AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2021 (3) TMI 651
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....y claimed. Cognizance of this revised return was not taken by the AO. He has passed assessment order on 30.12.2008 determining taxable income at Rs. 3,14,59,505/-. The assessee went before the ld.first appellate authority, who took cognizance of the revised return and held that the AO ought to have decided the issue of depreciation after taking into consideration revised return filed by the assessee. Ultimately, matter came up before the Tribunal, who remitted the matter back to the file of AO with direction to re-adjudicate the issue with regard to the claim of depreciation after taking into consideration revised return filed by the assessee. In pursuance of the ITAT's order, the ld.AO has re-adjudicated the issue and decided excess claim of depreciation. The discussion made by the AO read as under: "Depreciation on boiler As per the directions of the Hon'ble IT AT, as stated above, the assessee vide letter dated 04/06/2015 was requested to furnish evidence and explanation for claiming depreciation at 80% on boilers made in the revised return of income. In response thereto, the assessee vide letter dated furnished evidence in respect of filing of the revised return of inc....
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....on for permission to lead additional evidence, as provided in Rule 46A of the Income Tax Rules, 1962, the assessee has filed written submissions which were forwarded to the AO, and after considering the remand report submitted by the AO, the ld.CIT(A) has allowed the claim of the assessee. We deem it appropriate o take note of the relevant finding recorded by the ld.CIT(A): "3.5. Now coming to the merits of the case I have gone through the submission and the paper book filed by>the appellant, the only dispute in the matter is regarding the rate of claim of depreciation. Appellant has clamed depreciation @ 80% on boiler whereas the AO has allowed the depreciation @ 15%. AO is not disputing the genuineness of the transaction as he has not disallowed the entire depreciation. The only issue is about the rate of depreciation. I have gone through the copies of bills submitted by the appellant, it can be seen from the bills that the boiler purchased by the appellant is BFBC boiler (bubbling fluidized bed combustion) which according to the appellant is specifically mentioned in the Act that depreciation will be allowed @ 80%. The relevant part of the act is as under: Energy saving dev....
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....ts. I find that the appellant is correct in stating that bills are an important piece of evidence and further to support their contention they have also submitted engineers certificate. Further, the payments have also been made through banking channel and there is no doubt about the genuineness of the parties horn whom purchases have been done. Most importantly, the genuineness of the purchase was never doubted in the assessment orders passed by the A.O. It was a matter related to the amount of the depreciation to be given which was to be verified and the A.O. in the Remand Report has not concentrated on this aspect and started looking for the genuineness of the purchase which was not the issue to be remanded and reported. 3.7. AO has further stated In the Remand Report that he has issued notice u/s 133(6) to both the parties from whom purchases were done, however no response has been received from them. The appellant submitted that notices have been duly served and as the matter is more than 11 years old therefore it might be possible that these parties have destroyed the records as according to /aw only 6 years details are required to be kept. Appellant also staled the AO s....
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....ation Rs. 4,54,45,709/-. The ground of the appeal is allowed. 5. The ld.DR on the other hand submitted that in the second round of assessment proceedings, the assessee never produced material indicating the fact that plant & machinery on which depreciation has been claimed at the rate of 80% does qualify for such claim. The AO has repeatedly asked the assessee to produce evidence in respect of the filing of the revised return of income, where it has claimed depreciation at the rate of 80%. According to the AO, this rate of depreciation is applicable on high efficiency boilers and the assessee failed to prove that its boiler was of that category. While impugning the order of the ld.CIT(A), the ld.DR further contended that the ld.CIT(A) has ignored this non-verification of the details under the garb of arguments that 11 years have passed, but these 11 years have not been passed due to the mistake of the AO, rather it is the assessee who failed to collect evidence and submitted before the AO. Certificate of chartered engineer considered by the ld.CIT(A) is dated 24.1.2017 whereas the assessment order was passed on 31.7.2015. This certificate was not produced before the AO, and it co....
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....ded by the AO extracted (supra). A perusal of the above finding would indicate that the AO has granted ample opportunity and specifically directed the assessee to produce evidence exhibiting the fact that the boiler installed by it, is of higher efficiency on which depreciation at the rate of 80% can be claimed. According to the finding of the AO, no such evidence was produced. Rule 46A of the Income Tax Rules provides a mechanism for an assessee for producing additional evidence before the ld.CIT(A). This rule read as under: "46A. (1) The appellant shall not be entitled to produce before the [Deputy Commissioner (Appeals)] [or, as the case may be, the Commissioner (Appeals)], any evidence, whether oral or documentary, other than the evidence produced by him during the course of proceedings before the [Assessing Officer], except in the following circumstances, namely :- (a) where the [Assessing Officer] has refused to admit evidence which ought to have been admitted ; or (b) where the appellant was prevented by sufficient cause from producing the evidence which he was called upon to produce by the [Assessing Officer] ; or (c) where the appellant was prevented by sufficie....
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....essee, and sent them for comments of the AO. The ld.CIT(A) has made reference to the certificate of chartered engineer in support of his reason that boiler was installed. Copy of that certificate is available on page no.54 of the paper book, which reads as under: CERTIFICATE TO WHOM SO EVER IT MAY CONCERN SUB: EFFICIENCY CERTIFICATE OF BOILER This is to certify that M/s. Chiripal Industries Limited, Registered Office at 199, 200/1 & 2, Saijpur-Gopalpur Pirana Road, Piplej, Ahmedabad-382405, have installed the BFBC boiler (bubbling fluidized bed combustion) in the year 2005-06 and it is specialized boiler which is of the category of Fluidized bed boiler and being covered under the income tax act under Energy saving devices on which 80% depreciation rate should be applied. Place : Ahmedabad Date : 24/01/2017 Sd/- S.K. Patel. (Chartered Engineer)" 11. A perusal of the certificate would indicate that it is dated 24.1.2017 issued after the assessment order. This chartered engineer has no where specified that such BFBC boiler was installed under his supervision or he has inspected the boiler. He simply stated that this concern has installed a boiler but no mention on w....