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TMI Blog2022 (11) TMI 185X X X X Extracts X X X X X X X X Extracts X X X X ..... is correctly fed in the Part A - P L and also in the relevant clause of Tax Audit supports the contention that the depreciation is unintentionally omitted to be fed into while filing the ITR and that it is a clerical error. Considering the decision of the coordinate bench of the Tribunal in the case of Rakesh Singh [ 2012 (11) TMI 503 - ITAT BANGALORE] we are of the considered view that the assessee should be allowed the claim of depreciation u/s.32. Appeal by the assessee is allowed. - ITA No. 719/Bang/2022 - - - Dated:- 21-10-2022 - SHRI N. V. VASUDEVAN, VICE PRESIDENT AND Ms. PADMAVATHY S, ACCOUNTANT MEMBER Appellant by : Shri K G Acharya , CA Respondent by : Shri K.R. Narayana , Addl.CIT(DR)(ITAT), Bengaluru. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh v. ACIT, ITA No.1027/Bang/2011. 5. On appeal, the CIT(A) did not accept the contentions of the assessee and dismissed the appeal by holding that 8.1 Considered the facts of the grounds, material available on record and submission of the appellant alongwith the intimation issued u/s 143(1) of the IT Act. It is noted that the appellant had failed to claim the deduction allowance in the original income tax return filed by it on 17.10.2016. The return of the appellant was processed u/s 143(1) and appellant was provided with the opportunity to rectify the said defect. Consequently, thereof, the appellant filed revised income tax return 09.10.2018. However, on perusal of the said facts, it emanates that the appellant had failed to suo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is an unintended error. The ld. AR also submitted that as per Explanation 5 to section 32, even if depreciation is not claimed in the return of income, the assessee shall be allowed the depreciation claimed. The ld. AR also submitted that the Circular No.14 of 1955, provides that the Officers of the department must not take advantage of the ignorance of assessee as to his rights and that although the responsibility for claiming refund and relief vests on the assessee, the Officer should draw the attention of assessee to any refund/relief, to which they are entitled to, but they have omitted to claim for some reason or the other. 7. The ld. DR, on the other hand, relied on the order of the CIT(A). He further submitted that in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duction in respect of depreciation in computing his total income; 12. A plain reading of the above explanation would mean that even if the assessee omits to claim, the deduction towards depreciation should be allowed. We notice that the coordinate bench of the Tribunal in in the case Rakesh Singh (supra) has considered a similar issue and held as under:- 10. We have heard the rival submissions and perused the materials on record. It is not in dispute that in the instant case, return under section 139(1) was filed belatedly. Hence, the assessee is not entitled to file a revised return under section 139(5) of the Act going by the ratio laid down by the Hon'ble Apex Court in the case of Kumar Jagdish Chandra Sinha (supra). Howev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s before them indicate that some refund or relief is due to him. This attitude would in the long run, benefit the department; for it would inspire confidence in him that he may be sure of getting a square deal from the department. Although, therefore, the responsibility for claiming refunds and reliefs rests with the assessee on whom it is imposed by the law, officers should; (a) draw their attention to any refunds or reliefs to which they appear to be clearly entitled but which they have omitted to claim for some reason or other; (b) freely advise them when approached by them as to their rights and liabilities and as to the procedure to be adopted for claiming refunds and reliefs . 10.2 In view of Explanation 5 to section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n belatedly and hence not eligible to claim depreciation is factually not correct. The fact that depreciation is correctly fed in the Part A - P L and also in the relevant clause of Tax Audit supports the contention that the depreciation is unintentionally omitted to be fed into while filing the ITR and that it is a clerical error. 14. In the light of the above discussion and considering the decision of the coordinate bench of the Tribunal in the case of Rakesh Singh (Supra) we are of the considered view that the assessee should be allowed the claim of depreciation u/s.32 of the Act to the tune of amount Rs. 2,72,51,521. 15. In the result, the appeal by the assessee is allowed. Pronounced in the open court on this 21st day of Oct ..... X X X X Extracts X X X X X X X X Extracts X X X X
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