record. Rectification is not possible when question is debatable. Moreover, a point which was not examined on the facts or in law cannot be dealt with as a mistake apparent from the record. Therefore, following the ratio laid down in the above case, we hold that the issue whether the deprecation @100% or 15% on interiors which are purely wooden structures is a debatable point as it requires examination of details and cannot be rectified by exercising the power vested under S .....

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fied u/s 154 of the Act. As the order under which disallowance of depreciation was made, stands cancelled by this Tribunal, the penalty proceedings initiated in respect of the same cannot be sustained. We accordingly quash the penalty order passed by the Assessing Officer. Accordingly, the grounds raised by the assessee in this appeal, stands allowed. 3.1 In the result, appeal filed by the assessee stands allowed. B. I.T.A.No. 6068/Del/2013: On the facts & in the circumstances of the case, t .....

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at in quantum appeal the first appellate authority has well established the factor that the assessee had misappropriated with the figures at the time of filing of return. 4. The revenue has preferred this appeal before us against the penalty being deleted in respect of claim being disallowed relating to deprecation on account of furniture and fixtures. 4.1 Ld. CIT(A) while dealing with this issue, in its order has held as under: 5. So far as the second issue is concerned, at the time of filing o .....

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er appeal effect, the losses of EGTB eligible for setoff against the appellant is ₹ 104,32,81,253/- (Rs.111,45,95,050/- minus ₹ 7,13,13,797/-) as against the returned loss of ₹ 111,45,95,050/-. Further, the balance of ₹ 7,13,13,797/- is consequent to addition in the assessment of EGTB and has been considered for levy of penalty in the hands of EGTB. So far as OBC is concerned it is only giving effect to the losses of EGTS which are available to OBC. In view of the above t .....

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