TMI Blog2013 (1) TMI 452X X X X Extracts X X X X X X X X Extracts X X X X ..... - Dated:- 3-9-2012 - Mrs. Chitra Venkataraman and K. Ravichandrabaabu, JJ. M.P. Senthilkumar for the Appellant. T. Ravikumar for the Respondent. JUDGMENT Mrs. Chitra Venkataraman, J. - The assessee has filed the above appeals as against the orders of the Income Tax Appellate Tribunal relating to the assessment years 1995-1996, 1996-1997, 1997-1998 and 1998-1999. 2. The substantial question of law raised in appeal Nos. 422 424 of 2006 and the first substantial question of law raised in appeal Nos.2455 2538 of 2006 are common and it reads as under: "Whether on the facts and circumstances of the case, the Appellate Tribunal was right in law in holding that the appellant is not entitled to claim higher rate of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ools used therein, the assessee claimed depreciation @ 40% as provided for under sub-item 2(iii) of Item III of Appendix I of the Income Tax Rules, 1962. The claim of the assessee was, however, rejected by the Assessing Officer. Aggrieved by the same, the assessee filed an appeal before the Commissioner of Appeals. Following an earlier order, the Commissioner of Income Tax (Appeals) directed the Assessing Officer to grant the relief of depreciation on plastic moulds @ 40%. Aggrieved by this, the Revenue went on appeal before the Tribunal and the Tribunal pointed out that the assessee had not produced any material to show that it had a separate unit to manufacture plastic parts when it is admittedly engaged in the manufacture of heavy electr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y utilised in the manufacture of products dealt with by the assessee. He also pointed out that installation of the moulds and moulding tools in the factory of the appellant was never in dispute. Thus, going by the materials available, the Commissioner allowed the claim. As far as the order relating to the assessment years 1991-92 and 1992-93 is concerned, even though it is dated 07.11.1996, it is a matter of record that the Revenue had not gone on appeal before the Income Tax Appellate Tribunal as against this order of the Commissioner. It is also a matter of record that the assessee did not file any tax case as against the order of the Tribunal dismissing M.P. Nos. 256 to 258/Mds/2005. 5. Leaving that aspect aside, learned counsel for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , particularly in reference to the factual finding that the assessee had not placed any material to show that it had a separate unit at Pondicherry for manufacturing plastic items so as to be entitled to claim depreciation @ 40% on the moulds used therein. In this connection, learned counsel placed reliance on the decision of this Court in Falcon wires (P.) Ltd.'s case (supra) and submitted that though the entry has to be reasonably construed, yet, if the industry does not fall within the entry, then the claim for depreciation @ 40% cannot be entertained. 7. As far as the reliance placed by the Revenue on the decision of this Court in Falcon wires (P.) Ltd.'s case (supra) is concerned, we do not think that the said decision will be of any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... howed that it had a separate division in its factory for making rubber containers, which were used for making batteries and which were not sold in the market. The Karnataka High Court pointed out that when the assessee had a separate unit engaged in the manufacture of rubber goods, and the rubber containers manufactured were used in the making of batteries, the assessee was entitled to depreciation @ 40%. We find that the decision of the Karnataka High Court has relevance to the facts of the case herein, particularly, in the context of the observation made in the Commissioner's order relating to the assessment year 1991-1992. The First Appellate Authority pointed out that though the assessee did not have a rubber or plastic goods factory ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the purpose of finding out whether recognition has been granted to the said unit as a separate unit. If the unit established is a separate unit, then, as held in the decision in Amco Batteries (P.) Ltd.'s case (supra), the assessee will be entitled to claim depreciation @ 40%. The assessee shall produce the Certificate of Registration as regards Pondicherry Unit recognised as a separate unit by the Ministry of Industry before the said authority so as to enable him to pass orders on grant of relief as per the provisions of the Act. 8. As far as the second substantial question of law is concerned, it is not necessary for us to consider the said question, in the light of the order passed above as regards the first substantial question of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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