TMI Blog2017 (10) TMI 996X X X X Extracts X X X X X X X X Extracts X X X X ..... thorities as reproduced above. We find that the assessee had also duly explained the complete contents of the seized documents relied upon by the ld CIT in his order. In our considered opinion, those materials are not incriminating at all and are forming part of regular books of accounts of the assessee. These explanations have been completely ignored by the ld CIT while directing the ld AO to frame the assessment afresh. We hold that when an addition could not be made as per law in section 153A proceedings, then the said order cannot be construed as erroneous warranting revisionary jurisdiction u/s 263 of the Act by the ld CIT. Thus we find that the order of the ld CIT u/s 263 of the Act deserves to be quashed. - Decided in favour of assessee. - I.T.A No. 947/Kol/2017 - - - Dated:- 17-10-2017 - Shri N.V.Vasudevan, JM And Shri M.Balaganesh, AM For The Appellant : Shri A.K.Tulsyan, AR For The Respondent : Shri Goulean Hangshing, CIT DR ORDER Per M . Balaganesh, AM 1. This appeal by the Assessee arises out of the order of the Learned Principal Commissioner of Income Tax, Central-1, Kolkata [ in short the ld CIT] in M. No. Pr.CIT, Central-1/Kol/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 143(3) of the Act on 27.3.2015 determining the total income at ₹ 8,10,41,760/-. The ld AO denied the benefit of deduction u/s 80IB of the Act to the tune of ₹ 3,09,30,242/- and disallowed the same in the assessment framed u/s 153A of the Act on 27.3.2015 on the ground that the assessee is not engaged in the manufacturing activity. The assessee preferred an appeal against this order before the Learned Commissioner of Income Tax (Appeals) [ in short the ld CITA] who deleted the disallowance u/s 80IB of the Act vide his order dated 11.2.2016. On further appeal by the revenue to this tribunal, the same was dismissed vide order dated 30.11.2016 on the ground that there was no incriminating material found in the course of search and hence the assessment already framed u/s 143(3) of the Act could not be disturbed. On merits of the disallowance, the tribunal also held that the activity carried on by the assessee amounts to manufacture and hence is eligible for deduction u/s 80IB of the Act. In effect, the claim of deduction u/s 80IB of the Act was directed to be allowed for the Asst Year 2010-11 and was also further held that the concluded assessments cannot be disturbed wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shalimar Hatcheries Limited (Natungrame) . Similarly assessee maintains different sundry debtors ledger such as Shalimar Hatcheries Limited ; Shalimar Hatcheries Limited (Panchal) ; Shalimar Hatcheries Limited (Rajafarmbi) . It was stated that total purhcases made by the assessee from the said company was ₹ 9,80,00,700/- and total sales made to them was ₹ 2,57,00,096/-. From the sundry creditors ledger, it could be found that the total value of credit transactions was ₹ 11,30,68,501/- which includes, purchase, payments and transfer entry through journal. The credit transactions includes purchase bills totaling to ₹ 9,80,00,700/- and balance amount of ₹ 1,50,67,801/- was towards closing balance of ₹ 1,32,54,079/- transferred from other ledger accounts maintained in the name of Shalimar Hatcheries Limited nad payment of ₹ 18,13,722/- received from the said party against sale. Accordingly it was pleaded that the total credit transactions of ₹ 11,30,68,501/- was misinterpreted as advance although the same was purchase, payment received against sale and balance of different ledgers and hence the assessee had not received any advance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o put to use before 01 . 10 . 2009, would be eligible for depreciation at the 50 % provided the same asset was used for the purpose of business or profession . 6 . 3 Now, coming to facts of the case, the assessee purchased various motor lorries during the period of 01 . 01 . 2009 to 30 . 09 . 2009 and also put them to use for its business purpose . Please find enclosed herewith the details of addition to motor car along with copy of the registration certificate etc . The assessee used those motor lorries for carrying its products from one place to another . Thus, it is beyond any question that the lorries were used for the purpose of business of the assessee . Thus, the assessee has fulfilled the criteria for claiming the depreciation at a higher rate than the normal prescribed rate of 15 %. But instead of claiming the depreciation at 50 % , the accountant of the assessee not being professionally equipped and not very well accustomed with the taxation laws, mistakenly claimed the depreciation @ 30 %. Therefore, the assessee has inadvertently claimed a lower rate of contended by your honours of claiming a higher rate of depreciation . Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its contents page wise in detail before the ld AO. In effect, it was stated that the assessee had duly explained the following seized documents before the ld AO vide letter dated 20.2.2015 :- 1 . Page No . 1 to 24 of SPG 1 2 . Page No . 25 to 37 of SPG 1 3 . Page No . 1 to 47 of SPG 2 4 . Page No . 48 to 52 of SPG 2 5 . Page No . 1 to 10 of SPG 3 6 . Page No . 11 to 20 of SPG 3 7 . Page No . 1 to 7 of SPG 4 8 . Page No . 8 to 9 of SPG 4 9 . Page No . 10 to 119 of SPG 4 10 . Page No . 1 to 53 of SPG 5 11 . Page No . 1 to 71 of SPG 6 12 . Page No . 1 to 63 of SPG 7 13 . Page No . 1 to 48 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 44 . Page No . 10 to 14 of SPG 13 45 . Page No . 15 to 18 of SPG 13 46 . Page No . 21 to 24 of SPG 13 47 . Page No . 25 to 30 of SPG 13 48 . Page No . 31 of SPG 13 49 . Page No . 32 to 39 of SPG 13 50 . Page No . 01 to 02 of SHL / 02 51 . Page No . 03 - 07of SHL / 02 52 . Page No . 08 of SHL / 02 53 . Page No . 09 - 21 of SHL / 2 54 . Page No . 22 of SHL / 2 55 . SHL / 3 4 56 . Page No . 1 of SHL / 5 57 . Page No . 2 of SHL / 5 58 . Page No . 03 - 08 of SHL / 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion can be made u / s 143 ( 3 )/ 153A proceeding on the completed assessment . As such, jurisdiction u / s 263 of the Act cannot be exercised on the same . The order passed u / s 263 of the I . T . Act needs to be quashed . 2 . That without prejudice to our above ground, the AO has conducted proper enquiry . The order of the AO is not erroneous as well as prejudicial to the interest of the revenue on the issue of deemed dividend and rate of depreciation on lorries . As such, exercising of the power u / s 263 of the I . T . Act is bad in law and needs to be deleted . 3 . That no advance of Rs . 11,30,68,501 /- has been received by the assessee . The fact is that the assessee purchased goods of Rs . 9,80,00,700 /- and total sales made to the said company is Rs . 2,57,00,096 /-. The figure of Rs . 11,30,68,501 /- has been taken from sundry creditors ledger showing total of credit transaction which includes purchase, payments and transfer entry through journal . As such, the addition made by the Ld . PCIT is on misinterpretation of facts and hence exercising the jurisdiction u / s 263 is factually wr ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
