Soma Textiles & Industries Ltd., Ahmedabad V. The Addl.CIT, Circle-8, Ahmedabad

ITA 1542/AHD/2008

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 0321 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 3 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-08-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 11-08-2010
• Assessment Year: 2002-2003
• Appeal Filed On: 05-05-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SHELLEY JINDAL
• Assessee Lawyers: M K PATEL
• Keywords: Depreciation; Additional depreciation; Revised return
• Section: 32

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C BEFORE SHRI G.D.AGRAWAL, VICE-PRESIDENT (AZ) AND SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER DATE OF HEARING : 11/08/2010 DRAFTED ON:12/08/ 2010 ITA NO.1542/AHD/2008 ASSESSMENT YEAR : 2002-03 SOMA TEXTILES & INDUSTRIES LTD. RAKHIAL RAOD AHMEDABAD 380 001 VS. THE ADDL.CIT RANGE-8 AHMEDABAD PAN/GIR NO. : AADCS 0405 R (APPELLANT) .. (RESPONDENT) APPELLANT BY : SHRI M.K.PATEL RESPONDENT BY: SHRI SHELLEY JINDAL, CIT-DR O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : THIS IS AN APPEAL AT THE BEHEST OF THE ASSESSEE W HICH HAS EMANATED FROM THE ORDER OF LEARNED CIT(APPEALS)-XIV , AHMEDABAD DATED 14/02/2008 PASSED FOR ASSESSMENT YEAR 2002-03 AND THE SOLITARY SUBSTANTIAL GROUND READS AS UNDER:- 1. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACT S IN CONFIRMING THE DISALLOWANCE OF ADDITIONAL DEPRECIATION MADE BY THE A.O. TO THE EXTENT OF RS.55,40,615/- CLAIMED @ 50% ON THE ASSETS PURCH ASED UNDER TECHNOLOGY UPGRADATION FUND SCHEME (TUFS) AS PER TH E REVISED RETURN OF INCOME FILED AND INSTEAD GRANTING DEPRECI ATION @ 25% I.E. NORMAL RATE OF DEPRECIATION WITHOUT PROPER APPRECIA TION OF THE SCHEME AND CONSIDERATION OF THE MATERIAL PLACED ON RECORD IN SUPPORT OF THE CLAIM. THAT SINCE THE ADDITIONAL DEPRECIATION HAVI NG BEEN CLAIMED IN VIEW OF THE SCHEME LAID DOWN BY THE GOVERNMENT AS P ER THE ANNOUNCEMENT OF THE GOVERNMENT OF INDIA IN FORM OF RESOLUTION OF ITA NO. 1542/AHD/2009 SOMA TEXTILES & INDUSTRIES LTD. VS. THE ACIT ASST.YEAR 2002-03 - 2 - MINISTRY OF TEXTILES, THE APPELLANT IS ENTITLED TO ADDITIONAL DEPRECIATION OF RS.55,40,615/- WHICH MAY PLEASE BE GRANTED/ALLOW ED. 2. FACTS IN BRIEF AS EMERGED FROM THE CORRESPONDING ASSESSMENT ORDER PASSED U/S.143(3) R.W.S.274 OF THE I.T. ACT, 1961 DATED 22/11/2007 WERE THAT THE ASSESSEE-COMPANY HAS CLAIMED THE DEPR ECIATION AT THE RATE OF 25% AS PER THE RETURN FILED ON PLANT AND MACHINE RY. HOWEVER, DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSEE HAS REVISED THE CLAIM AT 50%. THE ASSESSING OFFICER HAS REJECTED THE CLA IM ON THE GROUND THAT THE REVISED RETURN WAS BARRED BY LIMITATION. THE FIRST APPELLATE AUTHORITY HAS REFERRED THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF GOETZ (INDIA) LTD. REPORTED AS 284 ITR 323(SC) FOR THE PR OPOSITION THAT THE ASSESSING OFFICER HAS NO POWER TO ENTERTAIN THE CLA IM OF HIGH DEPRECIATION EXCEPT BY WAY OF A PROPER RETURN. IN HIS OPINION, ADDITIONAL BENEFIT COULD NOT BE ALLOWED BY FILING A REVISED RE TURN OF INCOME AS HELD BY THE HON'BLE SUPREME COURT, THEREFORE, ACTION OF THE ASSESSING OFFICER WAS AFFIRMED. 3. AFTER HEARING THE SUBMISSIONS OF BOTH THE SIDES, WE ARE OF THE VIEW THAT THE REVENUE AUTHORITIES HAVE NOT CORRECTLY APP RECIATED THE SAID VERDICT SPECIALLY ON ACCOUNT OF THE INSERTION OF E XPLANATION-5 TO SECTION 32 OF THE I.T. ACT, 1961 W.E.F. 01/04/2002 WHICH SA YS THAT THE PROVISIONS SHALL APPLY WHETHER OR NOT THE ASSESSEE HAS CLAIMED THE DEDUCTION IN RESPECT OF DEPRECIATION IN COMPUTING HIS TOTAL INCO ME. FURTHER, A RELIANCE HAS ALSO BEEN PLACED ON HERO HONDA FINLEAS E LTD. REPORTED AS (2008) 115 TTJ (DEL) (TM) 752, WHEREIN IT WAS HELD THAT IF THE DEDUCTION IS CLAIMED BY THE ASSESSEE DURING THE COURSE OF ASS ESSMENT PROCEEDINGS, ITA NO. 1542/AHD/2009 SOMA TEXTILES & INDUSTRIES LTD. VS. THE ACIT ASST.YEAR 2002-03 - 3 - THEN IT IS OPEN FOR THE ASSESSING OFFICER TO ENTERT AIN SUCH CLAIM. IN THE PRESENT CASE ALSO THE UNDISPUTED FACT IS THAT THE A SSESSEE HAS MADE THE CLAIM DURING THE COURSE OF ASSESSMENT PROCEEDINGS, HENCE, WE DIRECT TO ALLOW THE CLAIM. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER SIGNED, DATED AND PRONOUNCED IN THE COURT ON 13/ 08 /2010. SD/- SD/- ( G.D.AGRAWAL ) ( MUKUL KR. SHRAWAT ) VICE PRESIDENT (AZ) JUDICIAL ME MBER AHMEDABAD; DATED 13 / 08 /2010 T.C. NAIR, SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE ASSESSEE. 2. THE DEPARTMENT. 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS)-XIV, AHMEDABAD 5. THE DR, AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT.REGISTRAR), ITAT, AHMEDABAD