ACIT, CHENNAI V. M/s. PMP Textiles Spinning Mills Ltd., CHENNAI

ITA 811/CHNY/2011

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 0782 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 9 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-02-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 11-02-2013
• Assessment Year: 2006-2007
• Appeal Filed On: 02-05-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: A S SRIRAMAN
• Keywords: Depreciation

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, CHENNAI BEFORE SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER AND SHRI V. DURGA RAO, JUDICIAL MEMBER I.T.A. NO. 811/MDS/2011 (ASSESSMENT YEAR : 2006-07) THE ASSISTANT COMMISSIONER OF INCOME TAX, COMPANY CIRCLE V(2), CHENNAI - 600 034 . (APPELLANT) V. M/S PMP TEXTILES SPINNING MILLS LTD., NO.235, MINT STREET, PARK TOWN, CHENNAI - 600 003. PAN : AAACP 4346 D (RESPONDENT) APPELLANT BY :SHRI ASHOK KUMAR, CIT-DR RESPONDENT BY :SHRI A.S. SRIRAMAN , ADVOCATE DATE OF HEARING : 11.02.2013 DATE OF PRONOUNCEMENT : 11.02.2013 O R D E R PER ABRAHAM P. GEORGE, ACCOUNTANT MEMBER : IN THIS APPEAL FILED BY THE REVENUE, SOLE ISSUED RAISED BY IT IS THAT CIT(APPEALS) ALLOWED CLAIM OF DEPRECIATION ON WINDMILLS MADE BY THE ASSESSEE, AT ENHANCED RATE UNDER SECTION 32(1)( I) OF INCOME-TAX ACT, 1961 (IN SHORT 'THE ACT') READ WITH RULE 5(1A) OF INCOME-TAX RULES, 1962. AS PER REVENUE, ASSESSEE HAD NOT FILE D AN OPTION MENTIONED IN SECOND PROVISO TO RULE 5(1A) BEFORE TH E DUE DATE OF I.T.A. NO. 811/MDS/11 2 FILING THE RETURN, THEREFORE, IT WAS NOT ELIGIBLE F OR CLAIMING ENHANCED RATE OF DEPRECIATION ON THE WINDMILLS. REVENUE ALS O POINTED OUT THAT THERE WAS A VIOLATION OF RULE 46A(1) BY LD. CIT(APP EALS). 2. WHEN THE MATTER CAME UP BEFORE US, LEARNED D.R. POINTED OUT THE ISSUE WAS SQUARELY COVERED BY THE DECISION OF C O-ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF K.K.S.K. LEATHER PROCESSORS (P.) LTD. V. ITO (126 ITD 215). LEARNED D.R. FAIRLY ADMITTED TH AT THE ISSUE WAS COVERED IN FAVOUR OF ASSESSEE BY THE ABOVE MENTIONE D DECISION. 3. LEARNED A.R. SUPPORTED THE ORDER OF CIT(APPEALS) . 4. WE HAVE PERUSED THE ORDERS AND HEARD THE SUBMIS SIONS. ASSESSEE WAS DENIED THE ENHANCED RATE OF DEPRECIATI ON FOR A REASON THAT IT HAD NOT FILED AN OPTION BEFORE THE LAST DAT E OF FILING ITS RETURN. WE FIND THAT THIS ISSUE COVERED IN FAVOUR OF ASSESS EE BY THE DECISION OF CO-ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE O F K.K.S.K. LEATHER PROCESSORS (P.) LTD. (SUPRA). IT IS HELD BY CO-ORD INATE BENCH OF THIS TRIBUNAL IN THE ABOVE DECISION, AS UNDER:- THE REQUIREMENT OF SECOND PROVISO TO R. 5(1A) IS SA TISFIED IF THE OPTION IS EXERCISED BEFORE THE EXPIRY OF DUE DATE O F FILING OF RETURN OF INCOME UNDER S. 139(1). THE MEANING OF THE TERM BEFORE DUE DATE SHALL BE UNDERSTOOD AS IT IS UNDERSTOOD BY A MAN OF ORDINARY PRUDENCE. BEFORE DUE DATE SIMPLY REFERS AND MEANS THAT NOT AF TER THE EXPIRY OF DUE DATE. IF THE REQUISITE ACT IS DONE BEFORE THE LAST DAY EXPIRES I.T.A. NO. 811/MDS/11 3 THEN IT WILL BE SIMPLY SAID THAT BEFORE DUE DATE. WHEN THE TIME OF FILING THE RETURN IS AVAILABLE TO THE ASSESSEE TILL THE LAST MOMENT OF THE DUE DATE THEN THE WHOLE OF THAT DAY IS AVAILABL E TO THE ASSESSEE AND DUE DATE EXPIRES ONLY WHEN THE LAST DAY IS EXPI RED. AS SUCH THE OPTION EXERCISED ON THE DUE DATE IS NOTHING BUT BEF ORE THE DUE DATE AS THE SAME IS NOT AFTER THE DUE DATE. THEREFORE T HE OPTION EXERCISED BY THE ASSESSEES ON DUE DATE BY WAY OF MA KING CLAIMS OF DEPRECIATION IN THE RETURN OF INCOME ALONG WITH AUD IT REPORT AND BOOKS OF ACCOUNT WHEREIN THE ASSESSEES HAVE ADOPTED THE R ATE AS CLAIMED IS WITHIN TIME-LIMIT PRESCRIBED UNDER SECOND PROVISO T O R. 5(1A). AS PER THE THIRD PROVISO TO R. 5(1A) WHEN AN OPTION ONCE E XERCISED SHALL BE FINAL AND SHALL APPLY TO ALL THE SUBSEQUENT ASSESSM ENT YEARS, THEN FOR THE SUBSEQUENT YEARS THERE IS NO REQUIREMENT OF EXE RCISING ANY SEPARATE OPTION. 5. AS FOR THE GROUND TAKEN BY THE REVENUE THAT THER E WAS VIOLATION OF RULE 46A, NOTHING WAS BROUGHT IN RECORD BY THE L EARNED D.R. TO SHOW WHAT WAS THE VIOLATION. WE, THEREFORE, FIND N O MERIT IN THIS APPEAL FILED BY THE REVENUE. 6. IN THE RESULT, APPEAL FILED BY THE REVENUE IS DI SMISSED. ORDER WAS PRONOUNCED IN THE COURT ON MONDAY, THE 11 TH OF FEBRUARY, 2013, AT CHENNAI. SD/- SD/- (V.DURGA RAO) (ABRAHAM P. GEORGE) JUDICIAL MEMBER ACCOUNTANT MEMBER CHENNAI, DATED THE 11 TH FEBRUARY, 2013. KRI. COPY TO: APPELLANT/RESPONDENT/CIT(A)-V, CHENNAI-34 / CIT, CHENNAI-III, CHENNAI/D.R./GUARD FILE