TMI Blog1979 (7) TMI 43X X X X Extracts X X X X X X X X Extracts X X X X ..... Income-tax Officer at the latter's requisition ? " The assessee is a registered firm and for the assessment year 1970-71, filed a return on a total income of Rs. 1,93,080. In the return form, the assessee did not fill up the particulars relating to depreciation. Nor did it claim any depreciation allowance. The profit and loss account also did not contain any deduction for depreciation. The ITO issued a notice calling upon the assessee to give specific reasons in writing as to why depreciation was not claimed and why the prescribed particulars were not furnished. The notice stated also that if the assessee failed to furnish the required information, there would be an ex parte assessment. In response to this notice and to avoid any ex par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resent reference. The learned counsel for the assessee submitted that, so long as the assessee did not furnish the particulars and claim the allowance, it was not open to the ITO to grant the depreciation allowance. In his submission, the particulars furnished were under protest and, therefore, should not have been taken as having been furnished by the assessee. It was also submitted that the grant of depreciation allowance is conditional on the furnishing of the particulars and the particulars not having been furnished, the assessee could not have been granted depreciation. Even now it is not clear as to why the assessee is indulging in this kind of self-denial of a statutory deduction available under the law. However, we may approach ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prescribed particulars had not been furnished. It is a far cry from s. 34 to state that, unless the prescribed particulars had been furnished by the assessee, the allowance for depreciation could not under the law be granted. Reading ss. 32 and 34 together, we consider that the allowance of depreciation is available to the assessee in all cases. The ITO can disallow the claim, if the assessee did not furnish the prescribed particulars. However, it would be open to the ITO to grant depreciation even if the assessee had not furnished the prescribed particulars, as the computation of income under the Act is the computation of the real or proper statutory income. This income could be arrived at only after allowing the deductions available under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wance by way, of depreciation. " The above passage disposes of all the contentions urged on behalf of the assessee before us and we respectfully adopt it in the present case. The learned counsel for the assessee, however, submitted that there is an earlier decision of a Special Bench of this court in PR. AL. M. Muthu Karuppan Chettiar v. CIT [1939] 7 ITR 76 and that we are bound by the said decision. In the said decision the question that arose for the consideration of this court was (p. 88) : " Is the assessee entitled in law to a deduction of Rs. 1,875 in respect of depreciation of machinery in the Wakema mill, he having leased the mill ? " From the question it will be clear that the owner of a mill claimed deduction in respect of ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
