TMI Blog2006 (9) TMI 345X X X X Extracts X X X X X X X X Extracts X X X X ..... for depreciation was expressly withdrawn by filing revised return. In doing so, the CIT(A) erred, inter alia, in holding that Explanation 5 to section 32 of the I.T. Act, 1961 ( the Act ) is retrospective in nature and also in interpreting wrongly the decision of the Hon ble Supreme Court in the case of Mahendra Mills Ltd. (243 ITR 56)". The Ld. Counsel for the assessee submitted that CIT(A) has erred in upholding the order of the Assessing Officer in forcibly granting depreciation to the assessee although the claim of depreciation was expressly withdrawn by the assessee by filing a revised return. He submitted that the Special Bench decision of the Ahmedabad Tribunal in Vahid Paper Converters v. ITO [2006] 98 ITD 165 (Ahd.) is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciation claimed by it in its revised return filed by the assessee, as is evident from page-1 of the assessment order. He submitted that the assessee cannot file a revised return merely to withdraw its claim of depreciation allowance and has relied on number of decisions in support of his submissions in CIT v. Andhra Cotton Mills Ltd. [1996] 219 ITR 404 (AP), CIT v. Southern Petro Chemical Industries Corpn. Ltd. (No. 2) [1998] 233 ITR 400 (Mad.), IAC v. Chenaux Ltd. [1986] 16 ITD 89 (Bom.). He also relied on the commentary of Pithisaria and Chaturvedy pages 4639 and 4640 in support of his argument. He also relied on the decision in CIT v. Girischandran Haridas [1992] 196 ITR 833 (Ker.). The second submission made by the Ld. D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, which is though allowable but not claimed in the return in normal computation of income has to be allowed while computing the deduction under Chapter VI-A viz. the sections 80HH, 80-IA, 80-IB etc. of an industrial undertaking. The case of the assessee before us is not that of a claim of deduction under Chapter VI-A of the Act and accordingly the ratio of decision of the Special Bench of the Tribunal is not applicable to the facts of the case. In the case of Piramal Health Care Ltd. [IT Appeal No. 4298 (Mum.) of 2001 dated 21-2-2005] for the assessment year 1996-97, the Mumbai Tribunal decided that the Assessing Officer cannot thrust depreciation allowance on the assessee when the same is not claimed by the assessee and has followed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s case, the assessee has filed a revised return specifically withdrawing claim of depreciation made earlier by it. Hon ble Madras High Court held that the Supreme Court decision in the case of CIT v. Mahendra Mills [2000] 243 ITR 56 1 held that if, in the revised return filed by the assessee, the assessee had withdrawn the claim for depreciation made in the original return, then the assessment based on the revised return without considering the claim for depreciation would be a proper assessment, as the privilege of claiming depreciation could not be converted into a disadvantage and the option could not become an obligation. Though after that judgment Explanation 5 was inserted in section 32(1) of the I.T. Act, 1961, declaring that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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