TMI Blog2015 (9) TMI 1181X X X X Extracts X X X X X X X X Extracts X X X X ..... on - Held that:- In the present case, it is noticed that the disallowance of depreciation on vehicles was restricted by the ld. CIT(A) to the extent of 6% by following the decision of the ITAT in assessee’s own case for the preceding assessment year 2001,2002, during the course of hearing, nothing contrary to the said decision was brought on record. Therefore, we do not see any valid ground to interfere the findings of the ld. CIT(A). As regards to the disallowance of depreciation on the building, the ld. CIT(A) categorical stated that the assessee had claimed the depreciation @ 5% on the additions made after 30.09.2001 while the AO allowed the depreciation @ 5% on all the additions in the building account without considering that certain additions were prior to 30.09.2001 on which the depreciation at the rate of 10% was available. The ld. CIT(A) deleted the addition after considering the various details which were called for and were duly submitted by the assessee. Therefore, the impugned addition was also rightly deleted by the ld. CIT(A).The remaining addition on account of depreciation on Plant and Machinery was also made by the AO by assuming the installation date to be pos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... year relevant to the assessment year 2002-03 as DEPB and ₹ 93,40,792/- for the assessment year 2003-04. The AO did not allow the claim of the assessee for deduction u/s 80HHC on the said amounts. 5. Being aggrieved the assessee carried the matter to the ld. CIT(A) and submitted that the DEPB licenses were export incentives for refunds of various excise and custom duties paid while procuring raw materials and moreover, only a unit carrying out export sales is entitled to get DEPB licenses only and only against exports made. Thus, the DEPB credits / licenses directly arose due to exports of good or merchandise. It was further submitted that vide taxation laws (amendment) Act, 2005 the benefit u/s 80HHC on the amount of profit on sale of DEPB to exporters having turn over exceeding ₹ 10 crore was denied with retrospective effect from 1.4.98 but the said amendment had been held to be ultra virus to the extent of its retrospective effect by the Hon ble Gujarat High Court and the benefit of deduction u/s 80HHC on profits on sale of DEPB had been allowed vide order dated 28.01.2013 in the case of M/s Avani Exports vs. CIT reported at 23 Taxman 62. 6. The ld. CIT(A) after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amendments the classifications based on export turnover is a recognized way of classification throughout the world. Progressive levy is based on income classification in terms of both, the basis of taxation and the rate of tax, and on this ground, the same cannot be said to be arbitrary. The Legislature is not bound by the doctrine of promissory estoppels and the amendment could not be struck down on the ground of violation of promissory estoppels. The object of the amendment, as it appeared from the statements of the Finance Minister while moving the Bill, was to get rid of the wrong decision of the Tribunal interpreting the then provision of the statute in away beneficial to the assessee. Accoridngly to the existing law enacted by Parliament itself, wrong orders passed by a Tribunal should be challenged by the aggrieved party before the appropriate High Court and if such party is still aggrieved by the order of the High Court, he should move the Supreme Court. There was no defect in the original legislation but the Tribunal has interpreted the language of the valid piece of legislation in a way, which benefits the assesses. In such a case, for overcoming the adverse decision of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon ble Supreme Court in the aforesaid referred to judgment do not see any merit in this ground of the departmental appeal. 11. Ground no. 2 relates to the deletion of disallowance on account of depreciation made by the AO. The facts related to this issue in brief are that the AO disallowed the depreciation to the extent of ₹ 60,559/- on the vehicle block, ₹ 1,49,734/- on factory/ office building block, and ₹ 5,32,414/- on machinery plant block for the assessment year 2002-03 by observing as under :- 11) The assessee has submitted a chart of fixed assets showing opening WDV and additions made during the year and subsequently depreciation charged thereon. The assessee was asked to file complete details of fixed assets/additions made during the year. In the light of reply file by the assessee along with documentary evidence and copy of accounts the following disallowances have been made. A. Vehicle Block Dep. 20% Dep. 10% WDV as on 01.04.01 2737149 - Add: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Depreciation 3635363 + 627614= 4262977 The assessee has not furnished put to use/installation certificate for the addition of machinery and plant. It is supposed to be admitted that the machinery plant are added in the second half of the financial year. Hence excess depreciation in this block ₹ 532414/- (claimed 4795391-4262977) is disallowed accordingly. (Disallowance ₹ 532414/-) Hence total disallowance (60559+68523+ 149734+532414) = 811230/-. 12. Being aggrieved the assessee carried the matter to the ld. CIT(A) who incorporated the submissions of the assessee in page no. 6 and 7 of the impugned order which are reproduced verbatim as under :- Ground no. 1(e), Disallowance of ₹ 60,559/- and ₹ 68,523/- out of Depreciation on Vehicles :- The disallowance of ₹ 60,559/- has been made on the contention that the journal entry dated 31.03.2002 was not explained. The journal entry is the transfer of amount of car purchased from M/s MGF Automobiles Ltd. by Delhi branch office of the assessee on 24.02.2002. The detailed copy of account having particulars of invo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 02. As far as, addition on account of excess depreciation on building constructed during the year, it has been observed, by me, that all the details called for were duly submitted by the assessee. The AO had not called for any completion certificate from the appellant. The assessee has also claimed depreciation @5% on addition made after 30.09.2001. In view of all the details and submission the addition of ₹ 1,49,734/- is deleted. Addition on depreciation on plant and machinery, assuming the installation date to be post 30.09.2001 is improper based on surmise and conjectures. All the details called for were duly submitted with proper evidence. The addition stands deleted. Now the department is in appeal. 14. The ld. DR reiterated the observations made by the AO and strongly supported the assessment order dated 21.3.2005. In his rival submissions, the ld. Counsel for the assessee reiterated the submissions made before the authorities below and strongly supported the impugned order passed by the ld. CIT(A). 15. We have considered the submissions of both the parties and carefully gone through the material available on the record. In the present case, it i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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