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TMI Blog2022 (11) TMI 185X X X X Extracts X X X X X X X X Extracts X X X X ..... ting of deduction in respect of depreciation u/s.32 of the Income-tax Act, 1961 [the Act] in the intimation order passed u/s. 143(1) the Act. 3. The assessee is a partnership firm. In the return of income filed for the AY under consideration, the assessee inadvertently not fed the details of depreciation in "Schedule DEP" and "Part BP - Computation of income from business or profession" for an amount of Rs.2,72,51,521. However, the assessee has fed the depreciation figure correctly in "Part A- P&L". In the intimation received u/s. 143(1) dated 28.4.2017, depreciation was not allowed as a deduction though the same was added to the income from business or profession. 4. The assessee filed an appeal against the intimation u/s. 143(1) whereby ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the date of filing the revised income tax return had expired thereto. The appellant also placed reliance on the case law in the case of Rakesh Singh vs ACIT, and the circular no. 14(XI-35) of 1995 dated April 11, 1955. However, the said case law is on its own footings distinguishable on facts. Further, the Circular relied by the appellant is also not applicable in as much as the appellant failed to file the revised income tax return within the time period as stipulated u/s 139(5) of the Act. Therefore, in such circumstances, he declined to interfere with the findings of the AO." 6. Before us, the ld. AR submitted that the omission to feed the depreciation figure while filing the return of income is an inadvertent clerical error on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation and the CIT(A) has rightly rejected the appeal of the assessee. 8. We heard the rival submissions and perused the material on record. We notice that the depreciation amounting to Rs. 2,72,51,521 is debited to Profit and Loss A/c and the same is also duly filled in the ITR under "Part A - P&L". The relevant extract of the ITR-5 is as under:- 9. We also notice that the assessee has not fed in the figures for claiming depreciation of Rs. 2,72,51,521 under column 12 of 'Part BP - Computation of income from business or profession" and had not fed in the depreciation amount in "Schedule DEP" of the Income tax return. The relevant extracts from ITR-5 are as under:- 10. In the intimation u/s.143(1) it is noticed that based on depreciat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xplanation 5 to section 32(1) of the Act (Inserted by Finance Act, 2001 w.e.f. 1/4/2002). 10.1. Circular No.14 (XI-35) of 1955, dated April 11, 1955 provides that the officers of the department must not take advantage of the ignorance of an assessee as to his rights and that although the responsibility for claiming refunds and reliefs rests with the assessee on whom it is imposed by law, yet (a) the officers should draw the attention of the assessees to any refund or relief to which they are entitled to but which they have omitted to claim for some reason or other, and (b) freely advise them when approached by them as to their rights and liabilities and as to the procedure to be adopted for claiming refunds and reliefs. The relevant port ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n additional claim could be made before the appellate authority and the appellate authority is duty bound to consider the same. There are number of judgments which clearly establish that the assessee is entitled to raise additional grounds, not merely in terms of legal submissions but in respect of new claim not made in the return filed." 13. The ratio laid down by the Hon'ble Tribunal in the above case is that the assessee should be allowed the deduction towards depreciation even if not claimed by the assessee as per explanation 5 to section 32 and that the AO should bring any omission on the part of the assessee to claim any relief, to the notice of the assessee. The Hon'ble Tribunal even went to the extent to hold that the assessee ent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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