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2012 (10) TMI 560 - AT - Income TaxDepreciation on the assets of an undertaking engaged in generation or generation and distribution of power - Held that - Charging of Depreciation @80% on opening value and the value added on due date in the return of income along with audit report and books of account wherein the assessee has adopted the rate as prescribed under second proviso to rule 5(1A) is justified as he complies with time limit as prescribed u/s 5(1A). As decided by Court in case of K.K.S.K. Leather Processors (P) Ltd.2011 (3) TMI 72 - CESTAT, CHENNAI that the appellant is entitled to enhanced rate of depreciation and the AO has incorrectly restricted it to 7.69%. The AO is therefore directed to allow the enhanced rate of depreciation to the appellant. The appeal of the appellant is therefore allowed - in favour of assessee.
Issues:
- Disallowance of depreciation claim by the Assessing Officer. - Interpretation of provisions related to depreciation under the Income Tax Act, 1961. - Exercise of option for claiming higher rate of depreciation before the due date. - Decision of the CIT(A) in favor of the assessee regarding the enhanced rate of depreciation. Issue 1: Disallowance of depreciation claim by the Assessing Officer The Assessing Officer disallowed the assessee's claim of depreciation amounting to Rs 18,21,309 for the assessment year 2006-07. The AO observed that the assessee claimed depreciation at 80% on the opening value and the value added as specified in the Income Tax Rules. However, the admissible rate of depreciation for wind mills (Energy Division) was only 7.69%. Consequently, the AO disallowed the claim made by the assessee. Issue 2: Interpretation of provisions related to depreciation under the Income Tax Act, 1961 The CIT(A) referred to the provisions of section 32 of the Income Tax Act, which prescribe depreciation rates on the actual cost of assets for undertakings engaged in power generation. The Explanation 5 to section 32 emphasizes that the Assessing Officer must allow depreciation as per the provisions of section 32, irrespective of whether the deduction was claimed by the assessee. The CIT(A) highlighted that the rules specifying different rates of depreciation could not override the statutory provisions, and the Assessing Officer was obligated to allow depreciation as per the assessee's option. Issue 3: Exercise of option for claiming higher rate of depreciation before the due date The CIT(A) held that the requirement to exercise the option for higher depreciation rate before the due date was not mandatory, but a facilitative provision for the Assessing Officer. The CIT(A) interpreted "before due date" as not after the expiry of the due date, allowing the option to be exercised on the due date itself. The CIT(A) concluded that the assessee's claim in the return of income, audit report, and books of account constituted valid exercise of the option within the prescribed time limit. Issue 4: Decision of the CIT(A) in favor of the assessee regarding the enhanced rate of depreciation Relying on a previous Tribunal decision, the CIT(A) held in favor of the appellant, directing the Assessing Officer to allow the enhanced rate of depreciation. The Tribunal found no infirmity in the CIT(A)'s order and dismissed the Revenue's appeal, as there was no evidence of the Tribunal's decision being modified or reversed by the High Court. In conclusion, the Tribunal upheld the CIT(A)'s decision, allowing the enhanced rate of depreciation for the assessee and dismissing the Revenue's appeal.
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