TaxTMI 
TaxTMI 
2012 (9) TMI 989
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....e sides that the issue involved and the grounds raised by the assessee are identical for all the six assessment years except difference in amount and hence, the facts and arguments for one year can be considered and the decision in this year can be followed in the remaining five assessment years. Hence, we proceed by considering grounds of appeal, facts and arguments for the assessment year 2001-02. The grounds raised by the assessee in this year in I.T.A.No. 227/Ahd/2010 are as under: "1 . Ld. CIT (A) erred on facts and in law in confirming action of Assessing Officer in making assessment on the basis of return furnished u/s 139 instead of making assessment on the basis of return furnished u/s 153 A of the Act. 2. Ld. CIT (A) erred o....
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..../s139(1). The last column is amount of income assessed by the A.O. in the assessment order passed by him u/s 153A:- Assessment year Income declared in original return u/s 139(1) Income declared in return filed u/s153A Excess Dep. Claimed in the return filed u/s 153A as compared to the original return Assessed income u/s 153A 2001-02 152400 24200 210186 362586 2002-03 317660 218320 162850 480510 2003-04 330540 262430 115426 445966 2004-05 1055830 1004940 115769 1171600 2005-06 1497460 1466890 69621 1567081 2006-07 1477450 1387740 104410 1581860 4. In reply ....
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....nance Act 2012 w.e.f. 1.7.2012. He further submitted that Explanation (5) to Section 32 is clarificatory and hence, retrospective. The same is inserted by the Finance Act 2001 w.e.f. 01.04.2002 and as per this explanation, it was provided that sub-section (1) to Section 32 shall apply whether or not the assesses has claimed the deduction in respect of depreciation in computation of his total income. He submitted that depreciation has to be allowed to the assessee which is allowable as per law and it should make no difference that assessee has claimed lesser amount of depreciation in the original return of income filed by the assessee u/s 139(1). Reliance was placed by him on various judicial pronouncements but in our considered opinion, the....
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....5 have not abated because the assessment proceedings were not pending for these four years on the date of search i.e. 19.09.2006. But the assessment for the remaining two years i.e. assessment years 2005-06 and 2006-07 have abated. In our considered opinion, for the purpose of assessing the income for earlier four years i.e. assessment years 2001-02 to 2004-05, the assessee cannot be allowed to raise a new claim regarding depreciation claimed and allowed at a lesser amount in the return filed by it u/s 139(1) because in those cases, where the assessments have not abated, the only change which can be made in the assessment u/s 153A over and above the assessment already completed, is to be on the basis of the material found in the course of s....
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.... return filed by it u/s 153A and after this, he can make the adjustment on account of excess depreciation claimed by the assessee. Accordingly, we direct the A.O. to recompute the income of the assessee in assessment years 2001-02 to 2004-05 by starting with the amount of income declared by the assessee in the return filed by it u/s 153A and making addition on account of excess depreciation claimed by the assessee in those four years in the return of income filed by the assessee u/s 153A as compared to depreciation claimed in the return of income filed by the assessee u/s 139(1). Ground No.1 of the assessee in all these four years is allowed whereas the remaining two grounds i.e. grounds No.2 & 3 in all these four years are rejected. 8. ....
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....im of the assessee regarding bad debts u/s 36(1)(vii) by following the judgment of Hon'ble Gujarat High court rendered in the case of Dhal Enterprises and Engineers Pvt. Ltd. Vs CIT as reported in 207 CTR 729 (Guj.) but while computing the income on page 4 of the assessment order, he has made only one addition of Rs. 69,621/- i.e. with regard to excess depreciation. Now, this issue is covered in favour of the assessee by the judgment of Hon'ble Apex Court rendered in the case of TRF Ltd. as reported in 323 ITR 397 wherein, it was held that bad debt is allowable in the year of write off of bad debt and the assessee is not required to establish that the debt have actually become bad. Respectfully following this judgement of Hon'ble Apex Court....