TMI Blog2019 (9) TMI 258X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon'ble Supreme Court then it is a binding law for all the authorities including the AO. This is also an undisputed fact that allowing the claim of additional depreciation while passing the assessment order u/s 143(3), the judgement of Hon'ble Supreme Court was not considered. Therefore, the order passed by the AO without considering the binding of law laid down by the Hon'ble Supreme Court would amount an apparent mistake on record which can be rectified u/s 154 of the Act. The Hon'ble Supreme Court in the case of ACIT vs Saurasthra Katch Stock Exchange Ltd. [ 2008 (9) TMI 11 - SUPREME COURT] has held that non-consideration of a binding decision would render the Tribunal decision liable for rectification of mistake app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the facts and circumstances of the case in upholding the issuance of notice u/s 154 even in the case where the issue involved is debatable issue and not a mistake apparent from records. 2. For that ld. CIT(A)-III, Jaipur have further grossly erred under the facts and circumstances of the case in confirming the additions of ₹ 8,61,224/- on account of additional depreciation treating the assessee's manufacturing activities as not a manufacturing activities. 2.1 None appeared on behalf of the assessee when this appeal was repeatedly called for hearing till the Bench rose despite the fact that the notice was issued to the assessee through RPAD and the same has not been received back unserved. Acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther hand, the ld. DR has submitted that once the issue has been decided by the Hon'ble Supreme Court then it is a binding of law for the AO as well as for the assessee and not considering the decision of Hon'ble Supreme Court while allowing claim of additional depreciation amounts a mistake apparent on record. He has relied on the orders of the authorities below. 2.5 Having considered the submissions of the ld. DR as well as careful perusal of the impugned orders and the submissions of the assessee before the ld. CIT(A), we find that the main contention of the assessee against the order passed u/s 154 of the Act is that the issue of additional depreciation and whether the assessee is engaged in the business of manu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court that the question in that case was whether the assessee was an industrial company within the meaning of section 2(8) of the Finance Act, 1975, and that, in answering that question, the High Court had held that raw diamonds and cut and polished diamonds were different and distinct marketable commodities having different uses; therefore, a company engaged in cutting and polishing raw diamonds for the purpose of export was engaged in the 'processing of goods' to convert them into marketable form. The question that the High Court and we are here concerned with is whether in cutting and polishing diamonds the assessee manufactures or produces articles or things. 6. There can be little difficulty in h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e order then non-consideration of the same would amount an apparent mistake on record. As regards the decision in the case of ITO vs Arihant Tiles Marbles (P) Ltd. (supra), the said decision has not overruled earlier decision in the case of CIT vs Gem India Mfg. Co. (supra). Further while considering the issue in the case of ITO vs Arihant Tiles Marbles (P) Ltd. (supra), Hon'ble Supreme Court has noted that the assessee in the said case was engaged in the activities which include excavation of marble blocks and processing of such blocks by cutting into tiles and thereafter processing the tiles in different shapes and sizes and polishing was held to be manufacture or production. Thus the process undertaken while manufacturing of tile ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... milar to the present case. Therefore, the Assessing Officer rightly disallowed additional depreciation on plant and machinery @ 20% /10% of ₹ 8,61,224/- Considering the above observation and following the above cited case law I am the view that appellant is not eligible for additional depreciation u/s 32(iia) of the Income Tax Act, 1961. So I confirm the addition made by the Assessing Officer of ₹ 8,61,224/- u/s 32(iia) of the Income Tax Act, 1961. These grounds are not allowed. In view of the above discussions, we do not find any error or illegality in the impugned order of the ld. CIT(A). Thus the appeal of the assessee is dismissed. 3.0 In the result, the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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