TMI Blog2006 (3) TMI 677X X X X Extracts X X X X X X X X Extracts X X X X ..... ation. The learned counsel appearing on behalf of the assessee was fair enough in stating that this issue was covered against the assessee by the decision of the Special Bench of the ITAT, Ahmedabad Bench in the case of Vahid Paper Converters v. ITO [2006] 98 ITD 165 wherein it has been held that after the amendment of section 32 and deletion of section 34 with effect from 1-4-1988, the assessee has no option regarding claiming of depreciation and the depreciation is to be compulsorily allowed if not claimed by the assessee. Respectfully following the ratio of Special Bench decision, we reject this ground of the assessee. 5. In ground No. 2, the assessee is aggrieved by the decision of the learned CIT(A) in confirming the action of the Assessing Officer whereby the Assessing Officer disallowed a sum of Rs. 3,84,080 paid to the Town Planning Authority, Silvasa, treating the same as penalty. During the course of assessment proceedings, the Assessing Officer noted that a total sum of Rs. 3,84,080 was paid by the assessee to Town Planning Authority, Silvasa which comprised of an amount of Rs. 3,74,080 towards penalty imposed by the Town Planner and Rs. 10,000 of penal interest. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und of the assessee stands rejected. 8. In ground No. 3, the issue is related to disallowance of Rs. 2,03,309 on account of delay in deposit of PF and ESIC dues. 9. Briefly stated facts relating to this ground are that during the year under consideration the assessee deposited the employer s contribution to- wards PF and ESIC amounting to Rs. 2,25,396 after the due dates and disallowed the same on suo motu . Similarly, the assessee deposited an amount of Rs. 2,03,309 pertaining to employees contribution of PF and ESIC after due dates. The employees contribution was included in the income of the assessee as per provisions of section 2( 24 )( x ) of the Act, however, since it was deposited after the due dates, no deduction under section 36(1)( va ) was allowed to the assessee and accordingly Rs. 2,03,309 were added by the Assessing Officer to the total income of the assessee. The assessee preferred an appeal before the learned CIT(A) who after considering the submissions made by the assessee and the applicable legal provisions, confirmed the action of Assessing Officer. Aggrieved by the decision of the learned CIT(A), the assessee is in appeal before us. 9A. The learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the Ld. CIT(A) legally erred in setting aside, subject to verification, the disallowance made by the Assessing Officer in respect of Modvat. 4.1 Without prejudice to the above and in the alternative, the ld. CIT(A) legally erred in not giving relief as sought for by the appellant." 12. Briefly stated facts of this ground are that during the course of assessment proceedings, the Assessing Officer noted that while comply- ing to the requirements of the provisions of section 145A introduced with effect from 1-4-1999, the assessee adjusted the value of opening stock also. The Assessing Officer was of the opinion that section 145A required the adjustment in the value of closing stock by the amount of un-utilised Modvat credit for the purposes of determining the income chargeable under the head profits and gains of the business/profession. In view of the Assessing Officer, the difference worked out by the assessee on the opening stock at Rs. 34,33,530 was not in accordance with the provisions of law and the same was added to the amount of adjustments determined by the assessee at Rs. 7,74,711. Accordingly, total disallowance at Rs. 42,08,241 was worked out. In doing so, the Asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee submitted that in principle the learned CIT(A) agreed with the contention of the assessee that the value of both opening stock and closing stock had to be modified. However, the learned CIT(A), with regard to the addition of Rs. 7,85,386 made in earlier year in respect of closing stock of that year observed to exclude the same to that extent from the value of opening stock, if the addition made in earlier year was deleted by the appellate authority and such observations were not warranted in view of the findings of ld. CIT(A) that both opening stock and closing stock were to be adjusted as per inclusive method under section 145A. The learned counsel in this regard also referred to the memorandum explaining the provisions in Finance (No. 2) Bill, 1998 as in 231 ITR (St.) 201 to show that the adjustment under section 145A had to be made both in respect of opening and closing stock. The learned counsel also referred to the language employed in the section 145A to contend that if only value of the closing stock had to be modified, the Legislature would have specifically provided for valuation of closing stock only. He also drew our attention to notes to Clauses and Memorandum expl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d CIT(A) to decide the issue in accordance with the provisions of section 145A of the Act. The learned counsel, in the rejoinder, pointed out that the decision of the Hon ble Calcutta High Court in the case of CCAP Ltd. ( supra ) was not applicable to the facts of the present case for the following reasons : -The Hon ble Calcutta High Court had not considered the language of section 254(1), which uses the word thereon . -The binding precedent of the Supreme Court in the case of Hukumchand Mills Ltd. v. CIT [1967] 63 ITR 232 was not brought to the knowledge of the Hon ble High Court, wherein it has been held that the powers of the Tribunal are to decide the points or grounds raised before it. It has been clearly laid down that the Appellate Tribunal has no power of enhancement, which the first appellate authority has. -The Hon ble Calcutta High Court had neither discussed nor distinguished the contrary settled law in the cases of CIT v. Cochin Refineries Ltd. [1988] 173 ITR 461 (Ker.) and Orissa Weavers Co-operating Spg. Mills Ltd. v. CIT [1991] 187 ITR 646 (Ori.). The Hon ble High Court had also not considered or distinguished the earlier decision of the same H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order has become final. The learned counsel further contended that issue of powers of Tribunal would come into play only when the appeal was decided against the assessee on merits. 15. We have considered the rival submissions, material on record and orders of authorities below. Admittedly, section 145A as enacted by the Finance (II) Act, 1998 with effect from assessment year 1999-2000 provides that the valuation of purchase and sale of goods and inventory for the purpose of computation of income from business or profession shall be made on the basis of method of accounting regularly employed by the assessee but this shall be subject to certain adjustments. Therefore, it is not necessary to change the method of valuation of purchase, sale and inventory regularly employed in the books of account. However, adjustments provided under section 145A would have to be made while computing the income for the purpose of preparing the return of income. The adjustments as provided under section 145A are as follows : ( a )Any tax, duty, cess or fee actually paid or incurred on inputs should be added to the cost of inputs (raw-materials, stores etc.); if not already added in the books o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pect of Excise Duty on purchases, the learned CIT(A) will adjudicate this issue afresh after giving opportunity of being heard to both sides. 15(A). Before parting with, with regard to change of value of opening stock if any required to be made on account of Modvat, it is essential to ensure that the assessee does not get double deduction on account of this Modvat. As per provisions of section 145A of the Act, the sales are also to be inclusive of Excise Duty and hence, the assessee is entitled to deduction for the amount of Excise Duty payable on sales but because of Modvat available to the assessee on account of opening stock, purchases and closing stock and since the Modvat element is added to the value of opening stock and purchases as provided in section 145A, the actual deduction allowable to the assessee on account of Excise Duty with regard to sales should be restricted to actual duty paid by assessee by excluding the Modvat element with regard to both opening stock and purchases during the year to ensure that the assessee does not get any double deduction on account of Modvat in the year of insertion of section 145A of the Act i.e. assessment year 1999-2000. The lear ..... X X X X Extracts X X X X X X X X Extracts X X X X
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