TMI Blog2022 (8) TMI 618X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 115JB, assessee had adopted rate of depreciation as per Income-tax Act instead of Companies Act in profit and loss account. The Andhra Pradesh High Court in the case of Deccan Tools Industries (P.) Ltd. [ 2014 (11) TMI 49 - ANDHRA PRADESH HIGH COURT] held that where for purpose of section 115J, assessee claimed depreciation at rates provided under Income-tax Rules, action of Assessing Officer in redrawing profit and loss account and adopting rates prescribed under Companies Act, was totally unauthorized. Thus we are of the considered view that in the instant facts, PCIT erred in facts and law in holding that the assessment order was erroneous and prejudicial to the interests of the revenue so far as ground number 3 of the assessee's appeal is concerned. Excessive payment to related party or not - Payments for job work not verified by AO at fair market value under section 40A(2)(b) - In the case of CIT v. Indo Saudi Services (Travel) (P.) Ltd. [ 2008 (8) TMI 208 - BOMBAY HIGH COURT] the Bombay High Court held that where revenue was not in a position to point out how assessee evaded payment of tax by alleged payment of higher commission to its sister concern, sin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore, requires to be quashed. 4. The learned C.I.T. has erred in passing revision order on the ground that details of valuation of closing stock was not furnished before learned Assessing Officer. Revision on this is mere change of opinion, and therefore, illegal, and therefore, requires to be cancelled. 5. The learned C.I.T. has erred in passing revision order on the ground of non-furnishing of details of stock hypothecated to bank. Your appellant submits that in view of clear legal position, the revision order on this ground is illegal, and therefore, requires to be cancelled. 6. The learned C.I.T. has erred in passing revision order on the ground of six times increase in sale of scrap at Rs. 174,46,006/- as against Rs. 32,57,079/- of immediately preceding previous year. Revision on this ground is mere change of opinion, and therefore, illegal and therefore, requires to be cancelled. 7. The learned C.I.T. has erred in passing revision order on the ground that no break-up of SS sheet cost W.I.P. and SS FG (in quantity term) filed nor examined by learned Assessing Officer during the course of original assessment. Revision on this ground is mere change of opinion, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its under section 115JB of the Act. Accordingly, the assessee has been allowed excess depreciation of Rs. 2,75,00,917/- on the windmill, while computing the book profits for the relevant period. In the 263 proceedings, the assessee submitted that on the very said issue, the AO had raised query by letter dated 19-02-2012 at serial number 8 of the said query, which was replied by the assessee vide letter dated 12-12-2012. However, the PCIT rejected the assessee's arguments with the following observations: xxxxxxxxxxxxxxxxxxxxxxx On verification of records, it is gathered that the AO, vide his letter dated 19-02-2012 at sr. no. 8 has asked assessee to submit details of bills/invoice/receipt/Delivery Challan for installation of windmill along with date of put to use with supporting document, whereas the assessee had submitted only copy of invoice for the purchase of the windmill vide its reply by letter dated 12-12-2012. The assessee has not submitted the supporting document for installation of windmill along with date of put to use to the AO. The AO has not verified the claim of depreciation of assessee while calculating the book profit u/s. 115JB of the IT Act and acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le XIV of the Companies act, 1956. In appeal, the Supreme Court held that where assessee was consistently charging depreciation in its books of account at rates prescribed in Income-tax Rules and accounts of assessee had been prepared and certified as per provisions of 1956 Act, Assessing Officer would not have any jurisdiction under section 115J to rework net profits of assessee by substituting rates of depreciation prescribed in Schedule XIV to 1956 Act. We further note that the jurisdictional Gujarat High Court in the case of DCIT v. Vardhman Fabrics (P.) Ltd. [2002] 122 Taxman 375 (Gujarat) has also adjudicated on this issue in favour of the assessee. The brief facts of the case were that assessee calculated depreciation on plant and machinery at 33.33 per cent as permissible under the Income-tax Rules, 1962 as against 30 per cent depreciation required to be calculated under Schedule XIV of the Companies Act. The Commissioner, acting under section 263, held that rate of depreciation claimed was in excess of the rate under the Companies Act and that excess was to be disallowed. The Tribunal held that Circular of Company Law Board lays down minimum rate of depreciation for purpos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... purpose of section 115J, assessee claimed depreciation at rates provided under Income-tax Rules, action of Assessing Officer in redrawing profit and loss account and adopting rates prescribed under Companies Act, was totally unauthorized. 6.1. In view of the various decisions cited above, we are of the considered view that in the instant facts, PCIT erred in facts and law in holding that the assessment order was erroneous and prejudicial to the interests of the revenue so far as ground number 3 of the assessee's appeal is concerned. 7. In the result, ground number 3 of the assessee's appeal is allowed. Ground number 9: payments for job work not verified by AO at fair market value under section 40A(2)(b): 8. The brief facts in relation to this ground of appeal are that in the 263 proceedings, the PCIT observed that the assessee made certain payments to MC Metal Private Limited on account of job work payments of Rs. 48,49,883/-, on account sales of Rs. 1,86,14,467/- and job work receipt of Rs. 9,22,254/- in respect of which the AO did not carry out the necessary verification of market value as per the provisions of section 40A(2)(b) of the Income Tax Act. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contentions and perused the material on record. We note that vide letter dated 4 January 2013, the AO had called for details of business concerns specified in section 40A(2)(b) of the Act. The PCIT has also agreed in his order that the vide letter dated 12-12-2012, the assessee submitted details of parties along with amount of payment and the ledger accounts of the respective parties as per serial number 13 in the said reply. Accordingly, in our view, it is not a case that this issue was not examined by the AO in the assessment proceedings. Specific query in this regard was raised by the AO, to which the assessee replied. We note that the jurisdictional Gujarat High Court in the case of CIT v. Ashok J. Patel (2014) 43 Taxman.com 227 (Gujarat) held that for making the disallowance under section 40A(2)(b) of the Act, onus to prove unreasonableness is on the assessing officer. While passing the order, the High Court made the following observations: There is, however, one more reason for doing so. As evident from a plain reading of the assessment order, the Assessing Officer, had called upon the assessee to demonstrate that the payment made by the assessee to the specified persons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... et of facts, Ld. PCIT in the 263 proceedings has held that the assessment order is erroneous and prejudicial for the reason that the assessee has not been able to bring on record comparable cases in order be able to substantiate that the payment is not unreasonable or excessive as per provisions of section 40A(2) (b) of the Act. In our considered view, such onus cannot be cast upon the assessee to prove that payment made is not excessive/unreasonable by bringing on record instances of comparable cases. As held by various Courts/Tribunals, the onus is on the revenue to record reasons why payment by the assessee is excessive/unreasonable so as to invoke provisions of section 40A(2)(b) of the Act. For the foregoing reasons, in our view, PCIT has erred in facts and law in holding that the order is erroneous and prejudicial to the interests of the revenue, so far as ground number 9 of the assessee's appeal is concerned. 11. In the result, ground number 9 of the assessee's appeal is allowed. 12. Since the assessee has not pressed the other grounds of appeal, the matter is being restored to the file of AO to examine the other issues on which the order under section 263 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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