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TMI Blog2024 (3) TMI 1208X X X X Extracts X X X X X X X X Extracts X X X X ..... g substantial questions of law arising out of the order dated 25.09.2023 passed by the Income Tax Appellate Tribunal, Surat (for short 'the Tribunal') in ITA No. 377/SRT/2023 for A.Y. 2018-2019 : "(i) Whether the Ld. the Appellate Tribunal was right in allowing the appeal for the assessee ignoring the fact that the AO had not considered instruction No. 9/2007 dated 11.09.2007? (ii) Whether the Ld. Appellate Tribunal was right in allowing the appeal for the assessee ignoring the fact that the assessment was for complete scrutiny and not limited scrutiny? (iii) Whether the Ld. Appellate Tribunal was right in quashing the order u/s 263 of the Act in spite of the fact that the order was erroneous as well as prejudicial to the interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t paper book page - 121 wherein although the assessing officer has not raised the issue pertaining to depreciation, because he was instructed to conduct limited scrutiny, however, we note that tax audit report which contains depreciation schedule as per Income Tax Act, and audit report as per Companies Act, which contains depreciation as per Companies Act, were on the record of the assessing officer. Therefore, Assessing Officer having satisfied himself passed the assessment order and such order passed by the Assessing Officer should not be prejudicial to the interest of revenue. The assessee has not claimed the depreciation in tax audit report (for income tax purpose) as the new assets so purchased were not put to use. However, for Compani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (3) dated 11.02.2021 of the Act cannot be termed as erroneous since enquiry was, in fact, carried out by assessing officer on the issue on which the ld. PCIT has found fault with and has taken a plausible view. Let us take the guidance of judicial precedents laid down by the Hon'ble Apex Court in Malabar Industries Ltd. vs. CIT [2000] 243 ITR 83 (SC) wherein their Lordship have held that twin conditions needs to be satisfied before exercising revisional jurisdiction u/s 263 of the Act by the CIT. The twin conditions are that the order of the Assessing Officer must be erroneous and so far as prejudicial to the interest of the Revenue. In the following circumstances, the order of the AO can be held to be erroneous order, that is (i) if the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed on the facts and circumstances of the case, we quash the order passed by ld. PCIT, dated 31.02.2023." 4. On perusal of the finding of facts arrived at by the Tribunal it is clear that the Tribunal after considering the issue of claiming the depreciation by the respondent-assessee as per the Act has come to the conclusion that the Assessment Order is neither erroneous nor prejudicial to the interest of Revenue. The Tribunal has also observed that the CBDT Instruction No. 9 of 2007 dated 11.09.2007 relied upon by the PCIT would also not be applicable in the facts of the case as the same pertains to the issue of allowability of depreciation and brought forward losses/unabsorbed losses. However, in the case of the respondent-assessee ther ..... X X X X Extracts X X X X X X X X Extracts X X X X
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