2008 (1) TMI 377 - HC - Income Tax

Claim for investment allowance - assessee had purchased plants and machineries in the three financial assessment years i.e. 1985-85, 1986-87 and 1987-88. But the same could not be shown in the return as the return filed for the said period were loss income - The assessing authority declined to accept the claims made by assessee in A.Y. 1991-92 since assessee could not create Reserve account in earlier years as assessee incurred loss in A.Y 1985-86 to 1987-88, assessee is entitled to Investment allowance

Summary

Issues:
Interpretation of section 32A(4)(ii) of the Income-tax Act, 1961 regarding investment allowance reserve account creation.

Analysis:
The case involved an appeal under section 260A of the Income-tax Act against an order passed by the Income-tax Appellate Tribunal. The main question for consideration was whether the claim for investment allowance had to be made during the relevant assessment year or when the appellant had adequate funds for creating the reserve for investment allowance. The appellant had filed a return for the assessment year 1991-92, showing a revised income amount and claimed investment allowance for previous assessment years where losses were incurred. The assessing authority rejected the claim as it was not made in the original return. The Commissioner of Income-tax (Appeals) allowed the appeal, but the Income-tax Appellate Tribunal sided with the Revenue, leading to the current appeal.

The Finance Act, 1990, retrospectively amended section 32A(4)(ii) of the Act, requiring the creation of an investment allowance reserve account. The appellant argued that the reserve account creation was not necessary in years where losses were incurred, and it could be done in the year of actual deduction, as per the amendment's purpose. The appellant's position was supported by a similar case decided by the Calcutta High Court. The Court noted that the purpose of the amendment was to allow reserve creation in years between installation and deduction, not necessarily in the installation year if there were insufficient profits.

Ultimately, the Court held that the Tribunal's order was not legally sustainable. It was set aside, ruling in favor of the assessee against the Revenue. The decision was based on the understanding that reserve creation was not mandatory in years of losses, aligning with the amendment's purpose to facilitate reserve creation in profitable years. As a result, the appeal was allowed in favor of the assessee.