TaxTMI 
TaxTMI 
2015 (10) TMI 2500
X X X X Extracts X X X X
X X X X Extracts X X X X
....e of Rs. 7,46,088/- made by AO an account of earnest money given for acquisition of land. 2. Briefly stated the facts of the case are that assessee is engaged in the business of manufacturing of readymade garments from fine knitted fabric and woven fabrics. For the assessment year 2007-08, the assessee submitted its return on 24.10.2007 declaring a loss of Rs. 63,52,353/-. The return was processed u/s 143(1) of the Income-tax Act, 1961 (in short 'the Act') on 6.2.2009 at a loss of Rs. 63,52,253/-. Subsequently, the case was selected for scrutiny and statutory notices u/s 143(2) and 142(1) along with questionnaire were issued and served upon the assessee. The Assessing officer noticed that asse....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ring nature resulted to the assessee, expenditure in question cannot be treated to be of capital nature. 4. After hearing the Ld. representatives of both the parties we do not find any infirmity in the order of CIT(A) on this issue. In our view, if any asset is acquired and if it is a benefit of enduring nature, then, of course, assessee cannot get deduction of the amount for acquisition of land as Revenue expenditure. When land was not acquired, no capital asset has been acquired and therefore, the payment of Rs. 7,46,088/- is to be allowed as business loss. In our view, the CIT(A) has correctly held that the claim of the assessee as business loss and deserves to be allowed. Accordingly, we uphold the order of the Ld. CIT(A....
X X X X Extracts X X X X
X X X X Extracts X X X X
....fficer disallowed a sum of Rs. 1,41,500/-. 7. On appeal, the CIT(A) deleted the addition for the reasons stated in para 5.3 of the order. The Ld. CIT(A) observed that there was no creation of capital asset in this case. He further observed that merely because the benefits accruing from the study were enduring does not by itself make the expenditure a capital expenditure. He relied on the judgement of the Hon'ble Supreme Court in the case of Empire Jute vs CIT [1980] 124 ITR 1 wherein the Hon'ble Supreme Court held that it is not every advantage of enduring nature acquired by an assessee that brings the case within the principle laid down in this test. What is material to consider is the nature of advantage in commercial sense and....
X X X X Extracts X X X X
X X X X Extracts X X X X
....relates to the promotion of products of company in order to sustain market pressure and to maintain its market position. It is also explained that the scope further included employee restructuring also so as to save the manpower cost and to achieve best utilization of human effort. , Thus it is clear that there was no creation of capital asset in the case of assessee company. In view of the above, we do not find any merit in the ground raised by the Revenue. Accordingly, we dismiss this ground. 9. Ground No3 of the appeal reads as under:- 3. Whether on the facts and circumstances of the case and in law, the Ld C1T(A) erred in deleting the AO to allow claim of the assessee of additional depreciation and ignoring the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ter dated 10.12.2009 the AO apparently rejected the appellant's request for claim of additional depreciation on the grounds that no fresh claim can be entertained except through the revised report in view of the decision of the Hon'ble Supreme Court in the case of CIT vs. Goetze India Ltd. as reported in 284 ITR 323. I do not agree with this view of the AO. Reference in this regard may be made to the case Budheual Co-operative Society Ltd. In this case a similar claim of deduction u/s 80-IP was disallowed by the AO on the ground that the claim was not made in the original return of income nor any revised return was filed for this claim. The claim had been made during the assessment proceedings through the letter filed before the AO.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....umstances of t the case, even though the assessee had raised said claim by way of letter dated 15.12.2004 and had not furnished any revised return of income." 12. We have heard the rival submissions. It is apparent from the records that the Assessing officer has rejected the assessee's request for claim of additional depreciation on the ground that no fresh claim can be entertained except through revised return in view of the decision of the Hon'ble Supreme Court in the case of Goetze (India)Ltd v CIT [2006] 284 ITR 323 (SC). In the case of Goetze (India) Ltd (supra) the Hon'ble Supreme Court has made it clear that the decision in the said case was restricted to the power of the Assessing officer to entertain the cla....