TMI Blog2018 (7) TMI 1554X X X X Extracts X X X X X X X X Extracts X X X X ..... restrict the disallowance to 5% of the dividend income. - Decided partly in favour of revenue Deduction u/s 80JJA - assessee not only failed to make such claim of deduction in the return of income but also failed to substantiate the same with documentary evidence in assessment proceedings - Held that:- We find the assessee had not filed the requisite details before the Assessing Officer during the course of assessment proceedings which has been clearly brought on record by the Assessing Officer in the body of the assessment order. We find although the ld. CIT(A) has examined certain details filed before him, however, he has neither called the Assessing Officer during the hearing of the appeal nor called for a remand report from the Assessing Officer. Thus, in effect the Assessing Officer was not given any opportunity of being heard before the appeal was decided in favour of the assessee. Under these circumstances, we find merit in the argument of the ld. DR that the matter should be restored to the file of the Assessing Officer with a direction to examine the details Not allowing the claim of the appellant for the higher depreciation on energy saving devices containing voltag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions given by the assessee and reclassifying the UPS and computer peripherals as plant and machinery he allowed the depreciation at the rate of 15%. 4. In appeal, the ld. CIT(A) following the decision of the Hon ble Delhi High Court in the case of CIT vs. BSES Yamuna Power Ltd. reported in (2010) TIOL 636 allowed the depreciation at the rate of 60% by holding that the UPS and computer peripherals etc. are entitled for depreciation at the rate of 60%. 5. Aggrieved with such order of the ld. CIT(A), the Revenue is in appeal before the Tribunal. 6. We have considered the rival arguments made by both the sides and perused the material available on record. We find identical issue had come up before the Tribunal in assessee s own case in the immediately preceding assessment year. We find the Tribunal vide ITA No.3660/Del/2013 order dated 09.01.2014 following the decision of the Hon ble Delhi High Court in the case of BSES Yamuna Power Ltd. (supra) and in the case of CIT vs. Orient Ceramics Industries Ltd. (2011) TOIL 6/056 DTR 0397 has allowed depreciation at higher rate on computer accessories and UPS and the appeal filed by the Revenue has been dismissed. Since the ld. CIT(A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vidend income. He accordingly deleted the entire addition. 10. Aggrieved with such order of the ld. CIT(A), the Revenue is in appeal before the Tribunal. 11. After hearing both the sides, we find the Assessing Officer disallowed an amount of ₹ 7,61,523/- by invoking the provisions of section 14A on account of administrative and supervisory expenses incurred by the assessee for earning the exempt dividend income of ₹ 7,61,523/-. We find the ld. CIT(A) deleted the disallowance on the ground that no efforts either administrative or supervisory need to be undertaken by the assessee for the investment in the units of the LIC Mutual Funds, the dividend of which is accumulated on daily basis and the same is reinvested. We find in the immediately preceding assessment year, under similar facts the ld. CIT(A) had restricted the disallowance to 5% of the derived income. On a pointed query by the Bench as to how it cannot be said that nobody has applied his mind for purchase of the units of the LIC Mutual Funds after selling of 2,09,072 equity shares to M/s 3i-ITL Investment Limited, the ld. counsel for the assessee fairly admitted that somebody has definitely applied his min ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellate proceedings without writing the reasons for its admission and without granting an opportunity to the assessing officer. 13. Facts of the case, in brief, are that during the course of assessment proceedings on 14.12.2009, the assessee submitted a statement of revised taxable income before the Assessing Officer wherein it claimed deduction u/s 80JJAA of ₹ 1,07,33,164/- and prior period expenditure of ₹ 51,21,024/-. However, the Assessing Officer was not satisfied with the above claim made by the assessee. He referred to the provisions of section 139(5) according to which the assessee can furnish a revised return at any time before the expiry of one year from the end of the relevant assessment year or before the completion of the assessment, whichever is earlier if he discovers any omission or any wrong statement therein having furnished a revised return under sub-section (1) of section 139 or in pursuance of a notice issued under sub-section (1) of section 142. However, in the instant case the due date for filing the revised return has already expired. Relying on the decision of the Hon ble Supreme Court in the case of Goetze (India) Ltd. reported in 284 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7; 51,21,024/-, I was informed that these expenses were not claimed in the current year as till finalization of return, their details were not available. These were later claimed in subsequent year but added back in that year being 'prior period expenses' for that year. However, in terms of accounting norms, these pertained to the current year. I observe that out of the same, an amount of ₹ 24,78,391/- was not allowable, as no TDS was deducted thereon and hence the claim for same was already withdrawn by the appellant u/s 40(a)(ia). Regarding the balance amount of ₹ 26,42,633/-, the appellant was asked to furnish the details in respect of each item embedded in it and to justify as to why liability in respect of the same may be held to have crystallized during the current year. On examination of appellant's contention, I find that the above expenses were booked in the next financial year as part of an amount of ₹ 75,45,049/- under the head 'prior period expenses', which were added back to the taxable income in that year. A copy of the statement of income for AY 2008-09 was furnished before me in this regard, which shows that the contention of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m before him although the same was not claimed before the Assessing Officer by filing the revised return. Such act of the ld. CIT(A) admitting new claim, in our opinion, is justified in view of the various decisions relied on by him. 18. Now coming to the merit of the case, we find the assessee had not filed the requisite details before the Assessing Officer during the course of assessment proceedings which has been clearly brought on record by the Assessing Officer in the body of the assessment order. We find although the ld. CIT(A) has examined certain details filed before him, however, he has neither called the Assessing Officer during the hearing of the appeal nor called for a remand report from the Assessing Officer. Thus, in effect the Assessing Officer was not given any opportunity of being heard before the appeal was decided in favour of the assessee. Under these circumstances, we find merit in the argument of the ld. DR that the matter should be restored to the file of the Assessing Officer with a direction to examine the details filed before the ld. CIT(A) and if found correct then to allow the deduction as per fact and law. Considering the totality of the facts of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sure continuous supply of electricity and minimization of voltage fluctuation. The main output achieved through this is uninterrupted supply of electricity that requires maintaining optimum voltage for allowing the machinery to function at the optimum level throughout. Thus, the underlying objective is not to save energy but to ensure regular supply of electricity (energy). In view of the same, the claim of the appellant for allowing depreciation on the voltage stabilizer and on the UPS @ 80% is not acceptable. Accordingly, this ground of appeal is decided against the appellant. 23. Aggrieved with such order of the ld. CIT(A), the assessee filed Cross Objection, against the appeal filed by the Revenue, before the Tribunal. 24. We have considered the rival arguments made by both the sides and perused the material available on record. We find the assessee claimed deduction at a higher rate on voltage stabilizer and UPS treating them as energy saving devices. We find the ld. CIT(A) rejected the claim of the assessee on the ground that the main output achieved through the voltage stabilizer and UPS is uninterrupted supply of electricity that requires maintaining optimum voltag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in allowing the claim of loss on foreign exchange fluctuation amounting to ₹ 37,09,017/- when the assessee not only failed to make such claim of deduction in the return of income but also failed to substantiate the same with documentary evidence in assessment proceedings. 6 On the facts and in the circumstances of the case and in law, the Ld. CIT (Appeal) has erred in allowing the claim of loss on foreign exchange fluctuation amounting to ₹ 37,09,017/- on the basis of additional evidence admitted during appellate proceedings without writing the reasons for its admission and without granting an opportunity to the assessing officer. 28. After hearing both the sides, we find the above grounds are identical to grounds of appeal in ITA No.5756/Del/2013. We have already decided the issue and the issue has been restored to the file of the Assessing Officer with a direction to verify the details and allow the claim as per fact law. Since the assessee has made the claim through the revised computation during the impugned assessment year and not by filing the revised return, therefore, following similar reasoning, the above issues are restored to the file of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X
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