-1- IN INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH AHMEDABAD Before S/Shri Mahavir Singh, JM and D.C.Agrawal, AM IT(SS)A No.213/Ahd/2004 Block period ending on 20.09.2001. B. G. Education Trust, VIP Vs. Asstt. CIT, Cen. Cir.2, Road, Baroda. Baroda. (Appellant) (Respondent) .. Appellant by :- Shri Bhavin Marfatia, AR Respondent by:- Shri R. K. Dhanesta, Sr.DR ORDER Per D.C. Agrawal, Accountant Member. This is appeal filed by assessee raising following grounds :- (1) ld. CIT(A) erred in fact and in law in rejecting contention of appellant that AO has erred in fact and in law in invoking provisions of Chapter XIVB of Income- tax Act, 1961 (the Act) by virtue of notice u/s 158BC which is defective in its form and contents. It is most respectfully submitted that notice issued u/s 158BC of Act is defective in its form and contents and therefore entire proceedings under Chapter XIV B initiated by defective notice is void ab initio and it may be so held and assessment be annulled. (2) ld. CIT(A) erred in fact and in law in not appreciating fact that AO had made additions to undisclosed income of appellant without verifying whether income sought to be added is included and is part of books of accounts maintained in normal course of business and no IT(SS)A No.213/Ahd/2007 Block Period ending on 20.09.2001 evidence was detected during course of search to point out any discrepancy in same. (3) ld. CIT(A) erred in fact and in law in confirming addition of Rs.7,79,752/- made by AO by denying exemption u/s 10(23C) of Income-tax Act, 1961 for Asst. Years 1999-00 and 2000-01. (4) ld. CIT(A) erred in fact and in law in confirming action of AO in charging interest u/s 158BFA(1) of I.T. Act, 1961. 2. In addition, assessee raised following additional ground and prayed that it should be admitted, as it is pure legal question: Whether prejudice to Gr.No.3 ld. AO erred in fact and in law in not allowing depreciation to appellant on income assessed after disallowing exemption u/s 10(23C) of IT Act, 1961 despite fact that it is legally allowable under Act. 3. We have heard parties and after careful considering arguments and also decision of Hon. Supreme Court in case of National Thermal Power Co. Ltd. vs. CIT (1998) 229 ITR 383 (SC), we admit additional ground. 4. ld. AR did not press any other grounds originally taken by him and hence they are treated as rejected. 5. Regarding additional ground ld. AR submitted that once income is computed as per provisions of section 28 to 43D as business income depreciation should be allowed as per Rules. 6. After considering rival submissions we restore matter to file of AO to consider to allow depreciation as per rules because once income is computed under head business as per provisions of section 28 to 43D depreciation admissible as per section 32 and relevant rules 2 IT(SS)A No.213/Ahd/2007 Block Period ending on 20.09.2001 should be allowed. As result appeal filed by assessee is partly allowed but for statistical purposes. 7. In result, appeal filed by assessee is partly allowed but for statistical purposes. Order was pronounced in open Court on 28.1.11. Sd/- Sd/- (Mahavir Singh) (D.C. Agrawal) Judicial Member Accountant Member Ahmedabad, Dated : 28.1.11. Mahata/- Copy of Order forwarded to:- 1. Assessee. 2. Revenue. 3. CIT(Appeals)- 4. CIT concerns. 5. DR, ITAT, Ahmedabad 6. Guard File. BY ORDER, Deputy/Asstt.Registrar ITAT, Ahmedabad 1.Date of dictation 20/1/2011 2.Date on which typed draft is placed before Dictating 20/1/ 2011 Member .Other Member . 3.Date on which approved draft comes to Sr.P.S./P.S . 4.Date on which fair order is placed before Dictating Member for pronouncement .. 5.Date on which fair order comes back to Sr.P.S./P.S 6.Date on which file goes to Bench Clerk .. 7.Date on which file goes to Head Clerk . 8.The date on which file goes to Asstt. Registrar for signature on order 9.Date of Despatch of Order .. 3 B G Education Trust v. ACIT.- CENT.Circle-2