2021 (5) TMI 821

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....d both parties. Case file perused. 2. The Revenue has raised the following substantive grounds in the instant appeal: "i. The order of the CIT(A) is erroneous both in law and in facts of the case. ii. The learned CIT(A) erred in deleting disallowance of depreciation of Rs. 2,08,73,301/- without offering the assessing officer a reasonable opportunity to examine the additional evidences/documents filed before the learned CIT (A), in accordance with Rule 46A(3) of IT Rules, on the issue of depreciation disallowance. iii. The learned CIT(A) erred in deleting addition made U/s. 2(24)(x) r.w.s. 36(1)(va) of the Act of Rs. 10,06,303/- in respect of delayed payment of employee's provident fund without appreciating ....

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....e's depreciation claim to the tune of Rs. 2,08,73,301/- is that the CIT(A) has erred in law and on facts in deleting the same after admitting additional evidence in violation of Rule 46A of Income Tax Rules, 1962. He invited our attention to the CIT(A)'s detailed discussion to this effect as follows: "5. The first issue relates to the disallowance of depreciation Rs. 2,08,73,301/-. The Assessing Officer has disallowed the depreciation giving the following reasons: "3.1. It is noticed from the details of Depreciation and Fixed Assets that during the year under consideration the assessee purchased the following assets and claimed depreciation as under: 5.4. On perusal of above bills and invoices, it is held ....

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....9;s delayed payment on the ground that the necessary compliance had been made before the due date of filing of the return. 4.1. Learned departmental representative's case is that it is not Section 43B but Section 36(1)(va) which governs the impugned issue and the assessee ought to have deposited the said employees provident fund before the due date prescribed in the corresponding statute than the due date of filing return u/s. 139(1) of the Act. He quotes CIT Vs. Gujarat State Road Transport Corp. [ (2014) 366 ITR 170] (Guj) and CIT Vs. Bharat Hotels Ltd. [ (2019) 410 ITR 417) (Delhi) deciding this issue in Revenue's favour. 4.2. We find no merit in the Revenue's instant arguments as well since the Explanatory Memorandum t....

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....e Act inserted vide Finance Act, 2012 w.e.f. 01-04-2013 that the main provision itself does not apply in case the assessee is not an assessee in default u/s. 201(1) 1st proviso of this Act. Hon'ble Delhi high court's decision in CIT Vs. Ansal Landmark Townships Pvt. Ltd. [(2015) 377 ITR 635] (Del) holds that the same is a curative proviso having retrospective effect. There is hardly any dispute that the said amended proviso; to be read in light of Section 201(1) first proviso, stipulates that the impugned statutory provision does not apply in case the assessee concerned is not the assessee in default for having not deducted TDS qua the corresponding expenditure payments. We thus, restore the instant issue back to the Assessing Of....

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....course of assessment proceedings, the AR was asked to produce invoices for fixed assets evidencing of purchases of fixed assets. The AR was also asked to furnish the details of utilization of fixed assets. However, the AR failed to produce evidence in support of the above assets which were purchased during the year. In the absence of evidence in support of the purchase of fixed assets as stated above and also in view of the failure on the part of the assessee to give details of utilization of assets, the depreciation claimed by the assessee as mentioned at Column No. (5) above needs to be disallowed. Hence, the amount mentioned at Col. No. 5 for the respective asset is disallowed and add....