TMI Blog2021 (7) TMI 1410X X X X Extracts X X X X X X X X Extracts X X X X ..... hat directions of this Tribunal to examine the allowability of expenses u/s. 40(a)(ia) of the Act for A.Y. 2007-08 would only result in impossibility of performance on the part of assessee in as much as no expenditure was incurred by the assessee in A.Y. 2007-08 thereof. The expenditure falling within the ambit of Section 40(a)(ia) had been incurred by the assessee in A.Y. 2005-06 on which depreciation is already allowed by the ld. AO in A.Y. 2005-06. Hence, the A.Y. 2007-08 is only consequential year of allowing depreciation on fixed assets and expenses falling under 40(a)(ia) of the Act. Miscellaneous Application of the assessee is allowed. - MA No. 100/Mum/2021 - - - Dated:- 14-7-2021 - Hon'ble Judges M. Balaganesh, Member (A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3(3) dated 30.08.2007; however, the Honourable Tribunal in para 24 of the impugned order rejected the said submissions on the ground that the said orders of the Tribunal deleted the addition on technical grounds and did not discuss the case on merits. The Applicants submit that even though in the earlier year the disallowance of depreciation is deleted on technical grounds, the fact is that the deduction for depreciation is allowed on the same fixed asset in that year by order under section 143(3) dated 30.08.2007 passed prior to the order under section 143(3) r.w.s. 153A of the Act and hence, the depreciation ought to be allowed for the year under reference; hence a mistake apparent from record. (c) Further, the Honourable Tribunal ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and thereafter capitalized in the fixed assets (b) The Applicants submit that during the course of hearing, the Authorised Representative of the Applicants argued the aforesaid two grounds of appeal separately. Please note that the ground of appeal no 5 is raised by the Revenue in respect of CIT(A) deleting the disallowance of provision of Rs. 25,88,10,856 for FCCB premium made during the year under reference, whereas ground of appeal no 6 is raised in respect of CIT(A) deleting the disallowance of depreciation of Rs. 15,86,610 on FCCB premium capitalised in earlier years. As such, the Applicants submit that the issues are separate and distinct; however, the Honourable Tribunal while disposing of the grounds in para 25 and 26 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act carried out in the premises of the assessee on 13/10/2010, an assessment was framed u/s. 143(3) r.w.s. 153A of the Act for A.Y. 2005-06 wherein the aforesaid depreciation had been sought to be disallowed by the ld. AO. This search assessment was the subject matter of second appeal to this Tribunal and this Tribunal in ITA No. 5371/Mum/2015 had quashed the search assessment on technical ground that the ld. AO did not possess any incriminating material to disturb the unabated assessment i.e. A.Y. 2005-06. By this process, the original assessment order framed u/s. 143(3) of the Act for A.Y. 2005-06 dated 30/08/2007 ultimately survives, wherein depreciation on fixed assets was duly allowed to the assessee. 3.1. The year before us is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties and perused the material available on record. We find that the issue is with regard to disallowances of depreciation on fixed assets, in respect of certain expenditure capitalized for non deduction of tax at source was considered in AY 2005-06 in u/s. 263 proceedings in ITA No. 3375/Mum/2010. We, further noted that although, the Tribunal has quashed 263 proceedings, but not discussed the issue on merits. Subsequently, in 153A assessments, the Ld. AO has made similar additions. But, the ITAT has deleted said additions in ITA No. 5371/Mum/2015, on technical ground without discussing the issues on merits. Therefore, it is necessary to examine the issue on merits, whether the claim of the assessee with regard to depreciation on fixed asset ..... X X X X Extracts X X X X X X X X Extracts X X X X
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