TMI Blog2015 (8) TMI 278X X X X Extracts X X X X X X X X Extracts X X X X ..... w were right in law in holding that the depreciation which the assessee was not desirous of claiming cannot be foisted on him. - Decided in favour of the assessee. - TAX APPEAL NO. 821 of 2007 - - - Dated:- 20-7-2015 - MR. A.J.DESAI AND MR. A.G.URAIZEE FOR THE APPELLANT : MR SUDHIR M MEHTA, ADVOCATE FOR THE OPPONENT : MRS SWATI SOPARKAR, ADVOCATE JUDGMENT (PER : HONOURABLE MR.JUSTICE A.J.DESAI) 1. By way of filing this appeal under Section 260A of the Incometax Act, 1961 the Commissioner of Incometax, Valsad had challenged the judgment/order dated 16th June 2006 passed by the Incometax Appellate Tribunal, Ahmedabad Bench in ITA No.580/Ahd/2002. 2. The brief facts, shorn of unnecessary details for the purpo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Limited v. Joint Commissioner of Incometax (Assessment), (2015) 231 Taxman 532 (Gujarat) and therefore has urged that the appropriate order may be passed. 6. While learned advocate Mr Bandish S. Soparkar for the respondent has also relied upon the decision in the case of Sakun Polymers Limited (supra) and has further relied upon the unreported decision of the Division Bench of this Court in the case of Dy. CIT (Asst.) v. Sun Pharmaceuticals India Limited, Tax Appeal No.93 of 2000 decided on 17.12.2014. 7. Having heard learned advocates on either side and upon perusing the judgment of Division Bench of this Court in the case of Sakun Polymers Limited (supra) and in the case of Dy. CIT (Asst.) v. Sun Pharmaceuticals India Limited (supra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the question of law be decided afresh. As both the questions of law are inter connected are decided together. 9. We have heard the learned counsel appearing for the parties at length. According to the learned counsel Mr. Parikh, the decision of the Full Bench of the Bombay High Court in the case of Plastiblends India Limited v. Additional Commissioner of Incometax Ors., reported in [2009] 318 ITR (Bom)[FB] will have to be applied to the facts of this case. Ld. Counsel has relied on the grounds of challenge raised in this appeal as it original was and amended. 10. In contra, learned counsel Mr. Soparkar for revenue has drawn our attention to the decision of the Honble Supreme Court in the case of Commissioner of Income Tax v. Mahe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reme Court. The second decision of Madras High Court in the case of Dasa Prakash Bottling Co. v. CIT (supra) will also not be applicable as the Gujarat High Court,which is jurisdictional High Court in the case of CIT v. Arun Textiles 192 ITR 700 did not agree with this decision. In the case of Arun Textiles (supra), the Gujarat High Court held that there is nothing in the provisions of section 32(1) read with section 29 of the Incometax Act, 1961, to indicate that even when no claim is made for allowing deduction in respect of the depreciation under section 32(1), the Incometax Officer is bound to allow a deduction. Under the scheme of the Act, income is to be charged regardless of depreciation on the value of the assets and it is only by w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owable as a whole. The assessee can claim it partly also in respect of certain block of assets and not claim in respect of other block of assets. I, therefore, direct the Assessing Officer to withdraw depreciation allowance of ₹ 85,24,227/not claimed by the appellant.' 14. In view of the aforesaid position of law settled by two Division Bench judgments of this Court we do not find any substance in this appeal and the questions framed for our consideration are answered in the negative. We hold that it is optional for the assessee whether or not to claim the depreciation and we further hold that the authorities below were right in law in holding that the depreciation which the assessee was not desirous of claiming cannot be fois ..... X X X X Extracts X X X X X X X X Extracts X X X X
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