The Principal Commissioner Of Income Tax– 8 v. M/S. Tata Consulting Engineers Ltd

IN THE HIGH COURT OF JUDICATURE AT BOMBAYO.O.C.J. INCOME TAX APPEAL (IT) NO. 437 OF 2016 The Principal Commissioner of Income Tax– 8 ..Appellant Versus M/s. Tata Consulting Engineers Ltd ..Respondent ................... Mr. N.C. Mohanty for the Appellant Mr. N.C. Mohanty for the Appellant Mr. Madhur Agrawal a/w Mr. Atul Jasani for the RespondentMr. Madhur Agrawal a/w Mr. Atul Jasani for the Respondent ................... CORAM : AKIL KURESHI & M.S. SANKLECHA, JJ. DATE : NOVEMBER 19, 2018. P.C.: 1.We have heard learned counsel for the parties for finaldisposal of the Income Tax Appeal on admission stage itself. 2.The Revenue has filed this appeal challenging an order of the Income Tax Appellate Tribunal, Mumbai (“theTribunal” for short) dated 4.3.2015. Following questions arepresented for our consideration: “ A. Whether on the facts and in the circumstances of the case andin law, the Hon'ble ITAT was justified in restoring the matter back tothe file of the AO without appreciating the fact that the assessee hasneither claimed the foreseeable loss of Rs. 34,83,000/- in the returnin law, the Hon'ble ITAT was justified in restoring the matter back tothe file of the AO without appreciating the fact that the assessee hasneither claimed the foreseeable loss of Rs. 34,83,000/- in the return of income nor filed any revised return claiming the said loss? B. Whether on the facts and in the circumstances of the case andin law, the Hon'ble ITAT was justified in upholding the CIT(A)'s orderregarding deletion of addition in respect of retention money withoutappreciating the fact that the assessee has neither claimed retentionmoney of Rs. 77.21 lakhs in the return of income nor filed any revisedreturn. C. Whether on the facts and in the circumstances of the case andin law, the Hon'ble ITAT was justified in restoring the matter back tothe file of the First Appellate Authority (FAA) in respect of claim ofadditional depreciation pertains to earlier years of Rs. 1.42 croreswithout appreciating the fact that the assessee has neither claimedthe said depreciation in the return of income nor filed any revisedreturn?” 3.Learned counsel for the Revenue candidly stated that the Question B is covered against the Revenue by virtue ofthe judgment of this Court in the case of Commissioner of Income Tax Vs. Associated Cables Pvt Ltd reported in[2006] 286 ITR 596 (Bom).This question is not requiredto be considered any further. 4.Question A pertains to the Revenue's objection to theTribunal's order remanding the question of assessee's claimof foreseeable loss of Rs. 67.53 lacs. The Assessing OfÏcerhaving rejected the entire claim, the assessee carried the matter in appeal. The Commissioner of Income Tax (Appeals)granted partial relief and allowed the loss of Rs. 34.83 lacs.The Tribunal in further appeals of both the sides placed theissue back before the Assessing OfÏcer for freshconsideration. 5.The main objection of the learned counsel for theRevenue is that the assessee had raised such a claim withoutthe same being part of the return filed and without theassessee having filed a revised return. The Tribunal in thiscontext, refereed to and relied upon the judgment of thisCourt in the case of Commissioner of Income Tax Vs.Pruthvi Brokers & Shareholders P Ltd reported in[2012] 349 ITR 336 (Bom). In the said case, the DivisionBench of this Court had taken a view that the AppellateAuthorities have power to consider the claim even thoughnot made in the return. This question, therefore, is notrequired to be entertained. 6.The sole surviving question pertains to the assessee'sclaim of additional depreciation of Rs. 1.42 crores. The 5.The main objection of the learned counsel for theRevenue is that the assessee had raised such a claim withoutthe same being part of the return filed and without theassessee having filed a revised return. The Tribunal in thiscontext, refereed to and relied upon the judgment of thisCourt in the case of Commissioner of Income Tax Vs.Pruthvi Brokers & Shareholders P Ltd reported in[2012] 349 ITR 336 (Bom). In the said case, the DivisionBench of this Court had taken a view that the AppellateAuthorities have power to consider the claim even thoughnot made in the return. This question, therefore, is notrequired to be entertained. 6.The sole surviving question pertains to the assessee'sclaim of additional depreciation of Rs. 1.42 crores. The Assessing OfÏcer rejected the claim on the ground that thesame was not made in the return and no revised return wasfiled. The CIT (Appeals), however, held that the claim did notpertain to the year under consideration. In further appeal,the Tribunal remanded the issue back to the CIT (Appeals) forfresh consideration. 7.Upon perusal of the order of the Tribunal, we notice thatthere is some dichotomy in the observations made by theTribunal with respect to this issue. At one stage, the Tribunalnoted the findings of the CIT (Appeals) that the claimpertains to the Assessment Years 2004-05 and 2005-06 andnot the current year whereas at a later stage, the Tribunalreferred to the issue being not entertained by the CIT(Appeals) since the assessee had not made the claim in thereturn filed. 8.It appears that the CIT (Appeals) had rejected theassessee's claim on the ground that the same did not pertainto the year under consideration. If that be so, the Tribunalshould have given its opinion whether the CIT (Appeals) was correct in coming to such a conclusion. Mere remand to CIT(Appeals) for fresh consideration would be futile. In so far asthis question is concerned, we are, therefore, of the opinionthat the Tribunal may be requested to decide the ground ofthe assessee in his appeal. 9.The appeal filed by the Revenue is therefore, allowed inpart. The remand by the Tribunal of the issue underconsideration is reversed. The appeal of the assessee isplaced back before the Tribunal for fresh consideration onthis limited issue. We have expressed no opinion on merits.The Tribunal may decide the question independently. TheIncome Tax Appeal is disposed of. [ M.S. SANKLECHA, J. ] [ AKIL KURESHI, J ]