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M/s TC Terrytex Limited, Muktsar Versus Joint Commissioner of Income Tax, Range-II, Bathina

2015 (6) TMI 314 - ITAT AMRITSAR

Additional depreciation u/s 32(1)(iia) on plant and machinery - disallowance of claim as it had not been claimed as per explanation 5 to section 32(1) - Held that:- As relying on ase of Goetze (India) Ltd. vs. CIT [2006 (3) TMI 75 - SUPREME Court] wherein held as regards the explanation 5 to section 32(1) which speaks of allowing depreciation u/s 32 whether or not the assessee has claimed deduction in respect of depreciation in computing total income. In the said explanation which was inserted b .....

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ngly, we direct the AO to allow the additional depreciation as per law, so claimed by the assessee. Decided in favour of assessee. - ITA No. 143(Asr)/2014 - Dated:- 17-3-2015 - A D Jain, JM And B P Jain, AM,JJ. For the Appellant : Shri Padam Bahl, CA For the Respondent : Smt Ratinder Kaur, DR ORDER Per B P Jain, AM. This appeal of the assessee arises from the order of the CIT(A), Bathinda, dated 30.12.2013 for the assessment year 2009-10. The assessee has raised the following grounds of appeal: .....

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essment proceedings, the assessee lodged a fresh claim of additional depreciation on plant and machinery amounting to ₹ 6,29,28,039/-. The AO disallowed the same for the reason that the assessee could not file a revised return upto 31.03.2011 and since the fresh claim of additional depreciation has been made after the said date the same was not admissible. 3. The Ld. CIT(A) confirmed the action of the Assessing Officer. 4. It was argued by the ld. Counsel for the assessee, Mr. Padam Bahl, .....

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nd, relied upon the orders of both the authorities below. 6. We have heard the rival contentions and perused the facts of the case. The ld. CIT(A) mainly relied upon the decision of the Hon'ble Supreme Court in the case of Goetze (India) Ltd. vs. CIT, reported in (2006) 284 ITR 323 (SC). The decision of Hon'ble Supreme Court in the case of Goetze (India) Ltd. vs. CIT (supra), is reproduced hereinbelow for the sake of convenience: "1. Leave granted. 2. The question raised in this app .....

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the return of income by modifying an application at the assessment stage without revising the return. 3. This appellant's appeal before the Commissioner (Appeals) was allowed. However, the order of the further appeal of the department before the Income Tax Appellate Tribunal was allowed. The appellant has approached this court and has submitted that the Tribunal was wrong in upholding the assessing officer's order. He has relied upon the decision of this court in National Thermal Power C .....

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deduction otherwise than by filing a revised return. In the circumstances of the case, we dismiss the civil appeal. However, we make it clear that the issue in this case is limited to the power of the assessing authority and does not impinge on the power of the Income Tax Appellate Tribunal under section 254 of the Income Tax Act, 1961. There shall be no order as to costs." 7. The Hon'ble Supreme Court in the case of Goetze (India) Ltd. vs. CIT (supra), has made it clear that the issue .....

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1)(iia) of the Act @ 20% amounting to ₹ 13,02,92,452/-. The Revenue have not established or have not brought on record that such omission was deliberate or malafide. The omission has been made inadvertently in the facts and circumstances of the present case. The reliance is placed by the ld. Counsel for the assessee in the case of Commissioner of Income Tax. Central-I Versus M/s. Pruthvi Brokers & Shareholders Pvt. Ltd. (2012) 349 ITR 336 (Bombay), where it has been held by dismissing .....

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h less established that the omission was deliberate or mala fide. Both the appellate authorities had themselves considered the additional claim and allowed it. The Hon'ble Bombay High Court, amongst decisions of various other courts of law has also considered the decision of the Hon'ble Supreme Court in the case of Goetze (India) Ltd. vs. CIT (supra), while deciding the issue. In the facts and circumstances, claim of the assessee was inadvertent and the omission was not deliberate or mal .....

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e part of depreciation u/s 32(1) especially of section 32(1)(i), which includes the machinery for allowing depreciation. Therefore, on this account, a legal claim of additional depreciation has to be allowed by the Income Tax Authorities and accordingly, we direct the AO to allow the additional depreciation as per law, so claimed by the assessee and reverse the order of the ld. CIT(A). 9. Similar issue has been decided by the ITAT, Amritsar Bench, in the case of sister concern of the assessee i. .....

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e are of the view that the Assessing Officer has disallowed the claim of the assessee for the reason that the assessee could file a revised return upto 31.03.2011 and since the claim in dispute is a fresh claim and has been made after said date, the same was not admissible. Learned First Appellate Authority upheld the view of the Assessing Officer by rejecting the claim of the assessee. We are of the view that the depreciation claimed by the assessee is a statutory right of the assessee and the .....

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amounting to ₹ 6,29,28,039/-. Learned First Appellate Authority has given his findings in the impugned order regarding the aforesaid issue at page nos. 3 to 5, the relevant portion is reproduced as under for the sake of convenience: "In Ground No. 2 of Appeal, it has been contended that the A.O. erred in disallowing the claim of the appellant for additional depreciation on plant and machinery amounting to ₹ 6,29,28,039/- under section 32(1)(iia) of the Act. During assessment pr .....

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he conditions enumerated in section 32 of the Act. In this regard, reliance has also been placed on certain judgments and the same have also been carefully perused and considered. In the case of ITO, Ward II-(2) Vs. Sri Balaji Sago and Starch Products reported at (2012) (4) TMI 147 - I.T.A.T. Chennai, the rate of depreciation was wrongly mentioned and the Hon'ble I.T.A.T. held the mistake was apparent from record and as no fresh claim was made, there was no need to file the revised return. H .....

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. The finding of the Tribunal is as under:- 19. In view of the above, we find no error in the order of the learned Commissioner of Income-tax (Appeals). It has correctly been held by the first appellate authority, inter alia, that as per Form 10CCB filed during the assessment proceedings, the claim made by the assessee was admissible and the same remained to be allowed. The order of the learned Commissioner of Income-tax (Appeals) is hereby upheld in view of the above discussion. The grievance o .....

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de in the income-tax return. Accordingly, this judgment also does not help the appellant. Again, the learned A/R has also relied upon the judgment in the case of CIT, Central-I Vs. M/s Pruthvi Brokers & Shareholders (P) Ltd. Reported at (2012) 349 ITR 336 (Bom.) wherein it has been held that the declaration of law is clear that the Appellate Assistant Commissioner is co-terminus with that of the Income Tax Officer and if that be so, there appears to be no reason as to why the appellant autho .....

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ion 32(1) of the Act clearly states that the provision of this sub-section shall apply whether or not the assessee has claimed the deduction in respect of depreciation in computing his total income. However, I am not inclined to agree with the learned A/R in this regard because section 32(1)(iia) of the Act regarding allowing the additional depreciation comes after Explanation 5 and thus the same is applicable only for the claim of depreciation and not for the claim of 'Additional Depreciati .....

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