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TMI Blog2022 (4) TMI 670X X X X Extracts X X X X X X X X Extracts X X X X ..... f the said assessment came to be examined by the learned CIT and, on such examination, he was of the view that the assessment order passed by the Assessing Officer under Section 143(3) of the Act suffered from the following errors which were prejudicial to the interest of the Revenue:- (i) On perusal of the assessment record, it is noticed that as per the profit & loss account & balance sheet for the previous year relevant to assessment year filed by you, you have claimed loss on sale of shares amounting to Rs. 58,47,211/- in addition to loss on future trading Rs. 50,64,731/- directly debited to the profit & loss account. In this regard, the assessing officer has not verified the eligibility of the said claim as business loss as claimed by you or was in the nature of capital loss or speculation loss which was required to be treated separately from the claim as business loss. The Assessing officer has not verified your claim of loss on future trading on account of transactions in the equities & commodities from the angle of provisions of section 43(5) of the Act & their allowability as business loss. (ii) On further verification of the assessment records, it is seen that you hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to why the assessment order passed by the Assessing Officer under Section 143(3) of the Act should not be revised by treating the same as erroneous and prejudicial to the interest of the Revenue. In reply, it was submitted by the assessee in respect of first error allegedly pointed out by the learned CIT that the assessee, in his individual capacity, was also engaged in the business of trading in shares and securities and this factual position was duly taken note of by the Assessing Officer in the assessment order itself. It was also submitted that the scrip-wise quantitative details of shares traded by the assessee during the year under consideration were given in the Tax Audit Report and the same were duly available on record when the assessment was completed by the Assessing Officer under Section 143(3) of the Act. It was submitted that even the relevant details regarding the loss on future trading of Rs. 50,64,731/- were duly furnished by the assessee and the same were also available before the Assessing Officer when he completed the assessment under Section 143(3) of the Act. The learned CIT, however, found that no inquiry whatsoever was made by the Assessing Officer while all ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d declared the income of Rs. 2,00,44,922/- only in the year under consideration and the remaining amount of closing WIP was not at all shown by the assessee which ought to have done as per the Mercantile System of Accounting followed by him. He held that the assessee thus had clearly underreported his income from Andhra project by Rs. 74,99,454/- being the amount actually received against the said project in the year under consideration and further by understatement of closing WIP to the extent of Rs. 1,15,87,235/- (opening WIP Rs. 3,72,00,700/- plus purchases Rs. 19,30,911/- minus contract income declared in the Profit & Loss A/c Rs. 2,00,44,922/- minus underreported contract income of Rs. 74,99,454/-). 5. As regards the claim of the assessee for depreciation in respect of block of asset under the head "plant & machinery", the learned CIT noted that the said depreciation to the extent of Rs. 17,44,750/- was in respect of "plant and machinery" pertaining to Andhra project. Since as per assessee's own submission, no work was carried out in respect of Andhra project during the year under consideration, the learned CIT held that the claim of the assessee for depreciation on plant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cer will compute the taxable income of the assessee for the year under consideration, after giving effect to the directions in para 7(i) to 7(iii) above. Aggrieved by the order of the learned CIT passed under Section 263 of the Act, the assessee has preferred this appeal before the Tribunal. 7. We have heard the arguments of both the sides and also perused the relevant material available on record. As regards the first error allegedly pointed out by the learned CIT in the order passed by the Assessing Officer under Section 143(3) of the Act allowing the claim of the assessee for loss on sale of shares amounting to Rs. 58,47,211/- as well as loss on future trading Rs. 50,64,731/-, it is observed that even though the quantitative details of the shares traded by the assessee were reflected in the Audit Report filed by the assessee along with his return of income as pointed out by the learned Counsel for the assessee, there is nothing on record to show that any inquiry whatsoever was made by the Assessing Officer so as to ascertain whether the loss claimed by the assessee on sale of shares was in the nature of capital loss or speculation loss. As found by the learned CIT on examinati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s duly offered to tax in that year. It is thus clear that there was a substantial closing work-in-progress as on 31.03.2009 in respect of work already completed by the assessee against Andhra Project which the assessee had failed to disclose. 9. From the perusal of the details furnished by the assessee regarding the actual amount of Rs. 1,22,97,379/- claimed to be recovered in the immediately succeeding year, i.e. AY 2010-11, the learned CIT noted that the same was received from two parties namely M/s. Ketan Construction and M/s. AMR Construction. He also noted that a sum of Rs. 74,99,454/- out of the said amount was received by the assessee in the year under consideration and the same was shown as liability by the assessee in the balance-sheet as on 31.03.2009. The learned CIT held that the said amount represented income of the assessee from Andhra Project for the year under consideration and he accordingly directed the Assessing Officer by his impugned order to make addition to that extent to the income of the assessee for the year under consideration. In this regard, the learned Counsel for the assessee has contended that the said amount received during the year under considera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rved that even the learned CIT in his impugned order has not disputed this position. He however held that only maintenance work was carried out by the assessee on canal and there was also some labour work done by the assessee for mixing and conveying of concrete. According to learned CIT, this work carried out by the assessee pertaining to earth-work project did not involve use of any plant and machinery. We are unable to agree with this stand taken by the learned CIT. As rightly contended by the learned Counsel for the assessee, even the maintenance work and labour work carried out by the assessee in respect of Earth-work project during the year under consideration involved use of plant and machinery and the assumption of the learned CIT, to the contrary, is without any basis. Moreover, as further contended by the learned Counsel for the assessee, the plant and machinery pertaining to Andhra Project as well as Earth-Work Project were kept ready for use by the assessee and, keeping in view the passive use, the assessee was entitled to claim depreciation in respect of the said plant and machinery. It is also pertinent to note here that, as per the concept of block of assets, individ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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