2005 (9) TMI 587 - AT - Income Tax

Claim for depreciation on plant and machinery - Disallowance made by the AO s out of stock written off on account of obsolescence - HELD THAT - In the present case there was lock out and strike for five years and the plant and machinery was not put to use as there was admittedly no manufacturing activity. The depreciation could not be allowed on such non-use in view of the clear verdict of the hon ble Bombay High Bombay High Court in Dineshkumar Gulabchand Agrawal v. CIT 2003 (1) TMI 19 - BOMBAY HIGH COURT and the hon ble Calcutta High Court in CIT v. Oriental Coal Co. Ltd. 1994 (1) TMI 82 - CALCUTTA HIGH COURT which is directly on the point. Further by merely including an item in the block will not make it eligible for the depreciation if other conditions for allowability of the claim are not satisfied. Similarly the Income-tax Appellate Tribunal is not bound to follow legally incorrect decision of the Assessing Officer taken in other years. We respectfully prefer to follow the same on the issue. Hence we reverse the order of the CIT (A) on this point and restore that of the Assessing Officer. This ground of the Revenue is therefore allowed. The limited issue involved in the second ground is whether 50 per cent. disallowance made by the Assessing Officer out of stock written off on account of obsolescence and allowed by the CIT (A) is justified. The Assessing Officer disallowed the written off by 50 per cent. on estimate basis. The assessee had claimed it as stock had become unusable due to strike/lock out. The CIT (A) allowed the entire claim on the ground that factum of obsolescence has been accepted by the Assessing Officer by at least allowing 50 per cent. of the claim. Then there was no reason why the entire claim should not have been allowed. Before us the ld DR could not point out why only half the claim was allowed and not full. The assessee has a justification to write off the stock because there was strike/lock out. Therefore we do not find any reason to interfere in the order of the CIT (A) on this ground. This ground of the Revenue is therefore rejected. In the result the appeal of the Revenue is partly allowed.

Summary

Issues:
1. Disallowance of depreciation on plant and machinery not put to use during the relevant previous year.
2. Deletion of addition of 50% of obsolete stock written off.

Analysis:

Issue 1: Disallowance of Depreciation on Plant and Machinery
The Revenue contended that depreciation should only be allowed on actual use of machinery, not on passive use during a lockout period. The Commissioner of Income-tax (Appeals) had allowed depreciation, considering the temporary disruption in manufacturing activities due to strikes and lockouts as passive use. The Appellate Tribunal noted that the Bombay High Court's decision in Dineshkumar Gulabchand Agrawal v. CIT clarified that depreciation cannot be allowed on assets ready for use but not actually used. The Tribunal held that the assessee was not entitled to depreciation on passive use or machinery ready for use, emphasizing the need for actual use for depreciation eligibility. Additionally, the Calcutta High Court's decision in CIT v. Oriental Coal Co. Ltd. supported the same principle, stating that depreciation is not allowable if machinery remains unused during a lockout period.

Issue 2: Deletion of Addition of Obsolete Stock Written Off
The Assessing Officer had made a 50% disallowance on the written-off stock due to obsolescence, which was allowed by the Commissioner of Income-tax (Appeals). The Tribunal found that the Assessing Officer had accepted the fact of obsolescence by allowing 50% of the claim. As the justification for writing off the stock was the strike/lockout situation, the Tribunal upheld the Commissioner's decision to allow the entire claim, as there was no reason to only allow half of it. The Revenue's argument for partial disallowance was deemed unjustified, and the Tribunal rejected the Revenue's appeal on this ground.

In conclusion, the Appellate Tribunal partly allowed the Revenue's appeal concerning the disallowance of depreciation on plant and machinery but rejected the appeal regarding the deletion of the addition of obsolete stock written off.