TMI Blog2017 (7) TMI 569X X X X Extracts X X X X X X X X Extracts X X X X ..... . Reduction of excess depreciation credited to the Profit and Loss Account - Held that:- We find merit in this contention of the assessee that claim not made in the return of income can be made during assessment proceedings. The claim of the assessee be entertained. Having entertained the claim we find that the Ld. Counsel for the assessee has shown us the inclusion of the impugned sum in the Profit and Loss Account and has further tried to demonstrate through its computation of income that the same was not reduced. But we find that the facts do not appear to be evident and clear. We, therefore consider it fit to restore the issue to the file of the Ld. CIT (Appeals) to adjudicate the issue in accordance with law. We may add that the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The same is, therefore, treated as dismissed. 4. In ground No.2, the assessee is aggrieved on account of the action of the Ld. CIT (Appeals) in not entertaining the following claims of the assessee made by way of filing letter before the Assessing Officer : 1. Peak load violation charges paid to PSEB Rs. 2,57,643/- 2. Excess depreciation reduced From the income of the assessee Rs.4,75,06,021/- 5. Brief facts relating to the issue are that during the course of assessment proceedings the assessee filed a revised computation of income claiming deduction on account of sum paid as violation charges of peak l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ture, the learned counsel for the assessee expressed his inability to do so. In view of the same, we hold that there is no infirmity in the order of the learned CIT (Appeals) in disallowing the claim of peak load violation charges paid amounting to ₹ 2,57,643/-. 7. As regards the remaining issue relating to reduction of excess depreciation credited to the Profit and Loss Account, Ld.AR contented that excess depreciation computed as per Companies Act, was included in its income by way of transfer entry which needed to be reduced while computing the taxable income, since it was not in the nature of income and was just an adjustment entry and further that the assessee was only entitled to claim depreciation as per the Income Tax Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be taxed merely because the assessee forgot to claim the exemption of deduction under some belief. The Tribunal held that under section 4 of the Income Tax Act only true and correct total income is to be assessed and it is the duty of the tax collector to collect the legitimate tax due not a penny less, nor a penny more. The Tribunal held at paras 8 to 11 of its order as follows: 8. Rival submissions of the parties have been considered carefully in the light of case law referred to and the material placed before us. The first question to be considered is whether the claim of assessee Under Section 80-O can be denied merely on the ground that such claim was raised by the assessee in the revised return which was filed after the prescribe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relevant provisions under which assessee is entitled to exemption/deductions. Therefore, in our opinion, assessee is entitled to claim deduction if such claim is made by assessee before the completion of assessment proceedings. 9. The above view of ours is also fortified by the judgment of Supreme Court in the case of Anchor Pressings P. Ltd., 161 ITR 159 wherein it has been held that if on the basis of material placed on the record, the assessee is entitled to claim any deduction but forget to make his claim in the return or in the course of assessment proceedings then assessee is entitled to make such claim by moving application Under Section 154 for rectification since non-granting of deduction/exemption would amount to mistake ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, the assessee is entitled to claim the same by raising the additional ground of appeal before the appellate authorities. If the claim can be raised before the appellate authorities for the first time then, in our opinion, there is no question of rejecting such claim if made before the AO in the course of assessment proceedings. 11.The question before us can also be considered (sic)om another angle. The provisions of Section 139 are procedural provisions for making the assessment (R. Dalmia, 236 ITR 480. Therefore, such provisions cannot affect the rights and liabilities of the assessee unless specific provisions (sic) made to that effect. Reference can be made to the provisions of Section (sic) which disentitles the assessee to cl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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