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2019 (11) TMI 876 - HC - Income TaxClaim of depreciation at higher rate - failure to file return of income (ITR) within the time limit prescribed u/s 139(1) - ITAT allowed the claim u/s 32 - condition imposed under Rule 5(1A) proviso (ii) - HELD THAT:- In the instant case, admittedly, in the return was filed on behalf of assessee, within the extended period of time provided under Section 139(4) of the Act, and the assessee has claimed depreciation. Thus, the benefit of the aforesaid decision of the Hon’ble Apex Court in the case of Commissioner of Income Tax (2000 (12) TMI 99 - SUPREME COURT) would enure to the benefit of the assessee. Rule 5(1A) proviso (ii) - It is pertinent to mention here that the Tribunal while taking into account Section 32 of the Act, has held that since Section 32 of the Act does not provide any specific provision for exercising the option within the time limit, therefore, the condition imposed in the second proviso of Rule 5(1A) of the Rules to the extent that such an option has to be exercised at the time of filing of the return under Section 139(1) of the Act is invalid cannot be upheld. It is trite law that the Tribunal is bound by the provisions of the Act and the Rules and has no power to declare any provisions of either the Act or Rules to be invalid or ultra vires. Therefore, the substantial question of law framed by this Court is answered in favour of the Revenue and it is held that the Tribunal was not correct in holding that in the absence of prescription of any time limit under Section 32 of the Act, the condition mentioned in the second proviso to Rule 5(1A) of the Rules to exercise the option with regard to depreciation at the time of filing of the return under Section 139(1) of the Act is invalid, is not correct. Impugned orders passed by the Tribunal insofar as it pertains to the finding that the second proviso to Rule 5(1A) of the Rules are ultra-vires is hereby set aside.
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