Judgment:
This appeal is preferred by the assessee against the order of the Commissioner (Appeals) passed under section 263 of the Act for the assessment year 1993-94.
The order of the Commissioner is assailed by the assessee on the ground that he has erred in holding that the assessment order is erroneous and prejudicial of the interests of the revenue for the reason that without examining the claim of the assessee with regard to the issue of status and 100 per cent depreciation on centering plates, the assessing officer has allowed the claim of the assessee.
The learned counsel for the assessee has submitted that during the course of assessment the assessing officer has raised a specific query with regard to the registration of the firm and depreciation on centering plates and the queries were duly replied to by the assessee along with the material evidence. Having satisfied with the reply to the queries and the material available on record the assessing officer allowed registration of firms and granted 100 per cent depreciation on centering plates. In support of his contention the learned counsel has invited our attention to the queries raised by the assessing officer and the reply of the assessee along with the evidence appearing at pp.
16 to 23 of the compilation of the assessee with the submission that once the assessing officer has adjudicated the issue after due application of mind, his finding cannot be revised under section 263 of the Act for the simple reason that the Commissioner is not aggrieved with the findings of the assessing officer. He further invited our attention to the assessment order in which the assessing officer has made specific discussion with regard to the status of the firm. More so, non-filing of a certified copy along with the return of income is merely a procedural irrgularity which can be rectified by filing a certified copy during the course of assessment proceedings. In support of his contention the learned counsel for the assessee has invited our attention to the Tax Compendium at p. 34-C.59 in which it has been said that omission to file a certified copy of the instrument of partnership along with return of income is, however, a procedural irregularity and if the assessee happens to discover the same before the completion of the assessment, he can file the same with the assessing officer. Mr.
Sachdeva, the learned counsel for the assessee, further submitted that it is not necessary for the assessing officer to discuss each and every claim of the assessee on which he was satisfied with the explanation of the assessee. As such, for the reason that the assessing officer did not discuss a particular claim of the assessee in the assessment order, the same cannot be revised under section 263 of the Act. In support of the contention, he relied upon the following judgments : (i) Harijan Evam Nirbal Varg Avas Nigam Ltd. v. CIT (1996) 131 CTR (All) 178; (iii) CIT v. Shri Govindram Seksariya Charity Trust (1987) 166 ITR 580 (MP); and The learned Departmental Representative, on the other hand, submitted that the claim of the assessee with regard to 100 per cent depreciation on steel centering plates was not properly examined by the assessing officer while allowing the claim of the assessee. Whatever assessee stated before the assessing officer, it was accepted by him without applying his mind to the fact that one single centering plate did not constitute plant and machinery; rather all the plates taken together may constitute plant and machinery on which depreciation can be allowed. Moreover, before allowing depreciation on any plant and machinery the assessing officer must satisfy himself with the functional test of that plant and machinery in which respect the depreciation is being claimed. He further invited our attention to the judgment of the jurisdictional High Court in the case of CIT v.Singhania Enterprises (1998) 234 ITR 822 (MP) in which their Lordships have remanded the matter back to the Tribunal on the identical issue inasmuch as none of the lower authorities had examined the factual aspect whether each plate of centering material can constitute a plant? It was further observed by their Lordships that no material to determine the said question was placed before the lower authorities on behalf of the assessee. In this case also the assessing officer has allowed the claim of the assessee without having examined the issue whether an individual centering plate constitutes plant and machinery and is entitled to 100 per cent depreciation. He further contended that the Commissioner is within his powers to revise the order of the assessing officer on a debatable issue if he is satisfied that the order of the assessing officer is erroneous and prejudicial to the interests of revenue. If the action of the Commissioner is examined in the aforesaid proposition of law laid down by various judicial pronouncements, one would find that the Commissioner has rightly exercised his powers under section 263 of the Act.
On consideration of rival submissions and from a careful perusal of record we find that the issue of status of the assessee was duly examined by the assessing officer during the course of assessment proceedings. It is obvious from record that the assessing officer raised the specific query with regard to non-filing of certified copy of the partnership deed and in response to that a certified copy of the partnership deed duly certified by the partners was filed during the course of assessment proceedings. A specific observation of the assessing officer in this regard is evident from the assessment order.
It has been repeatedly held that omission of filing a certified copy of the partnership deed along with the return of income is only a procedural irregularity and the same can be rectified by filing a certified copy before the completion of assessment. Since the defect pointed out by the assessing officer has been rectified during the course of assessment proceedings, the findings of the assessing officer allowing the registration cannot be termed as erroneous and prejudicial to the interests of the revenue. We, therefore, vacate the order of the Commissioner on this count.
With regard to the other ground of 100 per cent depreciation on centering plate, we do not find any specific discussion in the assessment order. An oblique reference was made while allowing the claim of depreciation to the assessee. Even though the reply to the queries filed before the assessing officer nothing has been placed on record that individual centering plate costing below Rs. 5,000 constitutes plant and machinery and is entitled to 100 per cent depreciation. It is manifestly clear from record that depreciation on centering plate was claimed by the assessee along with the depreciation on scooters. The individual claim of centering plate was neither examined by the assessing officer nor raised by the assessee during the course of assessment proceedings. If any claim of the assessee is not free from doubt, it should have been examined by the assessing officer after seeking proper explanation from the assessee and his observation should be recorded in the assessment order. Nothing has been brought to our notice that the controversy with regard to 100 per cent depreciation on individual centering plates costing below Rs. 5,000 has been resolved by any judicial pronouncement till date. We have also examined the judgment of the Gujarat High Court in the case of CIT v.M.M. Khambhatwala (1992) 198 ITR 144 (Guj) in which their Lordships have held that the Commissioner can exercise his powers even where the issue is debatable.
Taking into account the totality of the facts of the case in the light of the aforesaid discussion, we are of the view that the finding of the assessing officer with regard to depreciation on centering plate is erroneous and prejudicial to the interests of revenue and the Commissioner was justified in setting aside the order of the assessing officer on this count with the direction to reframe the assessment in the light of the relevant provisions of law. We, therefore, uphold the order of the Commissioner on this count.