2015 (8) TMI 309

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.... i. Deleting of dis-allowance u/s.40(a)(ia) of the Income Tax Act, 1961 (herein after referred to as 'the Act') in respect of commission paid to overseas agents without deduction of tax; ii. Allowing of expenditure on overhauling of windmills as 'current repairs' u/s.37(1) of the Act; 2. The facts of the case as emanating from the records are: The assessee-company is engaged in the business of manufacturing of textile yarn. The assessee filed its return of income for the AY. 2010-11 on 27-09-2010 declaring loss of `13,48,48,975/- under normal computation and profit of Rs. 8,24,21,606/- u/s.115JB of the Act. The case of the assessee was selected for scrutiny and notice u/s. 143(2) of the Act was issued to the assessee on 05-09-2011....

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....rted as 327 ITR 456 (SC) and the decision of the Chennai bench of the Tribunal in the case of ACIT Vs. Farida Shoes (P) Ltd., reported as 34 Taxmann.com 28 (Chennai-Trib) and deleted the dis-allowance. On the second issue of dis-allowance of depreciation, the CIT(Appeals) accepted the submissions of the assessee to treat the one time expenditure incurred on overhauling of the wind mill generators as 'current repairs', allowable u/s.37(1) of the Act. Against the order of CIT(Appeals), the Revenue has come in appeal before the Tribunal. 3. Shri P.Radhakrishnan, appearing on behalf of the Revenue submitted that CIT(Appeals) has erred in deleting the dis-allowance made u/s.40(a)(ia) on payment of commissions made to foreign agents with....

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....unsel for the assessee vehemently supporting the findings of CIT(Appeals) submitted that the assessee had modified its claim during the course of assessment proceedings. The assessee realized its mistake of claiming depreciation on the amount spent on overhauling of generators whereas the amount should have been claimed as revenue expenditure. The assessee immediately rectified its mistake during the course of assessment proceedings. The assessee has not raised any fresh claim for which revised return of income was required to be filed. 5. Both sides heard. Records in the case perused. In appeal, the Revenue has raised two issues. The first issue relates to dis-allowance u/s.40(a)(ia) in respect of commission paid to foreign agents wi....

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.... Assessing Officer rejected depreciation claim of the assessee on the ground that no new asset had come into existence. During the course of assessment proceedings, the assessee modified its claim and treated the said amount towards the current repairs and claimed it as revenue expenditure. Since, no revised return was filed by the assessee to claim the amount as revenue expenditure, instead of depreciation claim, the Assessing Officer rejected the claim of the assessee. The Hon'ble Apex Court in the case of Goetze (India) Ltd., Vs. CIT reported as 284 ITR 323 (SC) has held that the Assessing Officer cannot entertain the claim of deduction otherwise then by filing a revised return. However, the powers of Income Tax Appellate Tribunal....