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2019 (5) TMI 545

HELD THAT:- As decided in assessee's own case [2018 (4) TMI 1698 - ITAT MUMBAI] we do not find any valid reason for the Assessing Officer to make addition towards unreconciled income as the addition was solely based on AIR information and without making proper enquiries, without submitting the information as requested by the assessee. In the circumstances, we direct the Assessing Officer to delete the addition. Non- grant of depreciation on computer peripherals at the rate of 60% - HELD THAT:- We find that the items in Serial Numbe₹ 1,2,3,4,6 & 8 are certainly integral part of computer thereby eligible for depreciation at 60%. The other two items in Serial Numbers 5 & 7 would be eligible for depreciation at 15%. Our finding is in consonance with the decision in the case of DCIT vs Datacraft India Ltd r [2010 (7) TMI 642 - ITAT, MUMBAI] and CIT vs BSES Yamuna Powers Ltd [2010 (8) TMI 58 - DELHI HIGH COURT] Accordingly, we direct the AO to recomputed the depreciation as per the aforesaid directions given by us specifically mentioning the serial numbers. Accordingly, the Ground No. 2 raised by the assessee is partly allowed. Disallowance of bad debts - disal .....

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ated 17.02.2014 by the ld. Income Tax Officer - 1(2), Thane (hereinafter referred to as ld. AO). 2. The first issue to be decided in this appeal is as to whether the ld CITA was justified in confirming the addition made in the sum of ₹ 11,90,941/- towards un-reconciled AIR entries in the facts and circumstances of the case. 2.1. The brief facts of this issue are that during the course of assessment proceedings, the ld AO had observed that AIR information was received from ITD database and the assessee was given the same to reconcile it with its books of accounts. The assessee submitted that total revenue from 141 parties as per AIR report was ₹ 8,33,91,572/- whereas the amount which could be reconciled was ₹ 8,12,91,668/- only thereby leading to a difference of ₹ 20,99,904/-. The assessee also submitted that the data from ITD database may be incorrect or the parties may have erroneously put wrong PAN and accordingly adding the difference in the hands of the assessee would not be justified. The ld AO however held that the assessee failed to offer any explanation for the difference sum of ₹ 20,99,904/- with supporting evidence and brought to tax as unexp .....

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ment that the information / details submitted by the assessee in respect of unreconciled entries are not genuine or unbelievable. Therefore, when the learned Commissioner (Appeals) has directed the Assessing Officer to verify the reconciliation of entries by examining the details submitted by the assessee, there is no reason why the Department should be aggrieved. Prima-facie, as could be seen, the learned Commissioner (Appeals) has directed the Assessing Officer to give effect only to the entries reconciled by the assessee. Moreover, on a perusal of the relevant case laws cited by the learned counsel, we find that the consistent view of the Tribunal in these decisions are, only on the basis of AIR information no addition can be made when there is no other materials before the Assessing Officer to demonstrate that assessee has received income more than what is declared by him. In the present case also, a perusal of the assessment order reveals that apart from the AIR information, there is no other material / evidence available before the Assessing Officer to establish that assessee has received more income than what is shown in the Profit & Loss account. In the aforesaid view o .....

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ingly sustained the disallowance of ₹ 6,75,819/-. Aggrieved, the assessee is in appeal before us. 3.3. We have heard the rival submissions. From the table above, we find that the items in Serial Numbe₹ 1,2,3,4,6 & 8 are certainly integral part of computer thereby eligible for depreciation at 60%. The other two items in Serial Numbers 5 & 7 would be eligible for depreciation at 15%. Our finding is in consonance with the decision of Special Bench of Mumbai Tribunal in the case of DCIT vs Datacraft India Ltd reported in 40 SOT 295 dated 9.7.2010 and the decision of Hon ble Delhi High Court in the case of CIT vs BSES Yamuna Powers Ltd reported in 358 ITR 47 (Del). The relevant findings thereon are not reproduced herein for the sake of brevity. Accordingly, we direct the ld AO to recomputed the depreciation as per the aforesaid directions given by us specifically mentioning the serial numbers. Accordingly, the Ground No. 2 raised by the assessee is partly allowed. 4. The next issue to be decided in this appeal is as to whether the ld CITA was justified in confirming the disallowance of bad debts of ₹ 13,91,338/- in the facts and circumstances of the case. 4.1. .....

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es of the case. 5.1. We have heard the rival submissions. We find that the ld AO in the remand report had stated that assessee had not claimed any deduction u/s 35AD of the Act in the return of income and that the assessee had made this claim for the first time only during the course of assessment proceedings and filed revised computation. The ld AO also observed that the assessee in support of this claim had also submitted the Chartered Accountant s certificate in Form 10CCB during the course of assessment. We find that the ld CITA had placed reliance on the decision of Hon ble Supreme Court in the case of Goetze (India) Ltd vs CIT reported in 284 ITR 323 (SC) for denying the claim of deduction u/s 35AD of the Act to the assessee. We find that the Hon ble Supreme Court had made it clear in its order that the claim made by the assessee otherwise than by way of a valid return is not applicable to the appellate authorities. Hence we hold that the ld CITA ought to have considered the claim of deduction u/s 35AD of the Act in the instant case. Reliance in this regard is also placed on the decision of Hon ble Bombay High Court in the case of CIT vs Pruthvi Brokers & Shareholders rep .....

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