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2015 (8) TMI 278 - GUJARAT HIGH COURT

2015 (8) TMI 278 - GUJARAT HIGH COURT - TMI - Eligibility of depreciation claim - whether the Tribunal right in holding that no depreciation can be thrust upon in this case, though the assessee has not forgone its right to claim depreciation in case of positive income and ought to have upheld that depreciation need to be worked out even in the cases where deduction under Chapter VI A is not claimed/allowed because of paucity of profits? - Held that:- No substance in this appeal and the questions .....

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NENT : 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 purpose of disposal of this appeals, are that the assessee in Tax Appeal No. 821 of 2007 filed return o .....

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wherein the following questions are framed: (A) Whether on the facts and in the circumstances of the case and in law was the Tribunal right in holding that no depreciation can be thrust upon in this case, though the assessee has not forgone its right to claim depreciation in case of positive income? (B) Whether on the facts and circumstances of the case and in law was the Tribunal ought to have upheld that depreciation need to be worked out even in the cases where deduction under Chapter VI A i .....

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at 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 C .....

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in this appeal afresh after many years that the issue involved in the present case, requires reconsideration, and therefore, Civil Application being OJ CA No. 546 of 2010 was filed after Tax Appeal No. 2/2002 was decided, and pursuant to the order passed in OJCA No. 546 of 2010, vide order dated 26.11.2014, the following substantial question of law has been framed by this Court, which reads as under: Whether, the Appellate Tribunal is right in law and on facts in holding that depreciation not cl .....

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ed 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 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., r .....

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ted that the questions of law are concluded, but no elaborate reasons are to be given in view of the finding of fact and the question also having been answered in the case of Manehdra Mills (supra), and therefore, the decision of the Honble Supreme Court will enure for the benefit of the present assessee as the amendment is after 2000 and not prior thereto. 11. The decision cited by the learned counsel for the Revenue of the Bombay High Court (supra) cannot be applied in the facts of this case a .....

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'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 Madras High Court in the case of Dasa Prakash Bottling Co. v. CIT (supra) will also not be applicable as the .....

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the Act, income is to be charged regardless of depreciation on the value of the assets and it is only by way on an exception that section 32(1) grants an allowance in respect of depreciation on the value of the capital assets enumerated therein. There is intrinsic evidence under section 43(6)(b) of the Act in the expression less all depreciation actually allowed to show that it is not as if all allowable deductions are to be granted by the Incometax Officer even when the assessee does not want .....

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