2019 (7) TMI 2079

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....e matter of assessment order passed under s. 143(3) of the Income Tax Act, 1961 (here-in-after referred to as "the Act") dated 17/02/2015 relevant to Assessment Year (A.Ys) 2012-13. First, we take ITA No. 2633/Ahd/2015 for A.Y. 2012-13. The assessee has raised the following grounds of appeal: 1. The Learned Commissioner of Income Tax, (Appeals)-9 Ahmedabad has erred in law and on facts of the case in not allowing depreciation of Rs. 26,26,717/- u/s. 32 of the I.T. Act, 1961. 2. Your Applicant prays to reserve the right to add, alter, amend and/or withdraw any of the above grounds of appeal. The assessee vide letter dated 14th September 2018 has also filed the additional ground of appeal as reproduced under:....

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....o claimed that the deduction claimed under section 35(2AB) of the Act was withdrawn during the assessment proceedings on the misunderstanding of the approval granted by the Department of Scientific Research Institute wherein it was mentioned that the sanction is valid from 1st April 2012 to 31st March 2016. Whereas, the assessee is entitled to the deduction even before the date of the approval as held in the judgment of Hon'ble Jurisdictional High Court in the case of Banco products India Ltd versus the CIT reported in 95 taxmann.com 132. In view of the above, the learned AR before us prayed for the admission of the additional ground of appeal and set aside the same to the AO for fresh adjudication. 4. On the other hand, the learned D....

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....by the Department of scientific research Institute was effective from the year 1st April 2012 to 31st March 2016 whereas the impugned deduction relates to the PY 2011-12. 6.1 Admittedly, the issue raised by the assessee in the additional ground of appeal relates to the factual dispute which was discussed in the assessment order. As such the assessee claimed the deduction under the provisions of section 35 2 AB of the Act in its return of income which was disputed by the AO in the assessment proceedings. But the same was withdrawn by the assessee on the misunderstanding of the period of approval granted by the Department of scientific research Institute as claimed by the learned counsel for the assessee. This fact can be verified from the....

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....m despite the fact it was withdrawn before the authorities below in the given facts and circumstances. It is because the impugned issue was subject matter of the dispute before the AO. In view of the above, we are inclined to admit the ground of appeal raised by the assessee. 6.3 However, we note that the assessee had not raised its points of contention before the AO as the same was withdrawn. Therefore, in the interest of justice and fair play, we are inclined to refer the matter to the file of the AO for fresh adjudication as per the provisions of law. 6.4 It is also pertinent to note that the other issue raised by the assessee in the memo of appeal for claiming the depreciation amounting to Rs.26,26,717.00 under section 32 of the A....