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2016 (5) TMI 1574 - ITAT MUMBAIRectification of mistake u/s 154 - Disallowing additional depreciation u/s. 32(iia) - assets used for less than 180 days - AO issued a rectification notice u/ s. 154 disallowing additional depreciation claimed - HELD THAT:- Section 32(1)(iia) of the Act provides that additional depreciation @ 20% shall be allowed to the assessee on the actual cost of new plant and machinery, which has been acquired after 31.03.2005. The second proviso to section 32 restricts depreciation allowance at 50% if the asset is used for less than 180 days in a previous year. There is no mention in section 32(1)(iia) that the 20% additional depreciation is allowable in first year only. Provisions of section 32(1)(iia) and second proviso to section 32 should be read and construed reasonably, liberally and purposefully. If the acquired asset is used for less than 180 days in year one than the allowable additional depreciation is restricted to 50% in the first year and balance 50% additional depreciation is allowable in subsequent year. There is no restriction vis-avis the number of assessment years over which the additional depreciation is to be allowed. The issue under consideration is also squarely covered by the order of coordinate bench in the case of SIL Investment Ltd [2012 (6) TMI 83 - ITAT DELHI] wherein it was held that additional depreciation, which was restricted in the year of purchase to the extent of 50% on the plea of machinery having been put to use for a period of less than 180 days, the balance of additional depreciation is required to be allowed in the succeeding year. In view of the above, we do not find any merit for disallowing assessee’s claim for depreciation. Nature of receipt - TUF subsidy received from Central Government under Technology Upgradation Fund Scheme (TUF) - Revenue or capital receipt - HELD THAT:- The assessee himself had offered the taxation for the said subsidy and the AO had assessed the same accordingly. It is not the case that the AO at the time of assessing income of the assessee had proceeded in violation of any statutory provision. If subsequently in a case law, the coordinate bench of the Tribunal has given a finding that such receipt is a capital receipt that cannot be form the basis to reopen/readjudicate the issue which has already attained finality. The assessee has neither agitated this issue on merits during the assessment proceedings nor by way of appeal before the CIT(A). Even the same cannot be considered as a mistake apparent on record u/s.154 proceedings, as the AO had assessed the income as offered by the assessee and while doing so he had not directly violated any statutory provision of the Act. Hence, it cannot be said to be any mistake apparent on record with regard to nature of TUF subsidy. Merely because subsequently a coordinate bench of the Tribunal has taken some view with regard to nature of TUF subsidy in case of some other assessee that itself cannot be said to be sufficient ground to readjudicate or to reconsider the already concluded assessment. If such a course would be allowed to be adopted, then, it may give rise to a number of claims for readjudication of several already concluded cases and such course will be against the principle of finality of proceedings at one stage and would violate the object and purpose of the Indian Limitation Act, 1963. In view of this, we do not find that treatment of TUF subsidy offered by assessee and accepted by the AO as revenue receipt, under the facts and circumstances of this case, was a mistake apparent on record.
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