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TMI Blog2016 (11) TMI 1254X X X X Extracts X X X X X X X X Extracts X X X X ..... exercise to be undertaken by the fact finding bodies, including appellate forums at the level of Commissioner of Income Tax (Appeals) and ITAT, the authorities prescribed under the provisions of the I.T.Act, 1961, would be frustrated, if this Court were to undertake this exercise in writ jurisdiction of this Court. Therefore, without expressing any opinion on the valuation of the plant and machineries purchased by the assessee-company and its right to claim depreciation thereon, the petitioner-company is relegated back before the first appellate authority namely, the Commissioner of Income Tax (Appeals). It goes without saying that if the assessee-company leads appropriate evidence to support its claim even before the first appellate autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt while upholding the order of the ITAT remanding the matter back to the Assessing Authority has observed as under:- 5. Heard, Learned counsel for both sides. It is clarified that the remand is an open remand. The Assessing Authority is free to assess sale value of the product with reference to the materials pertaining to the supplier and other relevant material if any. Accordingly, the appeal is disposed of . 4. The matter in issue is, as to whether the plants and equipments, namely two Biogas Plants and one Flameless Furnace shown to have been purchased by the petitioner-assessee during the relevant Assessment Year at the stated the price of ₹ 50 lakhs for two biogas plants and ₹ 44,20,800/- for one flameless furnac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent of ₹ 2.53 lakhs and reducing the claim of depreciation accordingly, has computed the net tax payable by the assessee company along with the interest and penalty in the impugned order. Therefore, the petitioner-assessee has approached this Court by way of this writ petition, aggrieved by the said order. 7. The learned senior counsel appearing for the petitioner-assessee urged before the Court that after the lapse of more than 20 years, in this second round of litigation, the evidence of the erstwhile or contemporary period is almost lost and therefore, both the sides, the petitioner-assessee as well as the Revenue were rendered clueless about the proper purchase value and assessment of price of these equipments and therefore, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that evidence adduced by the Revenue also was on the assessee. Irrespective of the rounds of litigation, the assessee perhaps cannot claim any immunity from this burden to be discharged by it for establishing the fair and correct market value or the cost of the plant and machineries in question. If the invoices produced by it in support of the said purchase of the equipments were not relied upon by the Assessing Authority finding them to be prima-facie highly inflated on the face of the valuation Ccertificate given by one of the Chartered Engineer, namely, M/s. Techno Economic Consultants, were to be treated by the gospel truth and the petitioner was to be allowed 100% depreciation on that basis, that would obviously cut into the income tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... powers as are available to the Assessing Authority under the Act, the said first appellate authority is expected not to shirk its responsibility, but decide the appeal on merits weighing such evidence and he is expected to record his own appropriate findings of fact, because multiple rounds of litigation and remands have already taken place in this case. 12. With these observations, the writ petition is disposed of and it is directed that, if the appeal against the impugned order dated 29.02.2016 is filed by the petitioner within a period of one month from today, the first appellate authority namely, CIT (Appeals) will not raise any objection as to the limitation for filing the said appeal against the petitioner-assessee and will decide ..... X X X X Extracts X X X X X X X X Extracts X X X X
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