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2015 (3) TMI 263 - AT - Income TaxDepreciation on plant and machinery used for generation of the power - belated return filed - Held that:- It is apparent that Rule 5(1A) has not prescribed any particular form or procedure in the second proviso in relation to exercising of the option by the Assessee. The second proviso to Rule 5(1A) only lays down that the option has to be exercised before the due date of furnishing of return of income u/s 139(1) for A.Y 1998-99 in respect of power generating undertaking then existing and for the first assessment year in which a new undertaking begins to generate power. The Assessee claimed depreciation in its return, even though filed belatedly, but within the date as prescribed u/s 139(4) in accordance with sub-rule (1) read with Appendix-1. Rule cannot supersede the Act. U/s 32 there is no specific provision of exercising of the option within a particular time, therefore, to that extent the condition imposed under Rule 5(1A) proviso (ii), in our opinion, is invalid. We, therefore, set aside the order of CIT(A) on this issue and direct the AO to allow the depreciation to the Assessee in accordance with Appendix-1 on the items which are mentioned under column 8(ix)(d) as per the rate specified therein. - Decided in favour of assessee. Claim of deduction u/s 43B in respect of Purchase Tax payable - Held that:- In the present case even though the Assessee has filed abstract of the Industrial Policy but has not adduced any evidence or material which may prove that the purchase tax payable by the Assessee has been converted into loan and therefore the liability towards the purchase tax stand discharged before the due date of filing of the return. In the interest of justice and fair play to both the parties, we set aside the order of CIT(A) and restore this issue to the file of the AO with the direction that the AO shall look into the evidence filed by the Assessee whether the said purchase tax payable by the Assessee got converted into loan as per the Industrial Policy before the date of filing of the return by the Assessee for the impugned assessment year. In case the AO finds that the purchase tax payable by the Assessee was converted into loan under the Karnataka Government scheme before the due date of filing of the return, the deduction be allowed to the Assessee, otherwise not.- Decided in favour of assessee for statistical purposes.
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