2004 (9) TMI 44

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....x Act (hereinafter referred to as the Act) the Assessing Officer has made adjustments by adopting the written down value determined for the assessment year 1990-91 and disallowed the excess depreciation claimed in a sum of Rs. 24,14,298. Against which, the assessee filed a petition under section 154 of the Act for rectification, which has been rejected by the Assessing Officer. That order is put in issue before the Commissioner (Appeals). The Commissioner has also confirmed the order of the Assessing Officer. Ultimately the assessee moved the Tribunal by way of an appeal as aforesaid by contending that while making the adjustment, the assessing authority has exceeded his jurisdiction as conferred on him under section 143(a) of the Act, whic....

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....en by the Assessing Officer is not in accordance with law. Learned counsel relied on two decisions to support his contention. We heard learned counsel in extenso and also perused the relevant provisions of the Income-tax Act. In order to clarify the issue, we are of the view that sub-clause (i) of section 143(1)(b) of the Act has to be reproduced, which reads as follows: "(1)(a) Where a return has been made under section 139, the Assessing Officer may, without requiring the presence of the assessee or the production by him of any evidence in support of the return, make an assessment of the total income or loss of the assessee after making such adjustments to the income or loss declared in the return as are required to be made under cl....

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.... (headnote): "The Assessing Officer could not grant the benefit of depreciation when it was not claimed by the assessee. There was no provision by which depreciation could be fictionally deemed to have been claimed and granted. The assessment orders for the relevant assessment years had been passed under section 143(1), when the assessee has not claimed any depreciation and it was not permissible for the Assessing Officer to allow depreciation when it was not claimed. Resultantly, the claim as made by the assessee with regard to the written down value of the vehicle had to be accepted on the basis that the depreciation had not been claimed during the relevant years and the Assessing Officer's computation of the profit under section 41(2)....