TMI Blog2023 (2) TMI 919X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee wrongly offered the income from under the income from other sources u/s 56 of the Act. After going through the sec.56, as observe that the income earned by the assessee does not fall under the head of income from other sources . The sole purpose as per submission of the assessee is to running a school for educational purposes to students, therefore, if any income received by the assessee will not fall under the head income from other sources . The income of the assessee should be computed under the head profit and gains of business profession as per under Chapter IV D , therefore the income should be computed as per Chapter IV D of the I.T. Act. As per section 14 of the Act heads of income has specified the manner procedur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wed for statistical purposes. - ITA No.1114/Bang/2022 - - - Dated:- 21-2-2023 - Shri Laxmi Prasad Sahu, Accountant Member For the Appellant : Shri Sanketh S Nayak, C.A For the Respondent : Shri Ganesh R Ghale, Standing Counsel ORDER PER LAXMI PRASAD SAHU, ACCOUNTANT MEMBER: This is an appeal filed by the assessee against order passed by the Commissioner, NFC Delhi, DIN Order NO. ITBA/NFAC/S/250/2022-23/1046322070(1) order dated 14/10/2022 . 2. The sole issue involved in this appeal is not allowing depreciation on Fixed Assets as claimed by the assessee in its grounds of appeal. 3. The brief facts of the case are that the assessee is a trust engaged in solely proving educational services to students at M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on ble High Court. He noticed that disallowance u/s 143(1) does not come within the purview of sec. 154 of the Act for the reason that as per provisions of sec. 154 of the Act, the mistake apparent from record can only be rectified but he noted that in the impugned case allowing depreciation is not mistake apparent from record and this is debatable issue which needs elaborate enquiry as per the discussion in his order. 6. Aggrieved from the above order, the assessee filed appeal before the ITAT. 7. The ld.AR reiterated the submission made before the lower authorities and he also filed written synopsis relying on some case law which is as under:- 1) Poona Club Ltd., Vs. ACIT [2018] 90 taxmann.com 422 (Pune Trib.) 2) Sports Author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the assessee does not fall under the head of income from other sources . The sole purpose as per submission of the assessee is to running a school for educational purposes to students, therefore, if any income received by the assessee will not fall under the head income from other sources . The income of the assessee should be computed under the head profit and gains of business profession as per under Chapter IV D , therefore the income should be computed as per Chapter IV D of the I.T. Act. . 10. Chapter XIV described the procedure for assessment. The section 139 of the Act as specified the filing of return of income as per the Act. The income should be computed in the manner provided as per chapter IV, computation of total in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nate Bench had resolved an identical controversy by holding as under: 6.1 Of course, it is a case in point that the assessee did not file any appeal against the intimations passed us 143(1) of the Act and the Ld. Sr. DR is right to the extent that the assessee cannot be given relief for that reason. However, it is also a settled law that the assessee cannot be taxed on an amount on which tax is not legally imposable. Although, the assessee might have chosen a wrong channel for redressal of his grievance, all the same, it is incumbent upon the Tax authorities to burden the assessee only with correct amount of tax and not to unjustly benefit at the cost of tax payer. Therefore, in the interest of substantial justice, we deem it expedien ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tified by the authorities below. 13. The CIT(A) should have corrected the mistake which are done by the AO/CPC whereas the CIT(A) has decided only the issue that it is debatable issue and it cannot be rectified u/s 154 of the Act. In this case, the assessee himself wrongly declared its income under the head income from other sources. The income should be computed as per manner prescribed in the Act under the head D.- Profits and gains of business or profession. The depreciation is notional expenditure and it is statutory incentive to the assessee if the assessee has satisfied all the conditions for getting depreciation. Since the lower authorities have not examined the preliminary requirement for getting depreciation allowances as per ..... X X X X Extracts X X X X X X X X Extracts X X X X
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