TMI Blog2009 (9) TMI 1055X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. 2. On the facts and circumstances of the case and in law, the CIT(A) has erred in deleting the disallowance made by the AO amounting to ₹ 19,61,690/-, on account of claim of depreciation. 3. On the facts and in the circumstances of the case and in law, the CIT(A) ought to have upheld the order of the A.O. 4. It is, therefore, prayed that the order of the CIT(A) be set aside and that of the A. O. be restored to the above extent. 3. However, the figure of depreciation mentioned in ground No.2 varies in different assessment years, which are as under:- Sl. No(s) Assessment Year(s) Amount (Rs.) of depreciation involved 1. 2001-02 19,61,690 2. 2002-03 71,70,982 3. 2003-04 11,84,363 4. 2004-05 12,43,485 5. 2005-06 10,34,573 6. 2006-07 7,14,037 7. 2007-0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being heard to the assessee, repeated the same addition on the same ground in the order passed u/s.153A of the I.T. Act, 1961. The assessment order in original assessment was passed on 25/02/2004. The matter relating to adopting notional WDV as on 31/03/2000 and reducing therefrom the depreciation, i.e. not adopting actual WDV without considering depreciation not claimed, traveled to the ITAT Ahmedabad Bench D which vide its order dated 16/01/2009 (in ITA No.3385/Ahd/2004) passed for Assessment Year 2001-02 held that for working out WDV, only the actual depreciation allowed should be reduced. If the depreciation is not claimed, then it cannot be reduced to work out the WDV and then allow the depreciation thereon. In this regard, we refer to paragraph Nos.10 11 of the said order of the Tribunal as under:- 10. We have heard the rival submissions and perused the orders of the lower authorities and the material available on record. In the instant case, it is not in dispute that the assessee neither has claimed nor was allowed depreciation in respect of fixed assets used in its industrial unit. During the year under consideration, for allowing depreciation the assessing office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctually allowed to him under this Act or under the corresponding provisions of the Indian Income-tax Act, 1922 (11 of 1922) in respect of any previous year relevant to the assessment year commencing before the 1st day of April, 1988; and (b) by the amount of depreciation that would have been allowable to the assessee for any assessment year commencing on or after the 1st day of April, 1988 as if the asset was the only asset in the relevant block of assets, so, however, that the amount of such decrease does not exceed the written down value;] (ii) in respect of any previous year relevant to the assessment year commencing on or after the 1st day of April, 1989, the written down value of that block of assets in the immediately preceding previous year as reduced by the depreciation actually allowed in respect of that block of assets in relation to the said preceding previous year and as further adjusted by the increase or the reduction referred to in item (i).] Explanation 1.- When in a case of succession in business or profession, an assessment is made on the successor under subsection (2) of section 170 the written down value of any asset or any block of asset ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exchange in India to a company under a scheme for corporatisation approved by the Securities and Exchange Board of India established under section 3 of the Securities and Exchange Board of India Act, 1992 (15 of 1992), the written down value of the block of assets in the case of such company shall be the written down value of the transferred assets immediately before such transfer.] 11. A perusal of the above provisions shows that the WDV in respect of which depreciation is to be calculated is the actual cost of the asset to the assessee as reduced by the amount of the depreciation actually allowed to the assessee. Now in the instant case, it is not in dispute that in the earlier years, no depreciation was allowed to the assessee in respect of the fixed assets in question. The Revenue could not bring on record any material before us to show that though the depreciation was not claimed by the assessee but in fact such depreciation was allowed by the Department as deduction to the assessee in the assessment made in respect of the income of the assessee. In our considered opinion, it is not open to the Revenue to deduct any amount from the cost of the asset to determine the WDV ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ITAT in these cases. The Hon'ble ITAT further observed that only the pending assessment as .on the date of search shall abate and not the completed assessments. 4.2 The appellant further submitted that all the additions were made in the original assessment proceedings and the same were deleted by the CIT(A) and the ITAT hence, the .same cannot be added again and cannot be the subject matter of the assessment. U/S.153A of the I.T. Act. The appellant submitted that all the additions were deleted by the ITAT and the facts being same, on merit also, the additions should be deleted as all the issues are covered in its favour by the appellate authorities i.e. the CIT(A) the ITAT. 5. I have considered the facts and the submissions. I agree with the appellant's view. On merits of the additions, it is observed that the additions have been deleted in the original assessment proceedings and all the issues are covered in the appellant's favour. As the facts are same and no contrary evidences have been found during the search, all the .additions are liable to be deleted. However, considering the additional grounds taken by the appellant, it is observed that all the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wever, sub-section(1) empowers the Assessing Officer to initiate assessment proceedings u/s.153A of the I.T. Act, 1961 in respect of those assessment years also which are not pending before the Assessing Officer on the date of initiation of the search. This means that assessments which are completed have attained finality, as they do not abate. What is therefore provided u/s.153A of the I.T. Act, 1961, is a proceedings of re-assessment as a consequence of search conducted u/s.132 of the I.T. Act, 1961 against the assessee. The powers to initiate re-assessment proceedings us/.153A of the I.T. Act, 1961 are in addition to powers of the Assessing Officer to initiate the proceedings us/.148(1) of the I.T. Act, 1961. 11. The purpose of not abating the concluded assessment is that where a particular issue has attained finality in the original assessment proceedings, then that issue cannot be agitated in the proceedings us/.153A of the I.T. Act, 1961 unless there is fresh material available with the Assessing Officer either as a result of search or investigation carried out thereafter. Since assessment is reopened u/s.153A of the I.T. Act, 1961, the Assessing Officer has all the powers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I.T. Act, 1961. In other words, the original assessment proceedings which were subject matter of appellate proceedings will survive and the issues contained therein can be agitated only when some fresh material or evidences found and discovered by the Assessing Officer in the search or in the investigation. 13. In the present case, the Assessing Officer has only repeated the addition made in the original assessment proceedings indicating there that he does not have any fresh material. Since no fresh material was pointed out to us, we are unable to take a different view than taken by the Tribunal in the case of Meghmani Organics Ltd.(supra). As a result, we hold that there is no reason to disturb the findings of the Learned CIT(Appeals). The same is confirmed. 14. In the result, the appeal of the Revenue for Assessment Year 2001-02 is dismissed. 15. The issues involved in other appeals filed by the Revenue are same except difference in the figure of depreciation. For the same reasoning given above, we uphold the orders of the Learned CIT(Appeals) and dismiss the appeals of the Revenue. 16. In the result, all the seven appeals of the Revenue are dismissed. Order sign ..... X X X X Extracts X X X X X X X X Extracts X X X X
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