TMI Blog2015 (1) TMI 484X X X X Extracts X X X X X X X X Extracts X X X X ..... /04/2002, while calculating deduction under Chapter VI-A of the Act. - TAX APPEAL NO. 41 of 2007 With TAX APPEAL NO. 526 of 2007 With TAX APPEAL NO. 527 of 2007 With TAX APPEAL NO. 699 of 2007 - - - Dated:- 23-12-2014 - MR. KS JHAVERI AND MR. K.J.THAKER, JJ. FOR THE APPELLANT : MR. S.N. SOPARKAR, SENIOR ADVOCATE WITH MRS SWATI SOPARKAR, ADVOCATE JUDGEMENT Per: K S Jhaveri: 1. The question of law raised in these appeals are common, therefore, all these appeals are being disposed of by this common judgment. 2. In Tax Appeal No.41 of 2007, the appellant-assessee has challenged the judgment and order dated 02.07.2006 passed by the Income Tax Appellate Tribunal, Ahmedabad [for short the Tribunal ] in ITA No.284/Ahd/2001 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Tribunal vide impugned order dated 02.07.2006, partly allowed the appeal of the revenue. Hence, this appeal is filed at the instance of the revenue. 8. While admitting Tax Appeal Nos. 41 of 2007, 526 of 2007 and 527 of 2007, the Court had formulated the following substantial question of law:- Whether in the facts and circumstances of the case, the Income Tax Appellate Tribunal was right in law in holding that depreciation, whether claimed or not, has to be foisted upon the assessee even prior to insertion of Explanation 5 to S.32(1) of the Act with effect from 01/04/2002, while calculating deduction under Chapter VI-A of the Act ? 9. While admitting Tax Appeal No.699 of 2007, the Court had formulated the followin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l is right in law and on facts in holding that depreciation not claimed for by the assessee, cannot be allowed as a deduction despite the introduction of the concept of block assets ? 6. We have heard the learned counsels appearing for the parties and considered the submissions. Mr. Soparkar learned counsel at the out set submitted that the question no. 2 cannot be re-agitated as it is covered by the decision of this Court in Tax Appeal No. 175 of 2001 as well as Tax Appeal No. 2/2002 decided on 17.11.2014. However, Mr. Parikh learned counsel for Revenue submitted that the question of law as raised in this case was never decided in those matters, and therefore, he requested that the question of law be decided afresh. As both the ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... placed reliance on the decision of the Full Bench of Bombay High Court Plastiblends India Limited v. Additional Commissioner of Income-tax Ors., reported in [2009] 318 ITR (Bom)[FB] and submitted that this appeal should be allowed. 11. As far as this aspect is concerned, the finding of fact recorded by the CIT(Appeals) which reads as under: 3. The contentions of the appellant and the reasons given by the Assessing Officer in allowing full depreciation are considered. The decision of CIT v. Mother India Refrigeration (P) Ltd. (supra) relied on by the assessing Officer is not applicable in the instant case as the issue as to whether depreciation is optional or not was never before the Supreme Court. The second decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 1965 (F. No. 45/239/65-ITJ), dated 31.8.1996) directed that, where the required particulars have not been furnished by the assessee and no claim for depreciation has been made in the return, the Income-Tax Officer should estimate the income without allowing depreciation allowance. Respectfully following the decision of the Gujarat High Court, I hold that the depreciation is optional to the assessee and once he chooses not to claim it, the Assessing Officer cannot allow it while computing the income. Further, once the depreciation is option, applying the same ratio of Gujarat High Court and other Courts, it will be optional for block of assets also. It is not necessary that the depreciation is allowable not allowable as a whole. The asse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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