9911796707
TMI Blog2012 (10) TMI 290X X X X Extracts X X X X X X X X Extracts X X X X ..... 06-07. On January 13, 2012 notice of motion was issued with respect to the following substantial questions of law:- 1. Whether under the facts and circumstances of the case, nature of business, the Tribunal's action for declining the claim and Allowance of Depreciation u/s 32(1) Exp.5 w.e.f. 01.04.2002, cannot be entertained since ground not raised before CIT(A) which is emerging from material on record? 2. Whether under the facts and circumstances, the allowance is mandatory u/s 40 (a)(ia), while considering the provisions of Section 194I proviso (unnumbered), in the determination of the 'Chargeable Income'? 2. Briefly stated, the facts necessary for adjudication of the present appeal as narrated therein are that the assessee is engaged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 2001 w.e.f. 1.4.2002. It read thus:- "Explanation 5.- For the removal of doubts, it is hereby declared that the provisions of this sub-section shall apply whether or not the assessee has claimed the deduction in respect of depreciation in computing his total income." 5. A plain reading of the aforesaid Explanation spells out that the provisions of Section 32 relating to depreciation shall apply wherever the assessee may or may not have claimed deduction in respect of depreciation in computing the income. In other words, the effect of the aforesaid Explanation is that the Assessing Officer is duty bound to allow depreciation even without there being claim by the assessee wherever the same is admissible to the assessee. 6. Learned cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expenses, which, on appeal, has been correctly confirmed by the CIT(A). Ground No.5 is dismissed." 8. On the strength of the aforesaid observations, it was contended by the revenue that once the counsel for the assessee had admitted, the assessee was statutorily to deduct tax at source out of the rent paid by him but had failed to do so, therefore, the provisions of Section 40(a)(ia) of the Act were applicable and the question now claimed by the assessee does not arise. 9. Learned counsel for the assessee submitted that the Tribunal factually incorrectly recorded that the assessee had admitted regarding its obligation to deduct tax at source out of the rent paid whereas no such plea was accepted before the Tribunal. There is no material ..... X X X X Extracts X X X X X X X X Extracts X X X X
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