TMI Blog2022 (1) TMI 825X X X X Extracts X X X X X X X X Extracts X X X X ..... Also all the details of the assets viz a viz depreciation were duly furnished in the income tax return. The major part of the depreciation claimed by the assessee in the year under consideration was pertaining to the opening written down value which cannot be disturbed in the year under consideration. CIT (A) in the immediate preceding A.Y. and immediate subsequent A.Y i.e. A.Y. 2016-17 and A.Y. 2018-19 has also allowed the depreciation claimed by the assessee with respect to the assets which were shown for the assessment year under consideration. Decided in favour of assessee. - ITA No. 246/AHD/2021 - - - Dated:- 15-12-2021 - Shri Rajpal Yadav, Vice President And Shri Waseem Ahmed, Accountant Member For the Assessee : Ms Jyo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were ignored which were available on record and the amount of depreciation was for ₹ 40,77,012/- was disallowed. 3.3 The assessee, besides the above further contended that the adjustments in the intimation under section 143(1) of the Act can be made with respect to the arithmetical errors. Thus the depreciation claimed by the assessee for the year under consideration cannot be disturbed in the intimation under section 143(1) of the Act in view of the judgment of Hon ble Gujarat High Court in the case of CIT vs. Mahesh kumar Rathod reported in 296 ITR 146. 3.4 The learned CIT (A) set aside the issue to the file of the AO for verification by observing as under: 2.4. There is very limited scope u/s.143(1) to undertake adjustme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reduce, enhance or annual the assessment, and apart from these four ways in which CIT(A) can decide the appeal, CIT(A) has no other way to decide any appeal filed before him and in any case, there are no provisions in the Income-Tax Act,1961 in relation to the power of Ld. CIT(A) for directing the AO to verify the issues for statistical purpose at the time of disposal of the appeal, though the Ld. CIT(A) may direct the AO to make further inquiry as he thinks fit, and report the result of the same to him before disposing of an appeal as per provisions of section 250(4) of the Income-tax Act, 1961. 7.6. Consequently, this appeal is also decided on merits. 7.7. On merits, the disallowances made u/s 143(1) amounting to ₹ 40,77, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd machineries, building and the computers amounting to ₹ 46,13,795/- on which depreciation at the different rate was claimed. But the amount of depreciation on the additions of these fixed assets was roughly calculated at ₹5 Lacs only. In other words, the entire amount of depreciation claimed by the assessee for the year under consideration for ₹ 51,47,681/- was pertaining to the opening WDV except the minor amount of ₹5 Lacs which was claimed on the additions of the fixed assets. As such, the amount of depreciation on the opening WDV cannot be disturbed in the year under consideration and that too in the intimation under section 143(1) of the Act. The learned AR in support of his contention drew attention on page 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing: i. Disallowance of loss claimed in cases where returns have been filed beyond due date specified under sub-section (1) of section 139, ii. Disallowance indicated by the auditors in the audit report but fails to find a mention in the return of income, iii. Disallowance of deductions under section 10AA, 80IA, 80IAB, 80IB etc. of the Act. iv. If return is filed beyond the due date specified under sub-section (1) of section 139 of the Income Tax Act, 1961 apart from addition to the income returned for want of those particulars of income which though find a mention in Form No. 26AS/ Form No.16A or Form No.16 but have not been included subject to the inherent riders/limitations contained therein. 8.1 From the above, there rema ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made in the intimation processed under section 143(1) of the Act which is not a kind of adjustment as discussed above. The issue of depreciation being debatable cannot be subject matter of disallowance in the intimation under section 143(1) of the Act. In holding so we draw support and guidance from the judgment of Hon ble Jurisdictional High Court in case of CIT vs. Mahesh kumar Rathod (supra) where the Hon ble bench held as under: 4. When the issue relating to deduction or disallowance of deductions is debatable, the Assessing Officer cannot make any adjustment in an order under section 143(1)(a). We, therefore, see no infirmity in the order of the Tribunal. Accordingly, we answer the question referred in favour of the assessee and a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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