9911796707
TMI Blog2014 (1) TMI 591X X X X Extracts X X X X X X X X Extracts X X X X ..... es, we find that upon examination of records by Ld. Commissioner, it was noted that the assessment order passed u/s 143(3) of the Act was erroneous and pre-judicial to the interest of Revenue because Assessing Officer has wrongly allowed the additional depreciation on the new machinery purchased. Accordingly, the show cause notice was issued and in response to the same, it was submitted that assessee had acquired two new machines namely Terrot and Fukuhara Machines on 11.4.2005. It was pointed out that since the conditions prescribed u/s 32(i)(iia) of the Act was to acquire as well as install machinery and the same could not have been installed before the same landed in India. It was further submitted that proceedings u/s 263 have been init ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atter whether the assessee got these machines in his possession and installed them in the month of April or later on. It also doesn't matter to our case, whether machines are put to use or not. The only thing which matters as of now is that these machines were acquired by the assessee in the accounting period 01.04.2004 to 31.03.2005, which is relevant to the assessment year 2005-06. I have already stated (supra) that even the payments were made in this period through the books of account. This money stands transferred during this period as can be seen from the above details of the LC for both the machineries and debit notes of the State Bank of India. In this view of the matter, there doesn't exist any doubt that the assessee had purchased ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rly indicate the date i.e. 11th April. The same is case with Terrot Machine, the copy of the invoice is at pages 46 to 47 of the paper book. This fact clearly shows that machine was acquired after 11.4.2005. In any case, the language of section 32(1)(iia) very clearly says that assessee is entitled for additional depreciation if the new machinery has been acquired and installed after 31.3.2005. The Ld. Commissioner has misdirected himself by holding that machine has been acquired before 31.3.2005 only on the basis of opening of L/c's by the assessee. He has totally ignored the requirement regarding installation. The Ld. Counsel also relied upon the following decisions:- (a) CIT v. Chawla Trunk House 139 ITR 182 (P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , by an assessee engaged in the business of manufacture or production of any article or thing, a further sum equal to twenty per cent of the actual cost of such machinery or plant shall be allowed as deduction under clause (ii): Provided that no deduction shall be allowed in respect of- (A) any machinery or plant which, before its installation by the assessee, was used either within or outside India by any other person; or (B) any machinery or plant installed in any office premises or any residential accommodation, including accommodation in the nature of a guest-house; or (C) any office appliances or road transport vehicles; or (D) any machinery or plant, the whole of the actual cost of which is allowed as a d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conditional contract for the sale of specific goods in a deliverable state, the property in the goods passes to the buyer when the contract is made, and it is immaterial whether the time of payment of the price or the time of delivery of the goods, or both, is postponed." 8. No doubt this provision specifically mentions that if there was an unconditional contract of sale of specified goods in deliverable state then property in the goods would pass on to buyer on the date of contract. However, no written contract has been adduced before us to show such an intention. Since the invoice is on the basis of CIF and moreover the bill of entry has been endorsed by the Customs Department on 11.4.2005 and Octroi receipt is also dated 11.4.2005, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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