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TMI Blog2015 (9) TMI 557X X X X Extracts X X X X X X X X Extracts X X X X ..... herein would also be a subject of consideration of the Assessing Officer while passing the order on remand. In fact, the chargeability to tax as shortterm capital gain is not in dispute, only the year of taxability is to be examined. The Assessee itself has offered the above amount to tax as short-term capital gain - No substantial questions of law. - Decided against revenue. Depreciation on leased assets - Tribunal restoring the issue - Held that:- CIT(A) while following the order for the Assessment Year 1995-96 has not followed the same in its entirety. The CIT(A) after holding that the assessee is not entitled to its claim for depreciation as the lease transactions under reference, were not genuine did not consider the alternative sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he income declared by the assessee as per return of income on account of Short Term Capital Gain should not be taxed in A. Y. 1996-97 and set aside the entire issue without appreciating the ratio laid down by the Hon'ble Supreme Court in the case of M/s. Goetz (India) Ltd? (2) Whether on the facts and in the circumstances of the case and in law, the Tribunal was justified in setting aside the entire issue of Short Term Capital Gain without directing the A.O. whether the advance of ₹ 35,00,000/- forfeited by cancellation of agreement should be treated as income of the assessee? (3) Whether on the facts and in the circumstances of the case and in law, the Tribunal was justified in restoring the issue of disallowance of de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same should not be taxed as shortterm capital gains in the subject Assessment Year; (c) However we find that following observations in Goetz (India) Ltd. (supra) supports the case of the RespondentAssesee: .... . . . However, we make it clear that the issue in this case is limited to the power of the assessing authority and does not impinge on the power of the Income Tax Appellate Tribunal under section 254 of the Income Tax Act, 1961. (d) The aforesaid decision has been followed by this Court in CIT v/s. Pruthvi Brokers and Shareholders Pvt. Ltd. 349 ITR 366 wherein it has been held that Appellate Authorities have power to consider a claim, not made in the Return. In fact, in paragraphs 21 and 22 it has referred t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the deduction in view of two orders of the Special Benches of the Tribunal and the assessee further stated that it had raised these additional grounds on learning about the legal position subsequently. Thus, it follows that even where an assessee has offered tax in the subject assessment year, it was open to the assessee before the Appellate Authority to raise additional grounds to the effect that same should not be included in the total income for the purposes of taxation. (e) So far as Question 2 is concerned, the entire issue is with regard to the year of taxability has been restored to the Assessing Officer for fresh consideration. Therefore, the issue raised herein would also be a subject of consideration of the Assessing Off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Considering the fact that it is an old matter, relating to Assessment Year 1995-96, and that the assessee has agreed not to press its claim for depreciation, I am not as stated above, adjudicating on the genuineness of the lease transactions in dispute and the claim for depreciation, in respect of items not covered by the CIT(A)s order for A. Y. 1994-95. 4.3:With regard to the alternate plea of the appellant, in my view, the asssessing officer, having treated the lease transaction as a finance or a loan transaction in absence of conclusive proof of any genuine purchase or lease of assets, he ought not to have assessed to tax the income offered to tax as lease rent in its entirety. It stands to reason that, in a loan transaction, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould get relief of the principal amount included in the lease rent income subjected to tax. Ground 15 is therefore decided in favour of the appellant. Ground 16 to 18 are not pressed do no arise for consideration. In the result, the appeal is partly allowed. (d) The impugned order records the fact for the present Assessment Year, the CIT(A) has followed his order for the Assessment Year 1995-96 by inter alia observing as under: Looking to the facts and also the appellate decision given in the appellant's case in A. Y. 1995-96 as stated above, it is held that the A. O. has rightly disallowed the claim of the appellant for depreciation amounting to ₹ 4,93,79,997/-. Not only this, but against the appellate order passed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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