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ACiT Vs Rajesh Jhaveri Stock Brokers P. Ltd. (SC) 291 ITR 500 WCI (Madras) (P) Ltd. Vs ACiT (Mad) 324 ITR 181 ClT Vs Ravindran Prabhakar (Mad) 326 ITR 363 ITO Vs K.M. Pachiappan (Mad) 311 ITR 31 ACiT Vs Mahindra Holidays & Resorts (India) Ltd. (ITAT,SBChennai) 3 ITR (Trib) 600
b) Reasons were recorded by the A.O. before issuing the notice u/s 148 [pages 28 ITA Nos.802,803,1077,2154 & 2155/Mds/2010 10'&11 for A.Y. 2002-03 and 12 & 13 for A.Y. 2003-04 of Paper Book].

g) These documentary evidence clearly prove that the P&T a/c of the assessee company for F.Y.1995-96 to 1999-00 did not include depletion/abandonment costs as part of depreciation. From A.Y. 2000-01 onwards assessee is earning book profit and the issue of lossI unabsorbed depreciation I depletion etc. does not arise as net profit was earned after deducting all such expenditure.

h) Assessments in respect of the I.T. returns filed by assessee corresponding to F.Y. 1995-96 to 1999-00 ( A.Y. 1996-97 to 2000-01 ) has become final as on date. These assessments were completed by accepting the returned figures and no appeal was filed by assessee. Hence assessee cannot seek lateron to change I modify the figures of brought forward loss I depreciation determined for such years in the present appeal proceedings. This view was upheld by Hon'ble Supreme Court in ClT & Am. Vs Dalmia Cement (Bharat) Ltd. reported in 216 ITR 79. This was followed by jurisdictional highCourt in S.K.V. Selvaraj Vs CIT (Mad) 240 ITR 217.

i) Instead of relying on the figures as per the Profit and Loss a/c appearing in the printed Annual Accounts of the assessee company for F.Y. 1995-96 to1999-00 which were approved by the Board of directors and placed before the Annual general meeting, assessee is now relying on certain new 30 ITA Nos.802,803,1077,2154 & 2155/Mds/2010 figures. Decision of the Apex court in Apollo Tyres Vs ClT (255 ITR 273) is equally applicable for the assessee as held by ITAT Chennai bench in DClT Vs Thangavel Spinning Mills Ltc. reported in 97 ITD 262. A form can never have any effect on the interpretation or operation of the parent statute as held by the Apex Court in ClT Vs Tulsyan NEC Ltd. (330 ITR 226).

B In Malabar Industrial Co. Ltd. Vs ClT reported in 243 ITR 83 Apex Court held that when an assessment order was passed without application of mind in all perspective, it is an erroneous order. Similar view was also held in Rampyari Devi Saroagi Vs ClT (SC) 67 "ITR 84.

C. In Gee Vee Enterprises Vs Add!. CIT ( reported in 99 ITR 375 ) Delhi High court held that the ITa being not only an adjudicator but also an investigator. he cannot remain passive in the face of a return which is apparently in order but calls for further enquiry in the facts and circumstances of the case and the word 'erroneous' in s. 263 includes the failure to make such an enquiry. Similar view was held in Rajalakshmi Mills Ltd. Vs ITa (ITAT,SB-Chennai) 121 ITD 343 SRM Systems & Software Pvt. Ltd. Vs ACIT 2010-TIOL-646-HCMAD-IT Accel ICiM Frontline Ltd. Vs ClT in ITA 1597/10 - order dated 13-01-11 by ITAT Chennai Bench D. Assessee's reliance on ITAT order for A.Y. 2004-05 is misplaced as the said order was passed by IT AT only on the reasoning that in the impugned order of that appeal, CIT failed to point out what is erroneous in the assessment order [ para. 10 of IT AT order] whereas in the impugned order u/s 263 for this appeal, CIT clearly demonstrated the error in para. 3.