9911796707
TMI Blog1982 (7) TMI 141X X X X Extracts X X X X X X X X Extracts X X X X ..... om. When originally the return income of Rs. 11,600 was filed by the assessee before the ITO, no claim in respect of investment allowance was made through during the relevant accounting year, the assessee had added machinery to the tune of Rs. 1,01,799. There is no controversy about the fact that the assessee had not made any provisions of statutory reserve in the books of accounts pertaining to the year under consideration. In course of certain enquiries, the relevant books were required to produced by the assessee before the Asst. Director of Inspection (Intelligence) and the same were impounded which were ultimately sent to ITO, Roopnagar, assessing the assessee. 3. During the course of assessment proceedings, the assessee came forwar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used to have access to the books and the assessee was authorities liberty to have suitable legal remedy on that date. This is the main action of the CIT (Appeals) denying the benefit of investment allowance which is disputed though the assessee has come forward with many a ground which can some extent be treated as argumentative and in certain respects the same can be in respect of observation of the CIT (Appeals). 5. The ld. counsel for the assessee, while disputing the action of the CIT (Appeals) before us, first of narrated the facts in detail which are briefly placed above and, thereafter highlighted the situation in which, according to him, the assessee was placed by the revenue in course of assessment proceedings firstly not making ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perusal of records, we are unable to confirm the action of the CIT (Appeals). There is no controversy about the following facts: (i) That the assessee purchased new machinery worth Rs. 1,01,799 during accounting year relevant to the assessment year under consideration; (ii) That the assessee while filing return showing total income of Rs. 11,600 did not put in its claim in respect of investment allowance; (iii) That the assessee had not make any provision for statutory reserve in the books of accounts nor the same was projected in the profit and loss account and balance sheet filed with the original return; (iv) That the relevant books of accounts of the assessee were in custody of the revenue; (v) That the assessee in course ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aking the following observation in para 2 of his order. "In these circumstances, it is clear that the assessee's grievance which forms the subject matter of ground of appeal No. 3, does not arise out of the assessment order dt. 28th March, 1980, but arose on 27th March, 1980 when the ITO refused permission to the appellant to make any entries in the books of accounts. If the assessee felt aggrieved by his order of the ITO, he should have taken recourse to suitable legal remedies." 9. In the light of the above facts that the permission was sought in course of assessment proceedings, refused in course of assessment proceedings on 27th March, 1980 and assessment order having been passed on 28th March 1980, it is apparently denial of oppo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is no statutory bar that a profit and loss account once prepared, cannot be later amended. It is, therefore, open to the assessee for claiming the rebate to amend the profit and loss to create a account as required by submitted. 34(3) (a) before the assessment is completed. This view is further supported by submitted 139(5) which permits an assessee ITO file a revised return in case of discovers any omission or any wrong statement in the return originally filed by him. Therefore, in the instant case, the assessee was entitled to deduction on account of development rebate. It will not be out of place to mention that their lordship of the M.P. High Court in the said case, explaining the case of Indian Overseas Bank Ltd. vs. CIT (1970) 77 ITR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see may be eligible for investment allowance. At the time when the assessment order was made, this condition admittedly stands satisfied. Since such reserve already created before the assessment, we do not think that the ITO had any justifications to disallow the same unless there are other conditions which are not satisfied. The condition requiring creation of the reserve is the only condition which, according to authorities, has not been satisfied in this case. Explanation to s. 32A (4) no doubt allows the ITO to accept any rectification even in a subsequent year. When it is so, we are unable to appreciate rather the ultra technical stand of the authorities in claiming that even in the same year that the rectification cannot be done in th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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