Tribunals
Summary and Review of Case Laws Decided by Income Tax Appellate Tribunals
Sunday, 27 September 2015 11:23

Section 263 - Depreciation allowed after considering assessee's explanation which may be debatable however action u/s 263 is unjustified - Ahmedabad tribunal

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Gist

1. Whole assessment order cannot be erroneous when the issue involved is only limited to two points.

2. When the A.O. has gone through the explanation submitted by the assessee and according formed the opinion which one of the possible views then the order is not erroneous and order u/s 263 is unjustified.

Facts

1. Assessee has filed its return of income on 9.9.2009 declaring total income of Rs.72,29,65,644/-

2. The ld.AO has passed the assessment order under section 143(3) on 30.3.2013

3. After going through the record, the ld.Commissioner has formed an opinion that action under section 263 deserves to be taken against the assessee

4. Accordingly, he issued a show cause notice on 16.3.2015 on account of higher rate of depreciation

5. The ld.Commissioner has passed the order under section 263 on 31.3.2015. He set aside the assessment order and directed the AO to make a fresh assessment order of the total income of the assessee for the Asstt.Year 2009-10

6. Being aggrieved by the order assessee moved to the ITAT

7. ITAT decided the matter in favour of the assessee

Adjudication

1. The whole assessment order cannot be cancelled, because it contained large number of issues. The ld.CIT sought to take action under section 263 qua two issues only, and to that extent the assessment would only be set aside.

2. The AO has invited the explanation of the assessee, gone through the details submitted by it, and thereafter, allowed the depreciation including additional depreciation as per law. His view may not get approval from the point of view of the ld.Commissioner, but, the opinion of the AO is also a possible view, and therefore, no action under section 263 can be justified. On due consideration of these facts and circumstances, we allow the appeal of the assessee, and quash the order passed by the ld.Commissioner under section 263 of the Act.

Cases referred to

1. BSES Yamuna Power Ltd. 358 ITR 47 (Del.)

2. Ushodaya Enterprises Ltd. 41 taxmann 304 (Hyd.)

3. Macwber Engineering System (I) (P.) Ltd. 33 taxmann 587 (Mum.)

4. Varinder Agro Chemicals Ltd. : 309 ITR 272 (P&H)
5. Rober Bosch India Ltd : 50 taxmann 275 (Kar.)
6. Karuru Vysya Bank Ltd. : 54 taxmann 324 (Mad.)
7. Lubrizol India Ltd : 37 taxmann 294 (Bom.)

8. Max India Ltd. : 295 ITR 282 (SC)
9. Amit Corporation : 21 taxmann 64 (Guj.)
10. Sunbeam Auto Ltd. : 332 ITR 167 (Del.)
11. Vikas Polymers : 341 ITR 537 (Del.)
12. Gabriel India Ltd. : 203 ITR 108 (Bom.)

13. CIT Vs. Diamines & Chemicals, (2014) 42 taxmann 193 (Guj)

14. Mrs. Khatiza S. Oomerbhoy Vs. ITO, Mumbai, 101 TTJ 1095

15. Gee Vee Enterprises Ltd vs. Addl. Commissioner of Income Tax (99 ITR 375)

16. Malabar Industries 243 ITR 83

Additional Info

Read 2807 times Last modified on Saturday, 13 February 2016 15:34
Amit

Amit is a Chartered Accountant and a part of Taxpundit's Support Team. He has experience in various industry sectors including manufacturing, power and utilities, financial services, alternative investments etc. He is a passionate blogger and keep writing articles on Income Tax for various publications.

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