TMI Blog2016 (7) TMI 913X X X X Extracts X X X X X X X X Extracts X X X X ..... s not the case of the revenue that on the issue of deduction under section 35D, the deduction for earlier years had been withdrawn, inasmuch as, without disturbing the earlier years, it cannot be said that the claim of deduction under section 35D was not allowable to the assessee. Thus, the Tribunal, on merits, has found that the view adopted by the Assessing Officer to be sustainable view. The revenue had not brought any material on record to demonstrate that the view adopted by the Assessing Officer was an impermissible view and was contrary to law so as to warrant exercise of revisionary powers under section 263 of the Act. Having regard to the findings recorded by the Tribunal on the merits of each claims of the assessee, it is evide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 declaring total income at ₹ 1,46,39,970/-. The case came to be selected for scrutiny and by an order dated 28.03.2013, the assessment came to be framed under section 143(3) of the Act whereby, the total income of the assessee was determined at ₹ 27,74,59,380/-. Subsequently, the Commissioner of Income Tax, upon examination of the case record of assessment, noticed that: (i) ₹ 17.08 crore was required to be disallowed under section 14A read with rule 8D of the Act but only an amount of ₹ 6.12 crore was disallowed by the Assessing Officer; (ii) The assessee had claimed deduction of ₹ 3,75,48,727/- on account of amortization value of leasehold land which was not allowable as according to him, the Assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and therefore, the assessee has rightly claimed the depreciation. With regard to the deduction claimed and allowed under section 35D of the Act, it was submitted that the preliminary expenses were incurred before the commencement of business and were deductible under clause (i) of section 35D(1) of the Act and the same were allowable even to businesses which were not industrial undertaking or units. 4. The Commissioner of Income Tax (Appeals), after considering the submissions of the assessee, agreed with the assessee with regard to the disallowance made under section 14A of the Act, however, he did not accept the submission of the assessee as regards the other three issues. He, accordingly, passed the order dated 31.03.2015 under secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im for depreciation at the rate of 15% on office equipment is concerned, if in the earlier years, no inquiry was caused and the deduction was given without such inquiry, the Commissioner would not be estopped from invoking the jurisdiction under section 263 of the Act. As regards the claim of deduction of ₹ 3,75,48,727/- on account of amortized value of leasehold land under the provisions of section 35D of the Act, it was submitted that the said claim does not fall under section 35D of the Act and the Assessing Officer had wrongly allowed the deduction. It was further submitted that the depreciation claimed at the rate of 15% on office equipments as against 10% admissible, was also wrongly allowed by the Assessing Officer without prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... computation of total income, which is placed at page 27 to 30 of the paper book, that the claim of assessee of amortized value of leasehold land development was not u/s. 35D whereas ld. CIT in the order has held that the claim of assessee was u/s 35D and therefore in such a situation, A.O. s order on that issue cannot be considered to be erroneous more so because there was no such claim u/s 35D by assessee. As far as the claim of depreciation on office equipments @ 15% is concerned, it is assessee s submission that the claim of depreciation at 15% on the office equipment which comprises of similar items as are in the present year, has been allowed by the A.O. in earlier years in the assessment order passed u/s 143(3) and those orders have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... record of the case reveals that the claim of amortized value of leasehold land was not under section 35D and has, accordingly, found that the order of the Assessing Officer on this issue cannot be considered to be erroneous, more so, when there was no such claim under section 35D by the assessee. 9. As regards the claim for depreciation on office equipments at the rate of 15%, the Tribunal noted that such claims had been allowed in earlier years in the assessment orders passed under section 143(3) of the Act and such orders had attained finality. Insofar as the claim under section 35D of the Act is concerned, the Tribunal has found that the deduction under section 35D had been allowed in the earlier years also and has rightly observed th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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