THE ACIT, Circle-4, Ahmedabad V. M/S, GHCL Limited, Ahmedabad

ITA 830/AHD/2008

• Counselvise Citation: 83020514 RSA 2008
• Duration Of Justice: 7 year(s) 6 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 23-09-2015
• Assessment Year: 2004-2005
• Appeal Filed On: 05-03-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R I PATEL
• Assessee Lawyers: S N SOPARKAR
• Keywords: Capital asset; Depreciation; Capital receipt
• Section: 143(3); 80HHC; 12; 2

Judgement Text

ITA NO S . 830, 2508/AHD/2008 & 836/ AHD/ 20 1 3 ASSESSMENT YEAR S : 2 0 0 4 - 05, 20 05 - 06 & 2008 - 09 PAGE 1 OF 9 IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH, AHMEDABAD [CORAM: PRAMOD KUMAR AM AND KUL BHARAT JM] ITA NO S . 83 0 & 2508/ AHD / 2 0 08 ASSESSMENT YEAR S : 20 0 4 - 05 & 2005 - 06 ASSTT. COMMISSIONER OF INCOME TAX ....... .. . ..... APPELLANT CIRCLE - 4 , AHMEDABAD . VS. G HCL LIMI T ED .... .................. .... .. RESPONDENT GHCL HOUSE, SWASTIK SOCIETY, NAVRANGPURA AHMEDABAD. [ PAN A AACG 5609 C ] ITA NO. 836/AHD/2013 ASSESSMENT YEAR: 2008 - 09 GHCL LIMITED, ....... .. . .....APPELLANT GHCL HOUSE, OPP. PUNJABI HALL, NAVRANGPURA, AHMEDABAD. [ PAN AAACG 5609 C] VS. DY. COMMISSIONER OF INCOME TAX .... .................. .... .. RESPONDENT CIRCLE - 4, AHMEDABAD. APPEARANCES BY: R.I. PATEL FOR THE REVENUE S.N. SOPARKAR FOR THE ASSESSEE DA TE OF CONCLUDING THE HEARING : SEPTEMBER 23 RD , 201 5 DATE OF PRONOUNCING THE ORDER : SEPTEMBER 30 TH , 2015 O R D E R PER PRAMOD KUMAR AM: ITA NO S . 830, 2508/AHD/2008 & 836/ AHD/ 20 1 3 ASSESSMENT YEAR S : 2 0 0 4 - 05, 20 05 - 06 & 2008 - 09 PAGE 2 OF 9 1. THESE THREE APPEALS PERTAIN TO THE SAME ASSESSEE, INVOLVE SOME COMMON ISSUES AND WERE HEARD TOGETHER. AS A MATTER OF CONVENIENCE , THEREFORE, ALL THE THREE APPEALS ARE BEING DISPOSED OF BY THI S CONSOLIDATED ORDER 2. WE WILL FIRST TAKE UP ITA NO.830/AHD/2008. THIS APPEAL IS DIRECTED AGAINST CIT(A) S ORDER DATED 17 TH DECEMBER, 2007 FOR THE ASSESSMENT YEAR 2004 - 05. 3. ON THE FIRST GROUND OF APPEAL, THE ASSESSING OFFICER HAS RAISED THE FOLLOWING GRIEVANCE: - 1. THE LD . CIT ( A ) ERRED IN LAW AND ON THE FACTS OF THE CASE IN DIRE C TING THE A.O. NOT TO INCLUDE EXCISE DUTY A ND SALES TAX IN THE TOTAL TURNOVER WHILE COMPUTING DEDU CTION U/S 80HHC 4. LEARNED REPRESENTATIVES FAIRLY AGREE THAT THIS ISSUE IS NOW COVERED, IN FAVOUR OF THE ASSESSEE, BY HON BLE SUPREME COURT S JUDGEMENT IN THE C A SE OF CIT VS. LAXMI MACHINE WORKS (290 ITR 667). GRIEVANCE OF THE ASSESSING OFFICER , THEREF ORE, LACKS LEGALLY SUSTAINABLE MERITS. 5. GROUND NO.1 IS THUS DISMISSED . 6. IN THE SECOND GROUND OF APPEAL, THE ASSESSING OFFICER HAS RAISED THE FOLLOWING GRIEVANCE: - 2 . THE LD . CIT ( A ) ERRED IN LAW AND ON THE FACTS OF THE CASE IN DIRE C TING THAT A PA RT FROM INDIRECT EXPENSE OF RS.13.13 CRORES ALREADY CONSIDERED BY THE ASSESSEE FOR PROPORTIONATE ALLOCATION, ONLY AUDITOR S EXPENSES OF RS.15.46 LAKHS NEED TO BE ALLOCATED PROPORTIONATELY AND DIRECTING THE A.O. TO REWORK THE INDIRECT EXPENSES FOR EXPORT OF TRADIN G GOODS. ITA NO S . 830, 2508/AHD/2008 & 836/ AHD/ 20 1 3 ASSESSMENT YEAR S : 2 0 0 4 - 05, 20 05 - 06 & 2008 - 09 PAGE 3 OF 9 7. LEARNED REPRESENTATIVES FAIRLY AGREE THAT THIS ISSUE IS ALSO NOW COVERED , IN FAVOUR OF THE ASSESSEE, BY ORDER DATED 13 TH NOVEMBER, 2014 IN ASSESSEE S OWN CASE FOR THE ASSESSMENT YEAR 2001 - 02. VIDE THIS ORDER , THE CO - ORDINATE BENCH HAS HELD A S FOLLOWS : - 4.1 MATTER WAS CARRIED BEFORE THE FIRST APPELLATE AUTHORITY, WHEREIN VARIOUS SUBMISSIONS MADE ON BEHALF OF ASSESSEE. HAVING CONSIDERED THE SAME, CIT(A) DIRECTED THE ASSESSING OFFICER THAT APART FROM EXPENSES OF RS.1,10,79,552/ - ALREADY CONSI DERED BY ASSESSEE FOR PROPORTIONATE ALLOCATION, ONLY AUDITOR S EXPENSES OF RS. 17,27,437/ - NEED TO BE ALLOCATED PROPORTIONATELY AND DIRECTED THE ASSESSING OFFICER TO REWORK THE INDIRECT EXPENSES FOR EXPORT OF TRADING GOODS. IT WAS FOUND THAT ASSESSEE HAD A LREADY TAKEN INTO ACCOUNT ADMINISTRATIVE MISCELLANEOUS EXPENSES OF RS.1,10,79,522/ - WHICH HAVE BEEN ALLOCATED PROPORTIONATELY AS INDIRECT COST FOR EXPORT OF TRADING GOODS, TELEPHONE AND FAX EXPENSES OF RS.60,60,926/ - , PRINTING AND STATIONERY EXPENSES OF RS .14,53,189/ - , ELECTRICITY CHARGES OF OFFICE OF RS.27,99,095/ - , BUSINESS PROMOTION EXPENSES OF RS. 3,29,364/ - , BOOKS AND PERIODICAL EXPENSES OF RS.1,81,253/ - , NEWSPAPER AND MAGAZINE EXPENSES OF RS.1,35,695/ - AND RENT OF RS.1,20,000/ - . ASSESSEE SUBMITTED THA T AT DELHI BRANCH THE EXPORT OF TRADING GOODS I.E. YARN WAS CARRIED OUT AND ONLY ONE PERSON WAS ENGAGED AND THE CLEARING AND FORWARDING WAS DONE THROUGH AN AGENT. THE CONNECTED SALARY EXPENSES ALLOCATED BY THE APPELLANT WAS OF RS.2 LAKHS AND RENT, RATES AN D TAXES OF DELHI OFFICE OF RS.1.20 LAKHS ATTRIBUTABLE TO TRADING OF EXPORT GOODS HAVE BEEN CONSIDERED. ASSESSEE HAD CONSIDERED CLEARING AND FORWARDING EXPENSES OF RS.16 LAKHS HAS BEEN DIRECTLY RELATED TO TRADING EXPORT. THE MAJOR ADMINISTRATIVE EXPENSES OF MODEM AND V SAT EXPENSES OF RS.40.48 LAKHS ARE RELATED TO SODA ASH MANUFACTURING. SIMILARLY IT WAS CONTENDED ON BEHALF OF ASSESSEE THAT ENTIRE TRAVELING EXPENSES OF RS.1,62,56,816/ - WAS FOR SODA ASH MANUFACTURING. LEASE RENT AND RENTED HOUSE EXPENSES WAS NOT FOR TRADING EXPORT, LEGAL AND PROFESSIONAL EXPENSES OF RS.2,93,55,772/ - HAVE BEEN INCURRED COMPLETELY FOR SODA ASH. HOWEVER PAYMENT TO AUDITORS OF RS.17,27,437/ - NEEDS TO BE ALLOCATED PROPORTIONATELY FOR EXPORT OF MANUFACTURED GOODS AND TRADING EXPORT IN ADDITION TO RS.1.10 CRORES. THE STAFF RECRUITMENT EXPENSES OF RS.9.18 LAKHS WERE ENTIRELY FOR SODA ASH MANUFACTURING. IN THIS BACKGROUND, CIT(A) OBSERVED THAT APART FROM EXPENSES OF RS.1,10,79,522/ - , AUDITOR S EXPENSES OF RS.17,27,437/ - NEED TO BE ALLOC ATED PROPORTIONATELY WHICH MAKES TOTAL INCOME OF RS.1,28,06,959/ - FOR ALLOCATION. ACCORDINGLY, ASSESSING OFFICER WAS DIRECTED TO REWORK THE INDIRECT EXPENSES FOR EXPORT OF TRADING GOODS. IN VIEW OF THIS, ORDER OF THE CIT(A), ON THIS ISSUE IS UPHELD. 8. L EARNED DEPARTMENTAL REPRESENTATIVE, HOWEVER, RELIED ON THE STAND OF THE ASSESSING OFFICER. 9. W E SEE NO REASONS TO TAKE ANY O T HER VIEW OF THE MATTER THAN THE VIEW SO TAKEN B Y THE CO - ORDINATE BENCH . THIS IS PRECISELY WHAT THE LD . C I T(A) HAS HELD IN THIS C AS E . WE, ITA NO S . 830, 2508/AHD/2008 & 836/ AHD/ 20 1 3 ASSESSMENT YEAR S : 2 0 0 4 - 05, 20 05 - 06 & 2008 - 09 PAGE 4 OF 9 THER E FORE, APPROVE THE RELIEF GRANTED BY THE LD . CIT(A) ON THIS ISSUE AS WELL, AND DECLINE TO INTERFERE IN THE MATTER. 10. GROUND NO.2 IS ALSO THUS DISMISSED. 11. ON GROUND NO.3, THE ASSESSING OFFICER HAS RAISED THE FOLLOWING GRIEVANCE: - 3 . THE LD . CIT ( A ) ERRED IN LAW AND ON FACTS OF THE CASE IN DELETING THE DISALLOWANCE OF EXCESS CLAIM OF DEPRECIATION AT RS.44,80,163/ - , ON ACCOUNT OF REDUCING THE FOREIGN EXCHANGE FLUCTUATION GAIN OF RS.1,79,20,653/ - FROM THE WDV OF PLANT AND MACHINERY IN VIEW OF THE PROVISIONS OF SECTION 43(1). 12. SO FAR AS THIS GROUND OF APPEAL IS CONCERNED, SOME MATERIAL FACTS WILL HAVE TO BE TAKEN NOTE OF. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER NOTED THAT THE ASSESSEE HAS EARNED FOREIGN EXCHANG E FLUCTUATION GAIN OF RS.1,79,20,653/ - ON FOREIGN EXCHANGE LOAN BORROWED TO ACQUIRE INDIGENOUS PLANT AND MACHINERY BUT HAS NOT REDUCED THE SAME FROM WRITTEN DOWN VALUE OF THE PLANT AND MACHINERY, AS, ACCORDING TO THE ASSESSING OFFICER, WAS THE RE QUIREMEN T OF SECTION 43A OF THE INCOME TAX ACT. IT WAS IN THIS BACKGROUND THAT THE ASSESSING OFFICER DISALLOWED DEPRECIATION, BEING 25% AS APPLICABLE ON THE RELATED PLANT AND MACHINERY , IN RESPECT OF THIS AMOUNT OF RS.1,79,20,653/ - . AGGRIEVED, ASSESSEE CARRIED T HE MATTER IN APPEAL BEFORE THE LD . CIT(A) WHO DELETED T H IS DISALLOWANCE BY OBSERVING AS FOLLOWS : - I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS MADE AND TH E DEC ISIONS CITED BY THE LD. A.R. AN D THE OBSERVATIONS OF THE A.O. IN THE ASSESSMENT ORDER. THE APPE LLANT HAS AVAILED FOREIGN CURRENCY LOAN FROM IDBI AND EXPORT IMPORT BANK OF INDIA FOR ACQUISITION OF INDIGENOUS PLANT AND MACHINERY. THE APPELLANT HAS RECEIVED EXCHANGE FLUCTUATION GAIN OF RS.1,79,20,653/ - DURING THE RELEVANT YEAR. RELYING ON THE DECISIO N OF S.C. IN SUTLEJ COTTON MILLS LTD. CITED SUPRA, AS THE GAIN WAS IN RESPECT OF A CAPITAL ASSET IT IS CONSIDERED AS A CAPITAL RECEIPT. AS THE LOAN WAS USED FOR ACQUISITION OF CAPITAL ASSET, THE SAID TRANSACTION W A S CLEARLY ON CAPITAL ACCOUNT. IT BEING A CAPITAL RECEIPT IT IS NOT TAXABLE. THE ASSESSING OFFICER HAS NOT OBJECTED TO ITA NO S . 830, 2508/AHD/2008 & 836/ AHD/ 20 1 3 ASSESSMENT YEAR S : 2 0 0 4 - 05, 20 05 - 06 & 2008 - 09 PAGE 5 OF 9 THE TREATMENT OF THE EXCHANGE FLUCTUATION GAIN AS A CAPITAL RECEIPT, BUT HE HAS REDACTED THE EXCHANGE FLUCTUATION GAIN FROM THE COST OF FIXED ASSET AND REDUCED THE DEPRECIATION CLAIM APPLYING PROVISIONS OF SEC. 43A OF THE I.T. ACT. AS PLANT AND MACHINERY WAS NOT PURCHASED FROM A COUNTRY OUTSIDE INDIA, THE LD. A.R. HAS STRONGLY CONTENDED THAT PROVISIONS OF SEC. 43A ARE NOT APPLICABLE IN THE C A SE OF THE APPELLANT . THE A CT IS SILE NT AS TO HOW THE ADJUSTMENTS W ILL HAVE TO BE DONE WHEN ASSET IS BROUGHT FROM INDIA, AS THERE IS NO PROVISION SIMILAR TO PROVISION OF SEC. 43A. ONCE THE ASSET IS PURCHASED AND ACTUAL COST IS DETERMINED, ANY SUBSEQUENT CHANGE IN VALUE OF LOAN CANNOT ALTER T HE COST OF ASSET AS HELD BY HON BLE SUPREME COURT IN CASE OF CIT V. TATA IRON AND STEEL CO. LTD. (1998) 231 ITR 285, WHEREIN IT WAS HELD THAT AT THE TIME OF REPAYMENT OF LOAN, WHEN THERE WAS A FLUCTUATION IN THE RATE OF FOREIGN EXCHANGE AS A RESULT OF WHIC H, THE ASSESSEE HAD TO REPAY A MUCH LESSER AMOUNT THAN HE WOULD HAVE OTHERWISE PAID , THIS WAS NOT A FACTOR, WHICH COULD ALTER THE COST INCURRED BY THE ASSESSEE FOR PURCHASE OF THE ASSET. THE ASSESSEE MIGHT HAVE RAISED THE FUNDS TO PURCHASE THE ASSET BY BO RROWING BUT WHAT THE ASSESSEE HAD PAID FOR IT WAS THE PRICE OF THE ASSET. THE MANNER OR MODE OF REPAYMENT OF THE LOAN HAD NOTHING TO DO WITH THE COST OF AN ASSET ACQUIRED BY THE ASSESSEE FOR THE PURCHASE OF HIS BUSINESS. OF COURSE THE DECISION OF SC IN T ISCO 231 ITR 285 (SC) IS SUBJECT TO PROVISIONS OF SEC. 43A. BUT WHEN THE ASSET IS PURCHASED FROM INDI A AND NOT FROM ABROAD , THE PROVISIONS OF SECTION 43A CANNOT BE APPLIED. IT CANNOT BE ALSO SAID THAT PART OF COST IS MET BY SOMEBODY ELSE, SO COST SHALL B E REDUCED AS PER SECTION 43(1) AS AT THE TIME OF PURCHASE OF ASSET T HE COST WAS THE LOAN AMOUNT. THOUGH THE APPELLANT HAS REDUCED THE COST OF CAPITAL ASSET IN BOOKS OF ACCOUNTS, COURTS HAVE HELD THAT ACCOUNTING TREATMENT BY ASSESSEE WILL NOT DETERMINE TAX TREATMENT OF ANY RECEIPT OR EXPENDITURE . FOR THIS THE LD. A.R. HAS RELIED ON THE DECISIONS IN THE CASE OF TUTICORIN ALKALI CHEMICALS & FERTILIZERS LIMITED 227 ITR 172 (SC), DCIT V. CORE HEALTHCARE LTD. (251 ITR 61) (GUJ.). THOUGH SEC. 43(1) HAS 12 EXPLA NATIONS , THE SECTION DOES NOT SPECIFY A CASE LIKE THAT OF THE APPELLANT I.E. CASE OF GAIN ON FOREIGN CURRENCY LOAN ACQUIRED FOR PURCHASE OF INDIGENOUS ASSETS. PROVISIONS OF SEC. 41(1) WILL NOT APPLY AS CONTENDED BY THE A.R. AS NO DEDUCTION HAS BEEN ALLOWE D TO THE APPELLANT IN EARLIER YEARS. THE FOREIGN EXCHANGE FLUCTUATION GAIN IN THE CASE OF THE APPELLANT IS DEFINITELY A CAPITAL RECEIPT S IT WAS UTILISED FOR PURCHASE OF ASSET AND FURTHER IT CANNOT BE REDUCED FROM THE COST OF FIXED ASSETS FOR COMPUTATION OF DEPRECIATION AS THE PROVISIONS OF SECTION 43A ARE NOT APPLICABLE AS THE ASSETS HAVE BEEN PURCHASED FROM INDI A AND NOT ABROAD. ACCORDINGLY THE A.O. IS DIRECTED NOT TO REDUCE THE COST OF FIXED ASSETS FOR DEPRECIATION PURPOSE. THIS GROUND IS THUS ALLOWED . 13. WE HAVE HEARD THE RIVAL CONTENTIONS, PERUSED THE MATERIAL ON RECORD AND DULY CONSIDERED FACTS OF THE CASE IN THE LIGHT OF THE APPLICABLE LEGAL POSITION. ITA NO S . 830, 2508/AHD/2008 & 836/ AHD/ 20 1 3 ASSESSMENT YEAR S : 2 0 0 4 - 05, 20 05 - 06 & 2008 - 09 PAGE 6 OF 9 14. AS LEARNED CIT ( A ) HAS RIGHTLY HELD, THE PROVISIONS OF SECTION 43A OF THE ACT COME INTO PLAY ONLY WHEN THE ASSET IN QUESTION IS ACQUIRED FROM OUTSIDE INDIA WHEREAS, AS IS THE UNDISPUTED POSITION ON THE FACTS OF THIS CASE, TH E RELATED PLANT AND MACHINERY WA S INDIGENOUS . THERE IS A CATEGOR IC AL FINDING TO THAT EFFECT BY THE ASSESSING OFFICER HIMSELF. AS SUCH, THE PROVISIONS OF SECTION 43A OF THE ACT DO NOT COME INTO PLAY AT ALL. LEARNED DEPARTMENTAL REPRESENTATIVE COULD NOT POINT OUT ANY OTHER STATUTORY PROVISION UNDER WHICH IMPUGNED ADJUSTMENT COULD HAVE BEEN MADE. IN VIEW OF THESE DISCUS SIONS, WE SEE NO REASONS TO DISTURB THE RELIEF GRANTED BY THE LD . CIT ( A ) . WE APPROVE THE SAME A N D DECLINE TO INTERFERE IN THE MATTER. 15. GROUND NO.3 IS ALSO DISMISSED. 16. IN THE RESULT, THE APPEAL IS DISMISSED. 17. WE NOW TAKE UP ITA NO.2508/AHD/2008 . THIS APPEAL IS FILED AGAINST THE ORDER DATED 28 TH APRIL, 2008, PASSED BY THE LD . CIT ( A ) IN THE MATTER OF ASSESSMENT UNDER SECTION 143(3) OF THE ACT FOR THE ASSESSMENT YEAR 2005 - 06 . 18. IN THE FIRST GROUND OF APPEAL, THE ASSESSING OFFICER HAS RAISED THE FOLLOWING GRIEVANCE. 1 . THE LD . CIT ( A ) ERRED IN LAW AND ON THE FACTS OF THE CASE IN DIRE C TING THE ASSESSING OFFICER NOT TO REDUCE THE COST OF FIXED ASSE T S BY THE AMOUNT OF FOREIGN EXCHANGE FLUCTUATION GAIN OF RS.25,86,714/ - FOR COMPUTING DEPRECIATION, THE REBY DELETING THE DISALLOWANCE OF D43PRECIATION TO THE TUNE OF RS.6,46,678/ - . 19. LEARNED REPRESENTATIVE S FAIRLY AGREE THAT WHA T EVER WE DECIDE, ON THIS ISSUE, FOR THE ASSESSMENT YEAR 2004 - 05 WILL APPLY FOR THIS ASSESSMENT YEAR AS WELL. IN OUR ADJUDICAT ION ON THIS ISSUE FOR THE ASSESSMENT YEAR 2004 - 05 , WE HAVE REJECTED THE ITA NO S . 830, 2508/AHD/2008 & 836/ AHD/ 20 1 3 ASSESSMENT YEAR S : 2 0 0 4 - 05, 20 05 - 06 & 2008 - 09 PAGE 7 OF 9 GRIEVANCE OF THE ASSESSING OFFICER AND UPHELD THE RELIEF GRANTED BY THE LD . C IT(A). FOLLOWING THE VIEW SO TAKEN, WE UPHOLD THE IMPUGNED RELIEF GRANTED BY THE LD . CIT(A) AND DECLINE TO INTERFERE IN THE MATTER. 20. GROUND NO.1 IS THUS DISMISSED. 21. IN GROUND NO.2, THE ASSESSING OFFICER HAS RAISED THE FOLLOWING GRIEVANCE : - 2 . THE LD . CIT ( A ) ERRED IN LAW AND ON THE FACTS OF THE CASE IN DIRE C TING THE ASSESSING OFFICER TO ALLOW CONSEQUENT IAL RELIEF TO THE ASSESSEE ON ACCOUNT OF DEPRECIATION ON COMPUTER SOFTWARE OF RS.36,01,907/ - AND OF RS.18,07,640/ - ARISING OUT OF DISALLOWANCE MADE IN A.Y. 2002 - 03 IN THE CASE OF ICON DATA MANAGEMENT LTD., NOW MERGED WITH GHCL LTD., WHEN THE ISSUE IS YET T O REACH FINALITY, AS THE ORDER OF THE CIT(A) IS BEING CONTESTED BY THE ASSESSEE BEFORE TH E HON BLE ITAT. 22. LEARNED REPRESENTATIVES FAIRLY AGREE THAT THIS ISSUE IS RENDERED INFRUCTUOUS AS THE MATTER HAS BEEN DECIDED , IN FAVOUR OF THE ASSESSEE, IN THE CASE OF DCIT VS. ICON DATA MANAGEMENT LIMITED (ITA NO.2549/AHD/2007 ; ORDER DATED 30.11.2012), BY A CO - ORDINATE BENCH OF THIS TRIBUNAL. A COPY OF THE SAID ORDER WAS PLAC E D BEFORE US. THE GRIEVANCE OF THE ASSESSING OFFICER, THEREFORE, DESERVES TO BE DISMIS SED AS INFRUCTUOUS. 23. GROUND NO.2 IS THUS DISMISSED. 24. IN THE RESULT, THE APPEAL IS DISMISSED. 25. WE NOW TAKE UP ITA NO.836/AHD/2013 . THIS AP PEAL IS DIRECTED AGAINST THE LD. CIT(A) S ORDER DATED 27 TH DECEMBER, 2012, FOR THE ASSESSMENT YEAR 2008 - 09, O N THE FOLLOWING GROUND : - THE APPELLANT, BEING AGGRIEVED AGAINST APPELLATE ORDER DATED 27 TH DECEMBER, 2012 PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) VIII, ITA NO S . 830, 2508/AHD/2008 & 836/ AHD/ 20 1 3 ASSESSMENT YEAR S : 2 0 0 4 - 05, 20 05 - 06 & 2008 - 09 PAGE 8 OF 9 AHMEDABAD [ HEREINAFTER THE LEARNED CIT(A)] FOR THE CAPTIONED YEAR, PRESENTS THIS AP PEAL ON FOLLOWING AMONGST OTHER GROUNDS : 1. THE LEARNED CIT ( A ) E RRED IN LAW AND ON FACT IN CONFIRMING DISALLOWANCE OF DEPRECIATION OF RS.9,24, 877/ - BY REDUCING FOREIGN EXCHANGE FLUCTUATION GAIN OF RS.61,65,848/ - ACCRUED DURING PREVIOUS YEAR RELEVANT TO A SSESSMENT YEAR 2008 - 09, ON FOREIGN CURRENCY LOAN BORROWED TO ACQUIRE INDIGENOUS PLANT AND MACHINERY, FROM WDV ON PLANT AND MACHINERY WITHOUT APPRECIATING THE FACT THAT THE SAME AS CAPITAL RECEIPT NON EXIGIBLE TO TAX A S PER SEC . 43A/43(1) OF THE INCOME TAX ACT. 26. LEARNED REPRESENTATIVES FAIRLY AGREE THAT WHATEVER WE DECIDE, ON THIS ISSUE, FOR THE ASSESSMENT YEAR 2004 - 05 WILL APPLY FOR THIS ASSESSMENT YEAR AS WELL. IN OUR ADJUDICATION ON THIS ISSUE FOR THE ASSESSMENT YEAR 2004 - 05, WE HAVE REJECTED THE GRIEVANCE OF THE ASSESSING OFFICER AND UPHELD THE RELIEF GRANTED BY THE LD. CIT(A). FOLLOWING THE VIEW SO TAKEN, WE UPHOLD THE IMPUGNED RELIEF GRANTED BY THE LD. CIT(A) AND DECLINE TO INTERFERE IN THE MATTER. 27. IN THE RESULT , THIS APPEAL IS ALSO DISMIS SED . 28. TO SUM UP, ALL THE THREE APPEALS ARE DISMISSED. P RONOUNCED IN THE OPEN COURT ON THIS 30 TH DAY OF SEPTEMBER, 2015. SD/ - SD/ - KUL BHARAT PRAMOD KUMAR (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) AHMEDABAD , THE 30 TH DAY OF SEPTEMBER , 201 5 PBN/* ITA NO S . 830, 2508/AHD/2008 & 836/ AHD/ 20 1 3 ASSESSMENT YEAR S : 2 0 0 4 - 05, 20 05 - 06 & 2008 - 09 PAGE 9 OF 9 COPIES TO: (1) THE APPELLANT (2) THE RESPONDENT (3) COMMISSIONER (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ASSISTANT REGIS TRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD