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2016 (12) TMI 790 - GUJARAT HIGH COURTAllowability of deduction of payment of the ONGC - Held that:- We are of the view that taking into consideration the issue which was pending before the Apex Court regarding the liability to be fixed but ONGC has already consumed the gas. In that view of the matter, ONGC is required to make payment as it is a statutory body. Apart from that, it is required to be noted that the consumption of gas was the basic need for ONGC failing which the corporation could not have functioned. In that view of the matter, we are of the opinion that the Tribunal is justified in allowing deduction of payment to ONGC. In the assessee’s own case, the Assessing Officer for the assessment year 2004-05 has in the assessmnet order stated that amount is allowed on payment basis and accordingly in the year under consideration where the liability is crystallized by the order of Supreme Court, the deduction claimed on protective basis shall not be granted. Considering the decisions cited hereinabove, we are of the view that issue raised in both these appeals is required to be answered in favour of the assessee and against the revenue. Rejection of claim to allow deduction u/s 43B - payments made beyond the due dates under the relevant Acts - Held that:- The said issue is now squarely covered by the decision in the case of Commissioner of Income-tax vs. Alom Extrusions Ltd [2009 (11) TMI 27 - SUPREME COURT ] wherein observed that deletion of second proviso to Section 43B by Finance Act 2003 is retrospective and it would operate with effect from 01.04.1988. In the present case the assesee has paid the said amount beyond due dates but before due date for filing return of income. The Tribunal has relied upon various case laws wherein it is held that second proviso to Section 43B is to be applied retrospectively as the said proviso was inserted to remove hardship caused to assessee. We accordingly answer the question in favour of assessee Allowance of depreciation @100% in respect of air pollution control equipments - Held that:- The Tribunal has allowed the claim by citing the reason that the work “being” used as item no. III(2)(iv) and III(3)(iii) as illustrative in nature and not exhaustive and the context in which words are used and that all the assets functioned with main plant and integral part of plant. The said issue has now been decided in favour of the assessee by this Court in COMMISSIONER OF INCOME TAX-I, BARODA Versus ALEMBIC CHEMICAL WORKS CO. LTD [2016 (6) TMI 562 - GUJARAT HIGH COURT]. We therefore answer the said question in favour of assessee and against the revenue. Disallowance of stores and spares treating the same to be of capital expenditure - Held that:- Tribunal held that the description of items consisting of centrifugal pumps, humidity indicators, temperature controller, vaccum pump, 3-phase industrial motors, submersible pump etc and that the same falls in the category of consumable stores and spares. We are of the view that the same should be considered under the head of revenue expenditure and the Tribunal is justified in considering the same as revenue expenditure and accordingly the said question is answered in favour of assessee and against the revenue.
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