9911796707
TMI Blog2018 (1) TMI 594X X X X Extracts X X X X X X X X Extracts X X X X ..... revenue. Mere set-aside without proper findings by him will be illegal and without proper jurisdiction. Therefore, we restore the order of AO passed u/s 143(3) of the Act - Decided in favour of assessee. - ITA No. 79/Hyd/2014 - - - Dated:- 10-1-2018 - Smt. P. Madhavi Devi, Judicial Member And Shri S. Rifaur Rahman, Accountant Member Assessee by : Shri P. Murali Mohan Rao Revenue by : Shri J. Siri Kumar ORDER Per S. Rifaur Rahman, AM This appeal is filed by the assessee against the order of CIT - III, Hyderabad, dated 25/03/2013 passed u/s 263 of the Income-tax Act, 1961 (in short the Act ) relates to the AY 2008-09. 2. On perusal of record, we find that there was a delay of 225 days in filing the appeal before us. In this connection, assessee filed a petition requesting for condonation of the said delay explaining the reasons that since the 263 order was misplaced by office staff and when the AO issued notice to the assessee for giving effect to the directions of the CIT dated 02/12/2013, the assessee filed the appeal belatedly against the order of CIT u/s 263. Considering the submissions of the assessee and the objection of the ld. DR, we hereby condon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duly registered with the office of the Asst. Commissioner of Central Excise, B Division, Hyderabad with registration No. AAKCS7820FXM004. The mill is also been favoured with a factory licence No. 31560 by the department of Industries, Govt. of AP. The mills use chilled rolls for rolling the billets which are the raw material for the tower parts after their preheating in furnace. Chilled rolls are rolling mill rolls and are an integral part of the rolling process of iron and steel and are used to trim and resize the heated large billets and blooms to commercial sizes. As a part of the process, the heated billets and blooms are passed through the rolling mill rolls which are fixed into mill stands and rotate at high speeds and therefore are classified as plant machinery. As the company is engaged in the rerolling of iron and steel products, the company is eligible to claim 80% depreciation on these rolling mill rolls as per the item 8(vii) of the depreciation table of the IT Act. It is pointed out in the notice that the company was not engaged in the generation of power and the machinery was not an energy saving devise thereby disallowing the depreciation. However, we wish to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Petrochemicals Corp Otd. Vs. Department of Income Tax vide ITA No. 664 665/Ahd/2008, order dated 29/06/2012. 6. After considering the submissions of the assessee, the CIT observed as under: 6. As regards the claim for depreciation, the assessee is relying on item 8(vii) of Appendix I, Part A, which gives schedule 80% depreciation in the iron and steel industry. As per the bills/invoices submitted by the assessee as well as other submissions made, the assessee has purchased MS chilled bars. The assessee is claiming that these MS chilled bars and rolling mill rolls mentioned in Appendix I are one and the same item and entitled to 80% depreciation. Secondly, out of plant machinery purchased during the year on which depreciation of 80% has been claimed, these MS chilled bars/rolls account for ₹ 24,25,84,899 only, while plant and machinery amounting to ₹ 28,25,35,757 purchased during the year is stated to be air pollution control equipment and water pollution treatment equipment purchased from M/s Omicron Bio Genesis Ltd. and M/s Futuretech Industries Ltd. As per the schedule for depreciation, air pollution control equipment are entitled to 100% depreci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edings u/s 263 with a view to starting fishing and roving enquiries in the orders which are already concluded without appreciating the fact that the order passed was not erroneous. 5. The Ld. CIT has invoked jurisdiction u/s 263 without the basic conditions being satisfied i.e. order passed is erroneous and prejudicial to the interests of revenue. 6. The Ld. CIT erred in passing the order u/s.263 with a direction to set aside the assessment order passed dated 28.12.2010 for enquiries regarding depreciation on plant and machinery and unutilized CENVAT credit. 7. The Ld. CIT erred in disallowing the claim of additional depreciation by stating that higher allowable to the assessee company. 8. The Ld. CIT erred in passing the order u/s.263 with a direction to set aside the assessment order passed dated 28.12.2010 for enquiries regarding depreciation on plant and machinery and unutilized CENVAT credit. 9. The Ld. CIT erred in disallowing the claim of additional depreciation by stating that higher rate of depreciation is not allowable to the assessee company. 10. The Ld. CIT erred in upholding the claim of depreciation without considering the fact that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessee brought to the notice of the CIT that in respect of group concern M/s Sujana Metal Products, similar depreciation claim was allowed by the AO when the CIT set aside the issue to him for examination, but, in the given case, the CIT ignored the submissions of the assessee. We find that similar issue came up for consideration before the coordinate bench of this Tribunal in the case of New Cyberabad City Projects Vs. ITO (supra) wherein the bench has quashed the order passed by the CIT u/s 263 by observing as under: 13. From reading of sub-section (1) of section 263, it is clear that the power of suo moto revision can be exercised by the Commissioner only if, on examination of the records of any proceedings under this Act, he considers that any order passed therein by the Income-tax Officer is 'erroneous in so far as it is prejudicial to the interests of the Revenue'. It is not an arbitrary or unchartered power; it can be exercised only on fulfilment of the requirements laid down by sub-section (1). The consideration of the Commissioner, as to whether an order is erroneous in so far as it is prejudicial to the interests of the Revenue, must be based on materials on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ome prima facie material on record to show that tax which was lawfully exigible has not been imposed or that by the application of the relevant statute on an incorrect or incomplete interpretation a lesser tax than what was just has been imposed. 15. In our opinion, in the present case, the learned Assessing Officer after duly considering the explanation and information filed in response to the notice issued u/s. 143(2) of the Act, on being satisfied with such explanation chose not to make any further enquiry. Endless enquiry is not possible and it is for the learned Assessing Officer to decide when to end the enquiry. The learned CIT cannot transgress the jurisdiction under Section 263 of I.T. Act, 1961 by mentioning that no proper enquiry was made. Reliance in this regard is placed on the decision of Hon'ble Agra Bench of ITAT in the case of Rishi Kumar Gupta v. CIT, 90 TTJ 645 wherein held that the Assessing Officer having made the assessment after enquiry, as admitted by the CIT in his notice as well as in his order u/s. 263, he was not justified in setting aside the assessment on the ground that the Assessing Officer had failed to make proper enquiry . Followin ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
