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2020 (4) TMI 740 - AT - Income TaxRevision u/s 263 - depreciation on being Foreign Exchange Fluctuation u/s 43A - HELD THAT:- As inferred from the revisional order u/s.263 is different from the reasons set-out in the show-cause notice and therefore, we are of the considered view that when a ground of revision is not mentioned in the show-cause, then it cannot be made the basis of the order for the reason that assessee would have had no opportunity to meet the point. Considering the judgements relied upon by the ld.AR, we find that the ground mentioned by the CIT, while passing the order u/s.263 with regard to claiming of depreciation on account of Foreign Exchange Fluctuation was not mentioned in the show-cause notice u/s.263(1) of the Income Tax Act. Therefore, the assessee could not get opportunity to explain the point recorded at the time of passing final order. We hold that the order of ld.CIT u/s.263 qua directing the ld.AO to pass a fresh order denovo on account of claim of depreciation on account of Foreign Exchange Fluctuation is bad in law and is thus not sustainable in Law. Therefore, that portion of the order is quashed, and this ground raised by the assessee is allowed. Disallowance on account of repairs to Plant & Machinery - HELD THAT:- It is not a proviso to proviso in other words. Learned Departmental Representative further fails to dispute that the question whether or not a port terminals Jetty / Trestle is to be treated as plant and machinery is no more res integra since this tribunal’s co-ordinate bench decision in Kandla Port Trust case [2006 (4) TMI 243 - ITAT RAJKOT] has held such assets to be plant and machinery entitled for 25% rate of depreciation. Hon'ble jurisdictional high court has upheld the said view in Revenue’s tax [2016 (8) TMI 111 - GUJARAT HIGH COURT]. We therefore find no reason to accept in Revenue’s arguments seeking to treat assessee’s Jetty & Trestle as building block of assets instead of plant and machinery in all cases on merits as well. Depreciation on electric installation - HELD THAT:- We find that the issue is squarely covered in M/s.Gujarat Chemical Port Terminal Co.Ltd., Vs. DCIT, Circle-1(1)(1) [2019 (12) TMI 1294 - ITAT SURAT] opinion that assessee is eligible for depreciation @ 15% instead of 10% allowed by the ld.AO.
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