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Dr. Jitesh Hiralal Desai,403, Monte Rossa,90Ft. Road, Above SBI,Opp. Ganesh Mandir,Ghatkopar (E),Mumbai 400 020 Vs. C.I.T. (A)-3,R. No.440,Aayakar Bhavan,Old CGO Building,M.K. Road,Mumbai - 400020
November, 03rd 2014
                 IN THE INCOME TAX APPELLATE TRIBUNAL,
                        MUMBAI BENCH "J", MUMBAI

         BEFORE SHRI R.C. SHARMA, ACCOUNTANT MEMBER AND
                SHRI SANJAY GARG, JUDICIAL MEMBER

                                  ITA No. 5010/M/2012
                                Assessment Year: 2008-09

         Dr. Jitesh Hiralal Desai,              C.I.T. (A)-3,
         403, Monte Rossa,                      R. No.440,
         90Ft. Road, Above SBI,                 Aayakar Bhavan,
                                            Vs.
         Opp. Ganesh Mandir,                    Old CGO Building,
         Ghatkopar (E),                         M.K. Road,
         Mumbai ­ 400 020                       Mumbai - 400020
         PAN: AABPD9785A
               (Appellant)                          (Respondent)


      Assessee by                    : Shri V.H. Jariwala, A.R.
      Revenue by                     : Shri Mohammed Rizwan, D.R.

      Date of Hearing                : 21.08.2014
      Date of Pronouncement          : 29.10.2014

                                       ORDER


Per Sanjay Garg, Judicial Member:

      The present appeal has been filed by the assessee against the order dated
25.05.12 of the Commissioner of Income Tax (Appeals) [(hereinafter referred
to as CIT(A)] relevant to assessment year 2008-09 vide which the ld. CIT(A)
has confirmed the order of the Assessing Officer (hereinafter referred to as the
AO) dismissing the application of the assessee under section 154 of the Income
Tax Act (hereinafter referred to as the `Act').






2.    The facts in brief are that the assessee vide his applications dated
03.12.10 and further dated 09.1210 submitted before the AO that he had
claimed depreciation of Rs.2,04,623/- but due to software error the same could
not be claimed in the original return of income. The AO, however, rejected the
                                                                     ITA No. 5010/M/2012
                                       2                             Dr. Jitesh Hiralal Desai



contention of the assessee holding that the assessee should have filed the
revised return of income within the stipulated time for the claim of
depreciation. The said depreciation claim could not be granted to the assessee
under section 154 of the Act.

3.    In appeal, the ld. CIT(A) also held that the assessee had not claimed the
said depreciation in the return of income and even had failed to file the revised
return. He therefore upheld the order of the AO dismissing the application of
the assessee moved under section 154 of the Act. The assessee is thus in
appeal before us.

4.    The ld. A.R. of the assessee, before us, has submitted that the said claim
of depreciation could not be claimed in the original return of income due to
error in software.   The particulars of depreciation in respect of computer,
furniture and car amounting to Rs.92,859/- and further ventilator and colour
doppler amounting to Rs.1,11,764/- in respect of proprietary concern i.e.
hospital of the assessee could not be considered. He has further submitted that
the above claim could not be made in the original return of income due to
software error and which amounts to a bonafide mistake on the part of the
assessee.
On the other hand, the ld. D.R. has relied upon the findings of the lower
authorities.

5.    We have considered the rival submissions. We may find that it is not a
case where the lower authorities have held that the assessee had filed a wrong
claim or that he is not entitled to claim the depreciation in question. The lower
authorities have rejected the application of the assessee only on the ground that
the assessee should have claimed the same by way of filing a revised return. In
our view, it is not a case where the assessee has made a new claim rather, the
                                                                        ITA No. 5010/M/2012
                                           3                            Dr. Jitesh Hiralal Desai



case of the assessee is that the claim could not be entered in the e-return due to
software error. When faced with almost similar facts and circumstances, the
co-ordinate bench of the Tribunal in the case of Shrikant Real Estates (P.) Ltd.
vs. ITO (2012) 26 taxmann.com 265 (Mumbai Trib.) has held that in the
present system of e-filing of return which is totally dependent upon usage of
software, it is possible that some clerical errors may occur at the time of
entering the data in the electronic form. The return is prepared electronically
which is converted into an XML file either through the free downloaded
software provided by CBDT or by the software available in the market. In
either of the case, there is every possibility of entering incorrect data without
the expert knowledge of preparing an XML file.






6.       Under such circumstances, the co-ordinate bench of the Tribunal has
directed the AO to make the rectifications and allow the eligible claim of the
assessee. Respectfully, following the decision of the co-ordinate bench of the
Tribunal (supra), we direct the AO to consider the claim of the assessee and
allow the same, if otherwise eligible, after proper verification.

7.       In the result, the appeal of the assessee is hereby allowed.



                  Order pronounced in the open court on 29.10.2014.



          Sd/-                                                Sd/-
    (R.C. Sharma)                                        (Sanjay Garg)
ACCOUNTANT MEMBER                                    JUDICIAL MEMBER

Mumbai, Dated: 29.10.2014.
* Kishore, Sr. P.S.



Copy to: The Appellant
        The Respondent
                                                                   ITA No. 5010/M/2012
                                            4                      Dr. Jitesh Hiralal Desai



        The CIT, Concerned, Mumbai
        The CIT (A) Concerned, Mumbai
        The DR Concerned Bench
//True Copy//                           [




                                                By Order



                              Dy/Asstt. Registrar, ITAT, Mumbai.

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