TMI Blog2009 (4) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... 06. The said question is as under; "Whether the Tribunal was justified in law in holding that the appellant was entitled to depreciation on the assets acquired from M/s. Western India Match Company Ltd. (WIMCO) based on the value placed in the surveyors report and not on the actual cost incurred by the appellant for acquisition of the assets". 2. We have heard Senior Advocate P.J. Pardiwalla with Advocate S.G. Bhobe for the appellant and Advocate S. R. Rivonkar for the respondent/Department. 3. The appellant Company came to be incorporated on 7.6.1989 with its registered office in New Delhi. It acquired metal anodes division by name M/s. Western India Match Company Ltd. (WIMCO) by agreement dated 30.11.1989. On 29.11.1996, in the return filed with the Assessing Officer at New Delhi it claimed depreciation under Section 32 of the Income Tax Act, 1961 ("Act" for short) on written down value of the acquired assets. The said written down value was stated on the basis of actual costs incurred by the appellant for acquisition i.e. of Rs.6,10,02,641/-. The Assessing Officer completed the assessment under Section 143(3) of the Act. But then for the assessment year 1990-91 adopte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the only reason for such opposing and finding was that each assessment year needed to be treated as an independent assessment year and doctrine of res judicata was not applicable. However, while considering the controversy on merits, the ITAT found that the issue was covered by the decision of its Delhi Bench, and, therefore, it sustained the orders of the assessment along with the reasons mentioned therein. The learned Senior Advocate, therefore, contended that the approach of ITAT shows clear dichotomy and the matters need to be sent back to the Assessing Officer to await adjudication by Delhi High Court. He contends that the reasons for not accepting the actual costs for the purpose of calculating depreciation and for relying upon the surveyor's report are contained in the order of Delhi ITAT only. 6. As against this, Advocate Rivonkar, has contended that section 158-A clearly stipulates that declaration made by the assessee can be accepted only if the other side agrees to it. He points out that if there is any opposition, recourse to Section 158-A is not possible. He further points out that because of this arrangement only, sub-section (6) makes the order passed under sub-s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Assessing Officer or the appellate Authority as the case may be and the assessment order can be amended suitably. Sub-section (2) of Section 158A states that when such a declaration is furnished to the appellate authority, the appellate authority has to call for report from the Assessing Officer and that report has to be on the correctness of the claim made by the assessee. In other words, the contention of the assessee that the question of law raised in relevant case is pending for consideration in other case needs to be ascertained by calling report from such Assessing Officer. The said provision permits the appellate authority to grant opportunity of hearing to the Assessing Officer. Sub-section (3) requires the appellate authority to pass an order, in writing, admitting the claim of the assessee or then rejecting his claim if it is not so satisfied. Sub-section (4) states that when the claim is admitted, the appellate authority may dispose of the relevant case without awaiting the final decision on the question of law in the other case and the assessee is not entitled to raise, in relation to that case, such question of law in appeal before any appellate authority or the Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e" or "not revisable". As already observed above, the ITAT here has failed to apply its mind as required and therefore, the very purpose of putting Section 158A in the statute book has been frustrated. 10. Mr. Rivonkar has argued that the order passed under Section 158A(3) is not open to challenge in the present appeals. The learned Senior Advocate has contended that the impugned order is under Section 254(1) of the Act. The scheme of Section 158A clearly shows that after declaration as contemplated by Section 158A(1) is filed either before the Assessing Officer or the appellate authority, a separate order is required to be passed as contemplated under Section 158A(3) either admitting the claim or rejecting the claim. There is no question of hearing the parties on merits, in appeal, at that stage. If arguments on such a declaration and also arguments on appeal are heard together and ultimately, the declaration is accepted as required by Section 158A(3)(i), the arguments on merits heard by the authority would be an exercise into futility. Even the provisions of Section 158A(6) also show that the legislature contemplated passing a separate order either admitting the claim of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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