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TMI Blog2021 (4) TMI 543X X X X Extracts X X X X X X X X Extracts X X X X ..... used the material available on record. We have observed that the assessee is a Public Sector Enterprise being a Government of India Undertaking. We have observed that the assessee has raised grounds of appeal with respect to enhancement to income made by ld. CIT(A) with respect to write back of depreciation by the assessee which was enhanced by learned CIT(A) to Rs. 292.92 lacs, as against addition to the income of Rs. 43.95 lacs originally made by the AO while framing assessment against the assessee.. The AO had made additions to income of the assessee to the tune of 15% of the total depreciation written back by the assessee by adding Rs. 43.95 lacs to income of the assessee, which was later enhanced by ld. CIT(A) to entire write back of depreciation to the tune of Rs. 292.92 lacs. The fundamental purpose and duties of tribunal is to grant justice to both the parties with an objective so that rightful and legitimate income-tax within provisions of the 1961 Act which is rightfully due and payable by tax-payer for an assessment year be computed and collected under the authority of law. We have observed that finding was given by the Tribunal in Para-7 of its appellate order dated 28. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12 wherein it is stated that the assessee has computed its Brought forwards losses and unabsorbed depreciation in an incorrect manner and further elaborations were made by learned CIT(A) while enhancing the income of the assessee on this issue. The tribunal has not dwelt upon /adjudicated this issue of enhancement of income by learned CIT(A) , which may require detailed arguments. The tribunal has dismissed the said ground of appeal raised by assessee on the grounds as being not pressed. The assessee is prejudiced by said dismissal in limine. Since Tribunal has restricted its finding to 43.95 lacs, it will be in the interest of justice that the Grounds No.5 and 6 which were not adjudicated completely by tribunal are restored back to the file of Tribunal for fresh adjudication and to this extent the MA filed by the assessee on this issue is partly allowed for statistical purposes, as indicated above.We order accordingly. 7. The second issue raised by the assessee in MA is with respect to the restricting of the relief by tribunal u/s. 145A of the Act to the tune 48.33 lacs as was relatable to income enhanced by learned CIT(A) , while Tribunal has not adjudicated on the additions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this issue, as indicated above." 1.2 That's how the assessee is now before us after its aforesaid MA was allowed by tribunal vide order dated 07th January 2021 , now seeking adjudication of its ground number 5 , 6 and 7 raised by it in memo of appeal filed with the tribunal in ITA No. 117/Alld/2011 for ay: 2007-08 , which stood restored back to the file of the tribunal for fresh adjudication by tribunal , vide tribunal order dated 07th January 2021 in MA No. 53/Alld/2016. The Ground No. 5,6 and 7 raised by assessee in memo of its appeal in ITA No. 117/Alld/2011 for ay:2007-08 filed with tribunal, are reproduced as hereunder: 5.Because the learned C.I.T.(A) erred in further enhancing the addition by Rs. 2,48,97,000/- on account of depreciation of earlier years charged as per Companies Act in audited accounts written back in the books of Account during the assessment year 2007-08. 6. Because the learned C.I.T.(A) failed to appreciate the fact that write back of earlier years depreciation in the books of account does not affect the computation of current years total income as, in the past every year the depreciation debited in the books has always been added back and deprecation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee being aggrieved filed MA. The tribunal allowed the MA by restoring the issue back to its file for fresh adjudication of ground number 5 & 6. During the course of hearing before tribunal which was conducted pursuant to its order in MA through videoconferencing through virtual court, the counsel of the assessee and ld. CIT-DR have put in their arguments before the Bench to support their contentions. Both the ld. Counsel for the assessee as well ld. CIT-DR agreed that the matter need to go back to the file of the AO for fresh adjudication, as verifications are required to be made by AO as to the claim of depreciation made by the assessee in preceding years and impact of this reversal of depreciation of earlier years on tax liability of the assessee under the provisions of the 1961 Act for the impugned ay. Thus, keeping in view the entire factual matrix of the case and after hearing both the parties, we are of the considered view that this issue needs to go back to the file of the AO for fresh adjudication on merit in accordance with law. The assessee is directed to produce relevant evidences that it is claiming correct depreciation and written down value of assets for ear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... although is leviable on manufacturing of goods but is payable when the goods are removed from factory. We have observed that the auditors have given qualifying adverse remark on the valuation of finished goods as at year end in the audited balance sheet for the year 2006-07(placed in file), without including excise duty to the tune of Rs. 64.73 lacs. The qualifying note read as under: "2(v)(e) No provision has been made for the unpaid amount of excise duty of Rs. 64.73 lacs towards the stock of finished goods lying at the Warehouse of the Company. This has resulted in understatement of stock by Rs. 64.73 lacs(Sch 11.1 Note No. 7(ii) and to that extent liability is also understated." Similarly in Note 7(ii) to notes to accounts to audited financial statements for the financial year 2006-07, it is stated that no provision has been made towards excise duty on finished goods in warehouse amounting to Rs. 64.73 lacs (previous year Rs. 4.60 lacs) We have observed that the issue is no more res-integra keeping in view decision of Hon'ble Apex Court in the case of CCE v. Polyset Corporation 2000 (67) ECC 607 , 2000(115) ELT 41. The decision of Hon'ble Karnataka High Court in the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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