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2016 (10) TMI 158 - ITAT BANGALORE

2016 (10) TMI 158 - ITAT BANGALORE - TM - Allowance of depreciation - rectification of mistake - whether Ld.CIT(A) is justified in granting relief to the assessee by allowing the depreciation without appreciating that the issue involved is debatable in nature and therefore cannot be considered in the proceedings u/s.154 of the IT Act? - Held that:- We note that the impugned order has been passed by the CIT (Appeals) in the appeal filed on 27.1.2010 against the assessment order dt.23.12.2009. The .....

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der Section 154 in the appellate proceedings against the assessment order then the issue can be looked into only from the angle of the allowability of the claim on merits. We find that both these claims were covered by the various decisions of Hon'ble High Courts including the Hon'ble jurisdictional High Court and therefore there was no error or illegality in the order of the CIT (Appeals) in entertaining such claims of the assessee which are covered by binding precedence - As it is clear fr .....

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f section 154 becomes irrelevant and academic in nature. Hence we do not find any reason to interfere with the impugned order of the CIT (Appeals). - Decided against revenue - I.T.A. No.899/Bang/2014 - Dated:- 19-8-2016 - SHRI ABRAHAM P GEORGE, ACCOUNTANT MEMBER AND SHRI VIJAY PAL RAO, JUDICIAL MEMBER For The Appellant : Dr.P.K. Srihari, Addl. CIT (D.R.) For The Respondent : Shri S.R. Raghunatha, C.A. ORDER Per Shri Vijay Pal Rao, J.M. : This appeal by the revenue is directed against the order d .....

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ified in granting relief to the assessee by allowing the depreciation amount of ₹ 1,29,81,735/- without appreciating that the issue involved is debatable in nature and therefore cannot be considered in the proceedings u/s.154 of the IT Act? 3. Whether on the facts and the circumstances of the case, the Ld.CIT(A) is justified in holding that the assesse is eligible to carry forward the earlier year expenditure of Rs.l,70,31,693/- and adjust it towards current year income without appreciatin .....

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ed Registration under Section 12A of the Income Tax Act, 1961 (in short 'the Act'). The assessee filed its return of income for the year under consideration on 29.10.2007 and claimed exemption under Sections 11 & 12 of the Act. Accordingly, the assessee declared a total income at NIL. The scrutiny assessment under Section 143(3) was completed vide order dt.23.12.2009 whereby the Assessing Officer determined the total income of ₹ 80,26,689 and taxable income of ₹ 35,15,757 .....

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56 instead of ₹ 1,61,92,963 as application of funds and - To allow deduction for depreciation claimed on fixed asset to the extent of ₹ 1,29,81,735. The Assessing Officer rejected the rectification application filed under Section 154 of the Act vide order dt.3.3.2010. Thus the order passed under Section 154 of the Act dt.3.3.2010 merged with the assessment order which was the subject matter of the appeal before the CIT (Appeals). The CIT (Appeals) while passing the impugned order has .....

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well as learned Departmental Representative and considered the relevant material on record. The only grievance of the revenue is that the claim made by the assessee in the petition under Section 154 of the Act were beyond the scope of rectification. Therefore the CIT (Appeals) was not justified in allowing the claim of the assessee which could not be entertained by the Assessing Officer under Section 154. The ld. D.R. has forcefully contended that the scope of section 154 is limited and only app .....

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y the decision of the Hon'ble jurisdictional High Court as well as by various decisions of this Tribunal and therefore when the order of the Assessing Officer is contrary to the decision of the Hon'ble High Court then it amounts a mistake apparent on record. He has further contended that even otherwise the appellate authority has the jurisdiction and power to entertain such claim in the appeal proceedings. He supported the impugned order of the CIT (Appeals). 6. Having considered the riv .....

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thout going into the issue of the scope of section 154 of the Act, we are of the view that when the CIT (Appeals) has the jurisdiction to entertain the said claim raised by the assessee in the petition under Section 154 in the appellate proceedings against the assessment order then the issue can be looked into only from the angle of the allowability of the claim on merits. We find that both these claims were covered by the various decisions of Hon'ble High Courts including the Hon'ble ju .....

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e of Escorts Ltd. in 199 ITR 43 (SC) by the A.O. It is argued before me that this is a covered issue and the facts of case cited are different. The issue is covered by the decision of Hon'ble Karnataka High Court in the case of CIT Vs. Society of the Sisters of St. Anne 146 ITR 28. The appellant cited various other cases including Sri Adichunchanagiri Shikshana Trust Vs. Addl. CIT in ITA No.775/Bng/2009 (ITAT A Bench, Bangalore) 4.3 Similarly, on the disallowance of brought forward earlier y .....

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