TMI Blog2011 (12) TMI 665X X X X Extracts X X X X X X X X Extracts X X X X ..... ting the facts of the case. 2.2 The ld.CIT(A) in his order has considered the case of the AO in the appellate order, contention of the assessee and thereafter he has given his decision. It will be useful to reproduce the following paras from the order of the ld.CIT(A) 2.1 A.O. s case The facts in brief relating to the issue, as available in order under appeal are that the assessment was originally completed under section 143(3) determining the total income at NIL due to set off unabsorbed business loss and unabsorbed depreciation. However, later on, it was noticed that the appellant has filed every detail for claim of depreciation for the current year and quantified the claim of depreciation for ₹ 2,37,04,835 but th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellant to file its explanation/objection if any for the proposed rectification. In response to the above the appellant has filed its explanation/objection as under: Please refer to your notice U/s. 154 of the Act in respect of asstt. Year 2000-2001 enclosing therewith audit observations as [per annexure wherein it has been stated that the assessee has not claimed the depreciation of ₹ 2,37,04,835 and current year profit of ₹ 1,00,32,848 has been allowed to be set off against unabsorbed business loss and depreciation of asstt. Year 1993-94 and 1994-95. As per audit Para this has resulted in irregular set off of brought forward losses. In this respect, we would like to submit that section 32 allow depreciation as de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the depreciation has been made in the return, The A.O. in such case is required to compute the income without allowing depreciation allowance. The circular of the Board dated April,11,1955, imposes merely a duty of the officers of the Department to assist the tax payers in every reasonable way particularly in the matter of claiming and securing relief. The officer is required to do no more than the advise the assessee. It does not place any mandatory duty on the officer to allow depreciation if the assessee does not want to claim that. The provision for claim of depreciation is certainly for the benefit of the assessee. If he does not wish to avail of the that benefit for some reasons, the benefit cannot be forced upon him. It i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 16 and section 34 and 37 of the Act. It is rightly said that a privilege cannot be to a disadvantage and an option cannot become an obligation. The assessing Officer cannot grant depreciation allowance when the same is not claimed by the assessee. Further, it was also submitted that amendment in section 32 of the income tax act was made from the Asst. Year 2002-03, wherein effect of above judgment was nullified and it was made mandatory from asst. year 2002-03 that depreciation must be allowed even though not claimed. The amendments were made from the asst year 2002-03 but in this case asset year is 2000-01 where the assesee rightly not claimed the depreciation allowance. In view of above it was requested by the appellant to d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the order under appeal. On going through the order, it is seen that except the findings that the contention of the assessee is not tenable, the AO has not given any findings as to why the submissions of the appellants were not acceptable. It is a fact admitted by the AO in the order that the appellant has not claimed any depreciation in the computation of the total income. Since the appellant has not claimed any depreciation, it is not known how it can be said that it is mistake apparent from the record and is rectifiable u/s 154 of the act. Further, on going through the decision of the Hon ble supreme court relied upon by the learned AR, it is seen that the said decision is squarely applicable in the case of appellant. Further, the amendme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 5 to Section 32(1) cannot be considered as retrospective. The ld. Senior Counsel of the assessee further submitted that resort cannot be made to the provisions of Section 154 for rectifying the mistake which is debatable either on facts or on law. It was therefore, submitted that order u/s 154 has rightly been cancelled by the ld.CIT(A). 2.5 We have heard both the parties. It is a settled law that disputable question of facts and law are not covered under the provisions of Section 154 of the Act. The mistake apparent from record cannot be rectified u/s 154 of the Act. The Hon'ble Madras High Court in CIT vs Sree Senhavalli Textile Mills (P) Ltd. , 259 ITR 77 held that the interpretation of relevant provisions of the Act by the Hon& ..... X X X X Extracts X X X X X X X X Extracts X X X X
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