2012 (8) TMI 703

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..... assessment year 2005-06 on 28.03.2006 admitting income of Rs. 1,40,32,270/-. The return of the assessee was processed under section 143(1) of the Income Tax Act, 1961 (hereinafter referred to as "the Act"). The Assessing Officer issued notice to the assessee under section 148 on 10.4.2008. In reply to notice, the assessee submitted that the return filed on 28.03.2006 be treated as compliance to the notice. Thereafter, notice under section 143(2) of the Act dated 23.09.2009 was served on the assessee. On the request of the assessee, reasons for reopening of assessment was given by the Assessing Officer vide letter dated 11.12.2009. During the relevant assessment year, the assessee had also installed windmill. The assessee had made investme .....

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..... order of the CIT(A) primarily on the following grounds:- "The CIT(A) has failed to appreciate the import of provision of Appendix I of Rule 5 of I.T.Rules. The second proviso to Rule 5(1A) makes it mandatory for an assessee who/which is engaged in generation or generation & distribution of power to exercise the option if it/he intends to claim depreciation as per Appendix I instead of depreciation available under Appendix(1A), before the due date of furnishing the return as per section 139(1) of the I.T.Act. The CIT(A) has failed to note that the assessee firm has filed return of income belatedly on 28.03.2006 whereas the due date for filing return u/s.139(1) of IT Act is 31.10.2005. Therefore the CIT(A) ought to have held that the assess .....

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..... lowing the appeal of the assessee. Moreover, the Assessing Officer in his assessment order has also taken contradictory stand with respect to the business of the assessee . In our considered opinion, the order of the CIT(A) is liable to be set aside and the matter requires to be remanded back to the Assessing Officer to decide the matter afresh after taking into consideration facts of the case and submissions of the assessee. The Assessing Officer is directed to pass speaking order after affording opportunity of hearing to the assessee. Ordered accordingly. 7. In the result, the appeal of the Revenue and the Cross Objection filed by the assessee are allowed for statistical purposes. Order pronounced in the open court at the time of hearin .....

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