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2016 (8) TMI 366 - ITAT MUMBAI

2016 (8) TMI 366 - ITAT MUMBAI - TMI - Validity of order passed u/s 263 - whether the assessee was entitled or benefit of additional depreciation in the impugned order @30% u/s 32(1)(iia) - Held that:- As decided in the case of CIT vs Rittal India Pvt Ltd [2015 (1) TMI 1248 - KARNATAKA HIGH COURT ] that beneficial legislation, should be given liberal interpretation so as to benefit the assessee. In this case, the intention of the legislation is absolutely clear, that the assessee shall be allowe .....

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it have to be construed reasonably, liberally and purposively, to make the provision meaningful while granting additional allowance. We are in full agreement with such observations made by the Tribunal. - Thus the view adopted by the ld.CIT is contrary to law and facts. The Assessing Officer had rightly allowed the benefit of additional depreciation in the year under consideration. Under these circumstances, the order passed by the ld.CIT is hereby quashed. - Decided in favour of assessee .....

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ties on the grounds raised before us with regard to the validity of order passed u/s 263. 3. The solitary issue raised in this appeal is whether the assessee was entitled or benefit of additional depreciation in the impugned order @30% u/s 32(1)(iia). The Assessing Officer had allowed the depreciation vide order u/s 143(3) dt 23-01-2013. In the order passed u/s 263, the ld.CIT observed that the additional depreciation was claimed and allowed on new plant & machinery which were acquired and p .....

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ore, the balance amount of additional depreciation would be allowable to the assessee in the year under consideration as per provisions contained in clause (ii) of sub section (1) of section 32. But the ld.CIT was not satisfied with the reasoning given by the assessee and he found that assessment order passed by the Assessing Officer was erroneous and prejudicial to the interest of the revenue and, therefore, order passed by Assessing Officer was set aside with the direction to the Assessing Off .....

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) 2. M/ Divis Laboratories Ltd vs The Dy.CIT - ITA O.11/Hyd/2012 order dt 12-07-2013 3. ITO vs M/s Aswani Industries - ITA O.210/Ahd/2013 order dt 31- 05-2013 4. Apollo Tyres Ltd vs ACIT - ITA No. 616/Coch/2011 order dt 2012- 2013 5. M/a MITC Rolling Mills P. Ltd vs ACIT 10(2), Mumbai order dt 13- 05-2013 4. Per contra, the ld.DR relied upon the decision of the Tribunal in the case of CRI Pumps Pvt Ltd vs ACIT 58 sot 154 (Chen). 5. We have gone through the orders of lower authorities and conside .....

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s correct in extending the benefit of Section 32(1 )(iia) of the Act to the next assessment year when the income tax Act does not provide for such carryover, thereby violating the legal principles of "cassus omissus" which states that the courts cannot compensate for what the legislature has omitted to enact? ii. Whether the Tribunal was correct in holding that additional depreciation allowed u/s.32(l)(iia) is a one time benefit to encourage industrialization and the relevant provision .....

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being tangible assets; (ii) know-how, patents, copyrights, trade marks, licences, franchises or any other business or commercial rights of similar nature, being intangible assets acquired on or after the 1 st day of April, 1998, owned, wholly or partly, by the assessee and used for the purposes of the business or profession, the following deductions shall be allowed- (i) in the case of assets of an undertaking engaged in generation or generation and distribution of power, such percentage on the .....

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d eighty days in that previous year, the deduction under this sub-section in respect of such asset shall be restricted to fifty per cent of the amount calculated at the percentage prescribed for an asset under clause (i) or clause (ii) I or clause (iia), as the case may be: Provided also .............. Provided also .............. Provided also .............. Provided also .............. Explanation I. .............. Explanation 2 . .......... Explanation 3 ............ Explanation 4 ........... .....

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Clause (iia) of Section 32(1) of the Act, as it now stands, was substituted by the Finance Act, 2005, applicable with effect from 01.04.2006. Prior to that, a proviso to the said Clause was there, which provided for the benefit to be' given only to a new industrial undertaking, or only where a new industrial undertaking begins to manufacture or produce during any year previous to the relevant assessment year. 8. The aforesaid two conditions, i.e., the undertaking acquiring new plant and mac .....

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viso to Clause (ii) of the said Section makes it clear that only 50% of the 20% would be allowable, if the new plant and machinery so acquired is put to use for less than 180 days in a financial year. However, it nowhere restricts that the balance 10% would not be allowed to be claimed by the assessee in the next assessment year. 9. The language used in Clause (iia) of the said Section clearly provides that "a further sum equal to 20% of the actual cost of such machinery or plant shall be a .....

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