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TMI Blog2024 (9) TMI 740X X X X Extracts X X X X X X X X Extracts X X X X ..... s not require 'that much business premises' . This is only an incidental finding which has not impressed the Tribunal, and quite rightly so. That apart, they have also opined that there is no practical purpose to be served in making a distinction between the claim of depreciation qua retail business and land division business. The findings and conclusions of the Tribunal on identical facts and circumstances as for the present AY have been accepted by the respondent and as such, no question of law much less a substantial question of law arises in these circumstances. It is true that the respondent did not have the benefit of the order of the Tribunal dated 21.07.2006 at the time when the suo moto action u/s 263 was proposed. However, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd demonstrate the fulfilment of the twin conditions of error and prejudice causing to the revenue at the time of issuing show cause notice as well as in the passing of the revision order? 2. Whether on the facts and circumstances of the case the Tribunal is right in dismissing the appeal despite the fact that on an earlier occasion in ITA.Nos.659 and 660 of 2003 for the assessment years 1993-94 and 1994-95, the Tribunal has granted the relief of depreciation in favour of the assessee and tus modified the assessment order which form the basis for passing the present order?' 2. The appeal relates to Assessment Year (AY) 1995-96 and the substantial questions of law as above, arise from an order of the Income Tax Appellate Tribunal ('T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the business of the Land Division was very nominal when compared to the scale of the Retail Business. He has also incidentally observed that the house and other assets were not required for the business of the Land Division. 6. Based on the aforesaid incidental observations, a portion of the depreciation was disallowed. According to the Appellant, the disallowance travelled to the Tribunal by way of Income Tax Appeals in ITA.Nos.659 650 of 2003 and the issue has been answered in its favour. Unfortunately, neither party is in a position to produce a copy of that order. 7. However, the petitioner has filed a copy of a common order of the Tribunal for the years 1990-91 and 1991-92 where this very issue has been decided on 21.07.2006, in its f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Commissioner suo motu under it, is that the order of the Income-tax Officer is erroneous in so far as it is prejudicial to the interests of the Revenue. The Commissioner has to be satisfied of twin conditions, namely, (i) the order of the Assessing Officer sought to be revised is erroneous; and (ii) it is prejudicial to the interests of the Revenue. If one of them is absent - if the order of the Income-tax Officer is erroneous but is not prejudicial to the Revenue or if it is not erroneous but is prejudicial to the Revenue - recourse cannot be had to Section 263(1) of the Act.' 12. We are thus to test the impugned order on the angle of whether an error has been committed by the Assessing Authority in framing of assessment order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sing Officer has accepted the business and its income then he should have allowed the same even though he had estimated the income rejecting the book results. The learned Commissioner of Income Tax (Appeals) further referred to Central Board of Direct Taxes Circular No.29-D(XIX.14) F.No.45/239/65-IT dated 31.08.65 for the proposition that, Where it is proposed to estimate the profits and the prescribed particulars have been furnished by the assessee, the depreciation allowance should be separately worked out. In all such cases, the gross profit should be estimated and the deductions and allowances including the depreciation allowance should be separately deducted from the gross profit. In view of the aforesaid, the learned Commissioner of I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal on identical facts and circumstances as for the present AY have been accepted by the respondent and as such, no question of law much less a substantial question of law arises in these circumstances. 16. It is true that the respondent did not have the benefit of the order of the Tribunal dated 21.07.2006 at the time when the suo moto action u/s 263 was proposed. However, the Tribunal did, in 2007, while passing the impugned order. A perusal of the order of the Tribunal reveals that the 2006 order was not brought to its notice and thus the Tribunal did not have the benefit of the reasoning under that order. 17. However, while deciding the matter today, we cannot close our eyes to subsequent developments and the order of the Trib ..... X X X X Extracts X X X X X X X X Extracts X X X X
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