TMI Blog1999 (7) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... laimed by the assessee ? For the assessment year 1979-80 : Whether, on the facts and in the circumstances of the case, the Tribunal was justified in upholding the order of the learned Commissioner of Income-tax (Appeals) directing the computation of capital gain/loss on the sale of assets either by taking into consideration the original cost of the assets or their written down value after giving effect to his appellate order (i.e., withdrawing depreciation)?" In response to a notice under section 139(2) of the Income-tax Act, 1961, the assessee filed the returns on November 30, 1978, showing loss of Rs. 7,07,39,219. Those returns were revised and the assessee filed a revised return. In that, he reduced the loss to Rs. 6,02,55,970 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen neither the assessee claimed depreciation nor the required details were furnished, can the Assessing Officer allow depreciation under section 32 of the Act ? The provisions of section 32 provide for allowance of depreciation. Any building, machinery, plant or furniture owned by the assessee, wholly or partly, for the purpose of business and used for the purposes of the business, the assessee is entitled for depreciation subject to the provisions of section 34 of the Act. The provisions of section 34 of the Act laid down certain conditions for allowance of depreciation. Rule 5AA of the Income-tax Rules, 1962, prescribes the particulars for depreciation which are necessary to be furnished for allowance of depreciation. But that has come ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been given that the assessee has not furnished the required details for allowance of depreciation under section 32. In para. 10 of the assessment order the Income-tax Officer himself has mentioned that the assessee has neither claimed the depreciation in the return nor it has furnished the prescribed particulars as required under the Act during the year. In para. 18 the Commissioner of Income-tax (Appeals) has found and observed that the undisputed facts in this case are that the appellant-company did not file the prescribed particulars for any of the three years under appeal. This finding has been confirmed by the Tribunal also. To consider when the required particulars are not before the Income-tax Officer to allow the depreciation. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... depreciation. The admitted facts in the case in hand are that necessary particulars are not furnished by the assessee which are necessary to allow the depreciation under section 32. In CIT v. Shri Someshwar Sahakari Sakhar Karkhana Ltd. [1989] 177 ITR 443, the Bombay High Court considered the issue that when the assessee has not claimed depreciation, in his revised returns, can the Assessing Officer allow the depreciation ? The Bombay High Court has held that the Income-tax Officer has no power or jurisdiction to allow the depreciation, if allowance has not been claimed nor necessary particulars are furnished. The Bombay High Court in that judgment has referred to the Board Circular No. 29D (XIX-14), dated August 31, 1965, and also d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iary company or by a subsidiary company to its holding company, or (ii) by a company to another company in a scheme of amalgamation, and the conditions specified in clause (iv) or clause (v) or, as the case may be, clause (vi) of section 47 are satisfied, then, in determining the aggregate of all deductions in respect of depreciation under this clause, account shall also be taken of the deductions in respect of depreciation allowed in the case of the company from which the asset has been transferred ; (ii) nothing in clause (i) or clause (ii) or clause (iv) or clause (v) or clause (vi) of sub-section (1) of section 32 shall be deemed to authorise the allowance for any previous year of any sum in respect of any building, machinery, pla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... necessary for computing depreciation allowance are on record, the Assessing Officer was not justified in allowing the depreciation allowance without material or without particulars required for depreciation allowance. When neither the assessee has claimed the depreciation allowance in the years under consideration nor he has furnished required particulars for deduction on account of depreciation allowance nor there was material on record before the Income-tax Officer, which is necessary to consider depreciation allowance, the Income-tax Officer was not justified in allowing the depreciation to the assessee in the assessment years 1978-79 and 1979-80. Therefore, we answer the common question in both the years "whether the Tribunal was j ..... X X X X Extracts X X X X X X X X Extracts X X X X
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