Appeal details
Counselvise Citation
[2018] 126 COUNSELVISE.COM (IT) 0412 (ITAT-MUMBAI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
1 year(s) 5 month(s) 22 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
23-02-2018
Appeal Filed By
Department
Order Result
Dismissed
Bench Allotted
G
Assessment Year
2009-2010
Appeal Filed On
01-09-2016
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL 'G' BENCH, MUMBAI BEFORE SHRI C.N. PRASAD, JUDICIAL MEMBER AND SHRI A.L. SAINI, ACCOUNTANT MEMBER ITA NOS. 5403 & 5402/MUM/2016 (ASSESSMENT YEARS: 2009-10 & 2011-12) A C I T - 8(3)(1) ROOM NO. 614, AAYAKAR BHAVAN M.K. ROAD, MUMBAI 400020 VS. M/S. TCPL PACKAGING LTD. SHIV SMIRTI, 49 DR. A.B. ROAD WORLI, MUMBAI 400018 PAN AAACT1406E APPELLANT RESPONDENT APPELLANT BY: SHRI V. VIDYADHAR RESPONDENT BY: SHRI DINKLE HARIYA DATE OF HEARING: 22.02.2018 DATE OF PRONOUNCEMENT: 23.02.2018 O R D E R PER C.N. PRASAD, JM THESE TWO APPEALS ARE FILED BY THE REVENUE AGAINST SEPARATE ORDERS OF CIT(A)-14, MUMBAI DATED 23.06.2016 FOR ASSESSMENT Y EARS 2009-10 AND 2011-12 ARISING OUT OF ASSESSMENT ORDERS PASSED UND ER SECTION 143(3) R.W.S. 147 OF THE INCOME TAX ACT, 1961 (HEREINAFTER THE ACT) AND SECTION 143(3) OF THE ACT RESPECTIVELY. 2. THE ONLY GRIEVANCE IN BOTH THESE APPEALS OF THE REV ENUE IS THAT THE CIT(A) ERRED IN LAW IN ALLOWING ADDITIONAL DEPRECIA TION UNDER SECTION 32(1)(IIA) OF THE ACT ON NEW MACHINERY AND PLANT WH ICH HAS BEEN ACQUIRED AND INSTALLED IN THE FIRST YEAR OF INSTALLATION. 3. THE BRIEF FACTS OF THE CASE FOR A.Y. 2009-10 ARE T HAT THE ASSESSMENT WAS REOPENED BY THE AO FOR THE REASON THAT THE ASSE SSEE HAS MADE EXCESS CLAIM OF ADDITIONAL DEPRECIATION DURING THE CURRENT ASSESSMENT YEAR. IN THE REASONS RECORDED FOR REOPENING OF ASSESSMENT THE AO OBSERVED THAT THE BENEFIT OF ADDITIONAL DEPRECIATION IS AVAILABLE TO THE ASSESSEE ONLY IN THE ITA NOS. 5403 & 5402/MUM/2016 M/S. TCPL PACKAGING LTD. 2 YEAR IN WHICH THE MACHINERY IS INSTALLED AND PUT TO USE AND IF IT IS LESS THAN 180 DAYS THEN AS PER SECOND PROVISO TO SECTION 32(1) DEPRECIATION SHALL BE RESTRICTED TO 50%. THE ASSESSEE COMPANY CA N CLAIM ADDITIONAL DEPRECIATION ONLY IN THE YEAR OF INSTALLATION AND P UT TO USE THE PLANT AND MACHINERY. THE ASSESSEE CANNOT CLAIM BALANCE 50% OF ADDITIONAL DEPRECIATION IN THE SUBSEQUENT ASSESSMENT YEAR. THE REFORE, IT WAS OBSERVED BY THE AO THAT SINCE THE ASSESSEE WAS ALLO WED EXCESS ADDITIONAL DEPRECIATION TO THE EXTENT OF 50% DURING THE CURREN T ASSESSMENT YEAR THERE IS ESCAPEMENT OF INCOME. THE ASSESSEE CONTENDED BEF ORE THE AO THAT THE ADDITIONAL DEPRECIATION ON PLANT AND MACHINERY ACQU IRED AND INSTALLED AFTER 30 TH SEPTEMBER OF THE PREVIOUS YEAR IS ELIGIBLE FOR 50% DURING THE PREVIOUS YEAR IN WHICH THE PLANT AND MACHINERY WAS INSTALLED AND THE REMAINING 50% OF ADDITIONAL DEPRECIATION IS ALLOWAB LE IN THE SUBSEQUENT ASSESSMENT YEAR. THE ASSESSEE, IN SUPPORT OF ITS CO NTENTION, RELIED ON THE DECISION OF THE DELHI TRIBUNAL IN THE CASE OF DCIT VS. COSMO FILMS LTD. (139 ITD628) AND THE DECISION OF THE MUMBAI TRIBUN AL IN THE CASE OF MITC ROLLING MILLS P. LTD. VS. ACIT (ITA NO. 2789/MUM/20 12 DATED 13.05.2013). HOWEVER, THE AO RELYING ON THE DECISION OF THE CHEN NAI BENCH OF THE TRIBUNAL IN THE CASE OF CRI PUMPS PVT. LTD. VS. ACI T 34 TAXMANN.COM 123 AND THE DECISION OF THE DELHI TRIBUNAL IN THE CASE OF M/S. INTERNATIONAL CARS AND MOTORS LTD. VS. ITO HELD THAT THE ASSESSEE IS ENTITLED FOR ADDITIONAL DEPRECIATION ONLY IN THE YEAR OF INSTALL ATION AND PUT TO USE OF THE MACHINERY AND THE BALANCE 50% OF ADDITIONAL DEPRECI ATION IS NOT ALLOWABLE IN THE SUBSEQUENT ASSESSMENT YEAR. 4. ON APPEAL THE LEARNED CIT(A), FOLLOWING THE DECISIO N OF THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF MITC ROLLI NG MILLS P. LTD. (SUPRA), THE DECISIONS OF THE DELHI BENCH OF THE TRIBUNAL IN THE CASE OF COSMO FILMS LTD. (SUPRA) AND ACIT VS. SIL INVESTMENT LTD. (54 SOT 54) DIRECTED THE AO TO ALLOW 50% OF ADDITIONAL DEPRECIATION DURI NG THE CURRENT ASSESSMENT YEAR WHICH WAS NOT ALLOWED IN THE PRECED ING ASSESSMENT YEAR BECAUSE THE PLANT AND MACHINERY WAS PUT TO USE FOR LESS THAN 180 DAYS. ITA NOS. 5403 & 5402/MUM/2016 M/S. TCPL PACKAGING LTD. 3 5. BEFORE US THE LEARNED COUNSEL FOR THE ASSESSEE SUB MITTED THAT THE ISSUE IN APPEAL HAS BEEN DECIDED IN FAVOUR OF THE A SSESSEE BY THE HON'BLE MADRAS HIGH COURT IN THE CASE OF CIT VS. SHRI T.P. TEXTILES (P.) LTD. 394 ITR 483) AND THE MUMBAI COORDINATE BENCH IN THE CASE O F RASHTRIYA CHEMICALS AND FERTILIZERS LTD. VS. CIT IN ITA NO. 5 160/MUM/2014 DATED 29.06.2016. THE LEARNED COUNSEL FOR THE ASSESSEE AL SO SUPPORTED THE ORDERS OF THE CIT(A). 6. THE LEARNED D.R., ON THE OTHER HAND, VEHEMENTLY SU PPORTED THE ORDER OF THE ASSESSING OFFICER. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE AUTHORITIES BELOW AND THE DECISIONS RELIED UPON. TH E AO WHILE COMPLETING THE ASSESSMENT DISALLOWED 50% OF ADDITIONAL DEPRECI ATION WHICH WAS CLAIMED BY THE ASSESSEE DURING THE CURRENT ASSESSME NT YEAR ON THE PLANT AND MACHINERY WHICH WAS INSTALLED IN THE PRECEDING ASSESSMENT YEAR AND WAS PUT TO USE AFTER 30 TH SEPTEMBER WHEREBY IT HAS BEEN USED FOR LESS THAN 180DAYS. ACCORDING TO THE AO THE ADDITIONAL DEPRECI ATION IS ALLOWABLE ONLY IN THE YEAR OF INSTALLATION AND PUT TO USE THE MACH INERY AND SINCE THE ASSESSEE INSTALLED THE MACHINERY AFTER 30 TH SEPTEMBER AND WAS PUT TO USE FOR LESS THAN 180 DAYS THE ASSESSEE IS ENTITLED ONL Y FOR 50% OF ADDITIONAL DEPRECIATION IN THE YEAR OF INSTALLATION AND THE AS SESSEE IS NOT ENTITLED FOR THE REMAINING 50% OF ADDITIONAL DEPRECIATION IN THE SUBSEQUENT ASSESSMENT YEAR. THE LEARNED CIT(A), FOLLOWING THE DECISION OF THE COORDINATE BENCH, HELD THAT THE ASSESSEE IS ENTITLE D FOR 50% ADDITIONAL DEPRECIATION IN THE SUBSEQUENT ASSESSMENT YEAR WHIC H WAS NOT ALLOWED IN THE PRECEDING ASSESSMENT YEAR DUE TO THE ASSESSEE C OMPANY USED THE ASSETS FOR LESS THAN 180 DAYS AND ALSO THE DECISION OF THE DELHI TRIBUNAL IN THE CASE OF COSMO FILMS LTD. (SUPRA) AND SIL INVEST MENT LTD. (SUPRA). THE QUESTION OF WHETHER THE ASSESSEE IS ENTITLED FOR BA LANCE 50% OF ADDITIONAL DEPRECIATION IN THE SUBSEQUENT ASSESSMENT YEAR HAS BEEN DECIDED BY THE HON'BLE MADRAS HIGH COURT IN THE CASE OF SHRI T.P. TEXTILES (P.) LTD. (SUPRA). THE HON'BLE HIGH COURT HAS HELD THAT THE P LAIN LANGUAGE OF SECTION 32(1)(IIA) READ ALONG WITH THE RELEVANT PRO VISO WILL LEAD TO THE ITA NOS. 5403 & 5402/MUM/2016 M/S. TCPL PACKAGING LTD. 4 CONCLUSION THAT THERE IS NO LIMITATION PLACED ON TH E ASSESSEE CLAIMING 10% OF ADDITIONAL DEPRECIATION IN THE SUCCEEDING ASSESS MENT YEAR. WHILE HOLDING SO THE HON'BLE HIGH COURT OBSERVED AS UNDER : - 7.4. IN ORDER TO APPRECIATE THE ISSUE AT HAND, RELE VANT PROVISIONS OF SECTION 32 OF THE ACT, TO THE EXTENT APPLICABLE IN THE A.Y. IN ISSUE, WOULD BE REQUIRED TO BE NOTICED : 'SECTION 32 (1) IN RESPECT OF DEPRECIATION OF - (I) BUILDINGS, MACHINERY, PLANT OR FURNITURE, BEING TAN GIBLE ASSETS; (II) KNOW-HOW, PATENTS, COPYRIGHTS, TRADEMARKS, LICENCES , FRANCHISES OR ANY OTHER BUSINESS OR COMMERCIAL RIGH TS OF SIMILAR NATURE, BEING INTANGIBLE ASSETS ACQUIRED ON OR AFTER THE 1ST DAY OF APRIL, 1998, OWNED, WHOLLY OR PARTLY , BY THE ASSESSEE AND USED FOR THE PURPOSES OF THE BUSINESS OR PROFESSION, THE FOLLOWING DEDUCTIONS SHALL BE ALLOW ED - (I) IN THE CASE OF ASSETS OF AN UNDERTAKING ENGAGED IN GENERATION OR GENERATION AND DISTRIBUTION OF POWER, SUCH PERCENTAGE ON THE ACTUAL COST THEREOF TO THE ASSESS EE AS MAY BE PRESCRIBED; (II) IN THE CASE OF ANY BLOCK OF ASSETS, SUCH PERCENTAGE ON THE WRITTEN DOWN VALUE THEREOF AS MAY BE PRESCRIBED : PROVIDED .... (A) & (B).... PROVIDED FURTHER THAT WHERE AN ASSET REFERRED TO IN CLAUSE (I) OR CLAUSE (II) OR CLAUSE (IIA), AS THE CASE MAY BE, IS ACQUIR ED BY THE ASSESSEE DURING THE PREVIOUS YEAR AND IS PUT TO USE FOR THE PURPOSES OF BUSINESS OR PROFESSION FOR A PERIOD OF LESS THAN ON E HUNDRED AND EIGHTY DAYS IN THAT PREVIOUS YEAR, THE DEDUCTION UN DER THIS SUB- SECTION IN RESPECT OF SUCH ASSET SHALL BE RESTRICTE D TO FIFTY PER CENT OF THE AMOUNT CALCULATED AT THE PERCENTAGE PRESCRIBED FOR AN ASSET UNDER CLAUSE (I) OR CLAUSE (II) 1`OR CLAUSE (IIA), AS THE CASE MAY BE: PROVIDED ALSO & EXPLANATION 1 TO EXPLANATION 5 (IIA) IN THE CASE OF ANY NEW MACHINERY OR PLANT (OT HER THAN SHIPS AND AIRCRAFT), WHICH HAS BEEN ACQUIRED AND INSTALLED AF TER THE 31ST DAY OF MARCY, 2005, BY AN ASSESSEE ENGAGED IN THE BUSINESS OF MANUFACTURE OR PRODUCTION OF ANY ARTICLE OR THING OR GENERATION OR GENERATION AND DISTRIBUTION OF POWER, A FURTHER SUM EQUAL TO TWENT Y PER CENT OF THE ACTUAL COST OF SUCH MACHINERY OR PLANT SHALL BE ALL OWED AS DEDUCTION UNDER CLAUSE (II). PROVIDED ......' (EMPHASIS IS OURS) 8. PERTINENTLY, THE KARNATAKA HIGH COURT, IN A DECI SION RENDERED IN THE CASE OF CIT V. RITTAL INDIA (P.) LTD., [2016] 6 6 TAXMANN.COM 4 ITA NOS. 5403 & 5402/MUM/2016 M/S. TCPL PACKAGING LTD. 5 (KARNATAKA), HAS INTERPRETED THE AFORESAID PROVISIO N, IN PARTICULAR, THE PROVISO INCORPORATED THEREIN. THE KARNATAKE HIGH C OURT, IN THE SAID CASE, HAS COME TO THE CONCLUSION THAT ADDITIONAL DE PRECIATION GRANTED UNDER CLAUSE (IIA) OF SECTION 32(1) OF THE ACT IS F OR THE PURPOSE OF AFFORDING BENEFITS TO THE ASSESSEES AND, TO ENCOURA GE INDUSTRIALIZATION, EITHER BY SETTING UP A NEW INDUS TRIAL UNIT, OR, BY EXPANDING A NEW INDUSTRIAL UNIT, BY PURCHASING AND INSTALLING A NEW MACHINERY, OR, PLANT, AND PUTTING THE SAME TO USE F OR THE PURPOSES OF BUSINESS. 8.1. THE COURT, WENT ON TO SAY, THAT WHILE, THE PRO VISO APPEARING IN SECTION 32(1) RESTRICTS THE CLAIM OF DEPRECIATION T O 50% OF THE AMOUNT CALCULATED AT THE PERCENTAGE PRESCRIBED FOR AN ASSE T REFERRED TO IN CLAUSE (IIA), NOWHERE DOES IT RESTRICT ALLOWANCE OF THE BALANCE 50% OF THE ADDITIONAL DEPRECIATION, WHICH IN PERCENTAGE TE RMS, WOULD BE 10% IN THE SUCCEEDING A.Y. 8.2. THE RELEVANT OBSERVATIONS MADE BY THE DIVISION BENCH OF THE KARNATAKA HIGH COURT IN THE CASE OF CIT V. RITTAL I NDIA (P.) LTD., AS CONTAINED IN PARAGRAPHS 7, 8 AND 9 OF THE SAID JUDG MENT, FOR THE SAKE OF CONVENIENCE ARE EXTRACTED HEREAFTER : '..... 7. CLAUSE (IIA) OF SECTION 32(1) OF THE ACT, AS IT NOW STANDS, WAS SUBSTITUTED BY THE FINANCE ACT, 2005, APPLICABLE WI TH EFFECT FROM 01.04.2006. PRIOR TO THAT, A PROVISO TO THE SAID C LAUSE WAS THERE, WHICH PROVIDED FOR THE BENEFIT TO BE GIVEN ONLY TO A NEW INDUSTRIAL UNDERTAKING, OR ONLY WHERE A NEW INDUSTRIAL UNDERTA KING BEGINS TO MANUFACTURE OR PRODUCE DURING ANY YEAR PREVIOUS TO THE RELEVANT ASSESSMENT YEAR. 8. THE AFORESAID TWO CONDITIONS, I.E., THE UNDERTA KING ACQUIRING NEW PLANT AND MACHINERY SHOULD BE A NEW INDUSTRIAL UNDE RTAKING, OR THAT IT SHOULD BE CLAIMED IN ONE YEAR, HAVE BEEN DOWN AW AY BY SUBSTITUTING CLAUSE (IIA) WITH EFFECT FROM 01.04.20 06. THE GRANT OF ADDITIONAL DEPRECIATION, UNDER THE AFORESAID PROVIS ION, IS FOR THE BENEFIT OF THE ASSESSEE AND WITH THE PURPOSE OF ENC OURAGING INDUSTRIALIZATION, BY EITHER SETTING UP A NEW INDUS TRIAL UNIT OR BY EXPANDING THE EXISTING UNIT BY PURCHASE OF NEW PLAN T AND MACHINERY, AND PUTTING IT TO USE FOR THE PURPOSE OF BUSINESS. THE PROVISO TO CLAUSE (II) OF THE SAID SECTION MAKES IT CLEAR THAT ONLY 50% OF THE 20% WOULD BE ALLOWABLE, IF THE NEW PLANT AND MACHINERY SO ACQUIRED IS PUT TO USE FOR LESS THAN 180 DAYS IN A FINANCIAL YE AR. HOWEVER, IF NOWHERE RESTRICTS THAT THE BALANCE 10% WOULD NOT BE ALLOWED TO BE CLAIMED BY THE ASSESSEE IN THE NEXT ASSESSMENT YEAR . 9. THE LANGUAGE USED IN CLAUSE (IIA) OF THE SAID SE CTION CLEARLY PROVIDES THAT 'A FURTHER SUM EQUAL TO 20% OF THE AC TUAL COST OF SUCH MACHINERY OR PLANT SHALL BE ALLOWED AS DEDUCTION UN DER CLAUSE (II)'. THE WORD 'SHALL' USED IN THE SAID CLAUSE IS VERY SI GNIFICANT. THE BENEFIT WHICH IS TO BE GRANTED IS 20% ADDITIONAL DE PRECIATION. BY VIRTUE OF THE PROVISO REFERRED TO ABOVE, ONLY 10% C AN BE CLAIMED IN ONE YEAR, IF PLANT AND MACHINERY IS PUT TO USE FOR LESS THAN 180 DAYS IN ITA NOS. 5403 & 5402/MUM/2016 M/S. TCPL PACKAGING LTD. 6 THE SAID FINANCIAL YEAR. THIS WOULD NECESSARILY ME AN THAT THE BALANCE 10% ADDITIONAL DEDUCTION CAN BE AVAILED IN THE SUBSEQUENT ASSESSMENT YEAR, OTHERWISE THE VERY PURPOSE OF INSE RTION OF CLAUSE (IIA) WOULD BE DEFEATED BECAUSE IT PROVIDES FOR 20% DEDUCTION WHICH SHALL BE ALLOWED.....' 9. WE ARE IN RESPECTFUL AGREEMENT WITH THE VIEW TAK EN BY THE DIVISION BENCH OF THE KARNATAKA HIGH COURT, PASSED IN CIT V. RITTAL INDIA (P.) LTD. 10. ACCORDING TO US, THESE ARE PROVISIONS INCLUDED BY THE LEGISLATURE IN THE STATUTE TO GIVE A FILLIP TO NEW INDUSTRIES A S ALSO TO EXISTING INDUSTRIES, WHICH SEEK TO EXPAND ITS SWAY, BY INVES TING IN AND MAKING USE OF NEW PLANT AND MACHINERY. 10.1. THE PLAIN LANGUAGE OF SECTION 32(1)(IIA) READ ALONG WITH THE RELEVANT PROVISO WOULD HAVE US COME TO THE CONCLUSI ON THAT, THERE IS NO LIMITATION IN THE ASSESSEE CLAIMING THE BALANCE 10% OF ADDITIONAL DEPRECIATION IN THE SUCCEEDING ASSESSMENT YEAR. 10.2. AS A MATTER OF FACT, WITH EFFECT FROM 01.04.2 016, THE AMBIGUITY, IF ANY, IN THIS REGARD, IN THE MIND OF THE ASSESSIN G OFFICER, STANDS REMOVED BY VIRTUE OF THE LEGISLATURE, INCORPORATING IN THE STATUTE, THE NECESSARY CLARIFICATORY AMENDMENT. 10.3. THE AMENDMENT BROUGHT IN THE RELEVANT PROVISO OBTAINING IN SECTION 32, READS AS FOLLOWS: .... 32. (1) ...... PROVIDED ALSO THAT WHERE AN ASSET REFERRED TO IN CL AUSE (IIA) OR THE FIRST PROVISO TO CLAUSE (IIA), AS THE CASE MAY BE, IS ACQ UIRED BY THE ASSESSEE DURING THE PREVIOUS YEAR AND IS PUT TO USE FOR THE PURPOSES OF BUSINESS FOR A PERIOD OF LESS THAN ONE HUNDRED A ND EIGHTY DAYS IN THAT PREVIOUS YEAR, AND THE DEDUCTION UNDER THIS SU B-SECTION IN RESPECT OF SUCH ASSET IS RESTRICTED TO FIFTY PER CE NT OF THE AMOUNT CALCULATED AT THE PERCENTAGE PRESCRIBED FOR AN ASSE T UNDER CLAUSE (IIA)FOR THAT PREVIOUS YEAR, THEN, THE DEDUCTION FO R THE BALANCE FIFTY PER CENT OF THE AMOUNT CALCULATED AT THE PERCENTAGE PRE SCRIBED FOR SUCH ASSET UNDER CLAUSE (IIA) SHALL BE ALLOWED UNDER THI S SUB-SECTION IN THE IMMEDIATELY SUCCEEDING PREVIOUS YEAR IN RESPECT OF SUCH ASSET: ....... (EMPHASIS IS OURS) 11. WE MAY ONLY INDICATE THAT DURING THE COURSE OF THE ARGUMENTS, OUR ATTENTION WAS DRAWN TO THE 'MEMORANDUM EXPLAINING T HE PROVISIONS IN FINANCIAL BILL, 2015', WHEREBY, THE AFOREMENTION ED AMENDMENT WAS BROUGHT ABOUT. 11.1. THE RELEVANT PART OF THE MEMORANDUM IS EXTRA CTED HEREAFTER: '..... TO REMOVE THE DISCRIMINATION IN THE MATTER O F ALLOWING ADDITIONAL DEPRECIATION ON PLANT OR MACHINERY USED FOR LESS TH AN 180 DAYS AND USED FOR 180 DAYS OR MORE, IT IS PROPOSED TO PROVID E THAT THE BALANCE 50% OF THE ADDITIONAL DEPRECIATION ON NEW PLANT OR MACHINERY ACQUIRED AND USED FOR LESS THAN 180 DAYS WHICH HAS NOT BEEN ITA NOS. 5403 & 5402/MUM/2016 M/S. TCPL PACKAGING LTD. 7 ALLOWED IN THE YEAR OF ACQUISITION AND INSTALLATION OF SUCH PLANT AND MACHINERY, SHALL BE ALLOWED IN THE IMMEDIATELY SUCC EEDING PREVIOUS YEAR. THIS AMENDMENT WILL TAKE EFFECT FROM 1ST APRIL, 201 6 AND WILL, ACCORDINGLY, APPLY IN RELATION TO THE ASSESSMENT YE AR 2016-17 AND SUBSEQUENT ASSESSMENT YEARS.' 11.2. A PERUSAL OF THE EXTRACT OF THE MEMORANDUM RE LIED UPON WOULD SHOW THAT THE LEGISLATURE RECOGNISED THE FACT THAT THE MANNER IN WHICH THE REVENUE CHOSE TO INTERPRET THE PROVISION, AS IT STOOD PRIOR TO ITS AMENDMENT WOULD LEAD TO DISCRIMINATION, IN RESPECT OF PLANT AND MACHINERY, WHICH WAS USED FOR LESS THAN 180 DAYS, A S AGAINST THAT, WHICH WAS USED FOR 180 DAYS OR MORE. 11.3. IN OUR OPINION, AS INDICATED ABOVE, THE AMEND MENT IS CLARIFICATORY IN NATURE AND NOT PROSPECTIVE, AS IS SOUGHT TO BE CONTENDED BY THE REVENUE. THE MEMORANDUM CANNOT BE READ IN THE MANNER, IN WHICH, THE REVENUE HAS SOUGHT TO READ IT , WHICH IS, THAT THE AMENDMENT BROUGHT IN WOULD APPLY ONLY PROSPECTI VELY. 11.4. WE ARE, CLEARLY, OF THE VIEW THAT THE MEMORAN DUM, WHICH IS SOUGHT TO BE RELIED UPON BY THE REVENUE, ONLY CLARI FIES AS TO HOW THE UNAMENDED PROVISION HAD TO BE READ ALL ALONG. 11.5. IN ANY EVENT, IN SO FAR AS THE COURT IS CONCE RNED, IT HAS TO GO BY THE PLAIN LANGUAGE OF THE UNAMENDED PROVISION, AND THEN, COME TO A CONCLUSION IN THE MATTER. AS ALLUDED TO ABOVE, OUR VIEW, IS THAT, UPON A PLAIN READING OF THE UNAMENDED PROVISION, IT COUL D NOT BE SAID THAT THE ASSESSEE COULD NOT CLAIM BALANCE DEPRECIATION I N THE A.Y., WHICH FOLLOWS THE A.Y., IN WHICH, THE MACHINERY HAD BEEN BOUGHT AND USED, ALBEIT, FOR LESS THAN 180 DAYS. 8. AS CAN BE SEEN FROM THE ABOVE DECISION THE HON'BLE MADRAS HIGH COURT, FOLLOWING THE DECISION OF THE HON'BLE KARNAT AKA HIGH COURT IN THE CASE OF CIT VS. RITTAL INDIA (P) LTD. (380 ITR 423) AND ALSO CONSIDERING THE AMENDMENT BROUGHT IN BY WAY OF PROVISO TO SECTION 3 2(1) WHEREIN IT HAS BEEN SPECIFICALLY STATED THAT 50% OF ADDITIONAL DEP RECIATION WHICH WAS NOT ALLOWED IN THE PRECEDING ASSESSMENT YEAR SHALL BE A LLOWED IN THE SUBSEQUENT ASSESSMENT YEAR, CONCLUDED THAT THE ASSE SSEE IS ENTITLED FOR ADDITIONAL 50% DEPRECIATION IN THE ASSESSMENT YEAR WHICH FOLLOWS THE ASSESSMENT YEAR IN WHICH THE MACHINERY HAD BEEN BOU GHT AND PUT TO USE FOR LESS THAN 180 DAYS. WE ALSO FOUND THAT THE COOR DINATE BENCH IN THE CASE OF RASHTRIYA CHEMICALS AND FERTILIZERS LTD. (S UPRA) HAS TAKEN SIMILAR VIEW FOLLOWING THE DECISION OF THE THE HON'BLE KARN ATAKA HIGH COURT IN THE CASE OF CIT VS. RITTAL INDIA (P) LTD. (380 ITR 423) . RESPECTFULLY FOLLOWING THE ITA NOS. 5403 & 5402/MUM/2016 M/S. TCPL PACKAGING LTD. 8 SAID DECISIONS WE UPHOLD THE ORDER OF THE LEARNED C IT(A) AND REJECT THE GROUNDS RAISED BY THE REVENUE. 9. THE ISSUE IN APPEAL FOR A.Y. 2011-12 BEING IDENTICA L THE DECISION RENDERED BY US FOR A.Y. 2009-10 WOULD APPLY MUTATIS MUTANDIS TO THE APPEAL FOR A.Y. 2011-12. 10. IN THE RESULT, THE APPEALS FILED BY THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 23 RD FEBRUARY, 2018. SD/ - SD/ - (A.L. SAINI) (C.N. PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 23 RD FEBRUARY, 2018 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) -14, MUMBAI 4. THE CIT - 8, MUMBAI 5. THE DR, G BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.
