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TMI Blog2025 (3) TMI 151X X X X Extracts X X X X X X X X Extracts X X X X ..... f the information provided by the petitioner as well as considering the fact that the petitioner has disclosed truly and fully all the facts necessary for the assessment.
The findings of the Tribunal while rejecting the Misc. Application of the petitioner appear to be perverse. Tribunal has failed to consider that there is no failure on the part of the assessee about disclosing truly and fully all material facts necessary for the assessment and therefore, the view taken by the Tribunal is erroneous on face of the record.
Tribunal order is hereby quashed and set aside and the Misc. Application filed by the petitioner is allowed and the matter is remanded back to the Tribunal to pass a fresh de-novo order. X X X X Extracts X X X X X X X X Extracts X X X X ..... r assessment. 4.4. It was therefore submitted that the Tribunal could not have rejected the Misc. Application without considering the facts on record and coming to the conclusion that the assessee has not disclosed the fact of trial production in computation of income and therefore, there is failure on part of the petitioner to disclose fully and truly all material facts. 4.5. It was further submitted that the Tribunal has also not taken into consideration the submissions made by the petitioner on merit as the case of the petitioner is squarely covered by the decision of this Court in case of Assistant Commissioner of Income Tax versus Ashima Syntex Limted reported in 251 ITR 133 (Gujarat) as the depreciation of plant used for trial production is allowable under the provisions of the Act. 5. On the other hand, learned advocate Mr. Rudram Trivedi for the respondent relied upon the order passed by the Tribunal rejecting the Misc. Application for rectification filed by the petitioner. 6. Having heard the learned advocates for the respective parties and considering the facts of the case, it would be germane to refer to the findings of the Assessing Officer in the regular course of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal filed by the petitioner applying the second provisio to Section 147 of the Act has held as under : "3.4 I have heard the appellant's counsel and gone through the material on record. I am inclined to accept the arguments of the appellant's counsel that since the assessment has become barred by limitation, the same should be annulled. On going through the facts of the case, I find that the notice was issued beyond four years of the limitation period. I am also inclined to accept the arguments of the appellant's counsel that even if the case is not treated as time barred by considering the provisions of section 148 to 153, the second limb of the proviso is not satisfied in this case. Because there was no failure on part of the assessee to disclose fully and truly all material facts necessary for the assessment. A perusal of the record shows that the details of depreciation which have been disallowed because of trial production of MCB Plant, were filed before the assessing officer at the time of the original assessment and as such there was no reason for him to treat the same as escapement of income, which should have been because of the failure of the assessee, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the Tribunal has lost sight of the fact that in the computation statement, there is no requirement of showing that the depreciation has been claimed on machinery installed for trial production. On perusal of the Assessment Orders passed under Section 143 (3) of the Act dated 30th March, 1994 as well as the Reassessment Order dated 29.10.1999, it appears that the Assessing Officer has considered the issue of depreciation in detail on the basis of the information provided by the petitioner as well as considering the fact that the petitioner has disclosed truly and fully all the facts necessary for the assessment. 12. In view of the above, the findings of the Tribunal while rejecting the Misc. Application of the petitioner appear to be perverse, which read as under : "6. Merely that the AO in the reassessment order passed 143 (3) read with section 148 dated 29-10-1999 observed incorrectly that during the year the assessee claimed depreciation of Rs. 97,68,870/- on plant and machinery and Rs 2,22,467/- on factory building of MCB Plant of Nitro Aeromatics Division which was allowed after verification of production made Central Excise Record (copies of which were placed on record) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding of the CIT(A) that the reassessment proceedings were barred by limitation. We, accordingly, allow the ground taken by the revenue and direct the CIT (A) to decide the issue on merit." 13. From the above findings of the Tribunal, it is apparent that the Tribunal has failed to consider that there is no failure on the part of the assessee about disclosing truly and fully all material facts necessary for the assessment and therefore, the view taken by the Tribunal is erroneous on face of the record. 14. In view of the foregoing reasons, the impugned order of the Tribunal dated 25th January, 2008 is hereby quashed and set aside and the Misc. Application filed by the petitioner is allowed and the matter is remanded back to the Tribunal to pass a fresh de-novo order in the Misc. Application No. 113/Ahd/2007 arising out of the ITA No. 1708/Ahd/2001 for Assessment Year 1991-92 filed by the petitioner on merits in view of the observations. 15. The Tribunal shall pass the appropriate order in the Misc. Application within a period of three months from the date of receipt of the copy of this order as the matter pertains to the year 1991-92 in the category of the critically old matters. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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