TMI Blog2003 (5) TMI 147X X X X Extracts X X X X X X X X Extracts X X X X ..... ied the credit availed by the assessee under Rule 57Q of the duty paid on capital goods under the provisions of the Income Tax Act and thus contravened the express provisions of Rule 57T. The Commissioner also imposed penalty. The assessee appealed this order to the Tribunal. The Tribunal in its orders passed on 14-8-2001 disposing of the appeal, had noted the contentions of the assessee that alth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epreciation for income tax. 2. The Tribunal accepted that the mere fact that the assessee had claimed depreciation of the amount of duty taken as Modvat credit would not by itself result in the Modvat credit attract the provisions of sub-rule (5) of Rule 57R prohibiting it to be taken, depreciation is claimed for the Income Tax Act. It said that such a practice would result in the assessee being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cing from 1996-1997. It had also produced a certificate dated 18-3-2002 issued by the Jurisdictional Income Tax Officer certifying for the assessment years 1996-97 and 1997-98, that "the claim of depreciation is made by the assessee after deducting the excise Modvat claim." It had produced an assessment order passed by the additional officer of income tax for the assessment years 1998-99. The depr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her two years are concerned, the return of the assessee itself would indicate that no depreciation had been claimed. We do not see how the fact that assessment has not been finalised has any bearing on the issue. We do not think that the income tax authorities would so assess the assessee's return as to give it relief in taxation that it did not claim. This is all the more so in view of the fact t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ax purpose on the Modvat portion of the capital goods in question. The remaining portion of the Commissioner's order deals with the claim in the alternative made by the appellant. Since we find that the appeal succeeds on its main contention, it is not necessary for us to address these aspects. 5. The appeal is accordingly allowed and the impugned order set aside. - - TaxTMI - TMITax - C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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