2022 (1) TMI 147 - AT - Income Tax

Disallowance of depreciation u/s. 32(1) r.w.s. 43(1) - assets of the assessee company have been acquired by it in a scheme of demerger approved by the Hon'ble High Court - HELD THAT - Since the ld. CIT(A) while allowing the claim of depreciation has followed the order of his predecessor for AYs 2012-13 and 2013-14 and since the order of the CIT(A) for AYs 2012-13 and 2013-14 2019 (8) TMI 1784 - ITAT DELHI has been restored to the file of the AO by the Tribunal, therefore, respectfully following the decision of the Tribunal in assessee's own case for AYs 2012-13 and 2013-14, we restore the issue to the file of the AO for fresh adjudication in accordance with the directions of the Tribunal for AY 2012-13 and 2013-14.

Issues Involved:
1. Disallowance of depreciation under Section 32(1) read with Section 43(1) of the Income Tax Act.
2. Treatment of excise duty refund as a revenue receipt and its impact on the cost of plant and machinery.

Issue-wise Detailed Analysis:

1. Disallowance of Depreciation:
The Revenue challenged the CIT(A)'s decision to delete the addition of ?2,82,79,733/- made on account of disallowance of depreciation under Section 32(1) read with Section 43(1) of the Income Tax Act. The AO had disallowed the depreciation on the grounds that the assets were acquired out of government grants, specifically excise duty exemptions, which were accounted as deferred government grants by the de-merged company, M/s. Dharampal Satyapal Ltd. According to the AO, the actual cost of such assets should be nil as per Explanation 10 to Section 43(1) of the Income Tax Act, since the cost was met by the Central Government. Consequently, the AO recomputed the depreciation by reducing the actual cost of the assets by ?55,72,52,172/-, leading to a disallowance of ?2,82,79,733/-.

The CIT(A) deleted the disallowance by relying on the decisions of his predecessor for AYs 2012-13 and 2013-14, which were based on the Supreme Court's ruling in CIT vs. Meghalaya Steels Ltd. and the Gujarat High Court's decision in Alpha Lab vs. ITO. These judgments held that excise duty refunds are revenue receipts and cannot be reduced from the cost of assets under Section 43(1).

2. Treatment of Excise Duty Refund:
The Revenue argued that the CIT(A) erred in holding that the excise duty refund, being a revenue receipt, cannot be reduced from the cost of plant and machinery. The AO contended that the excise duty refund should be considered as a government grant that directly reduced the cost of the assets, thus affecting the depreciation calculation. The CIT(A), however, followed the Supreme Court's decision in CIT vs. Meghalaya Steels Ltd., which classified excise duty refunds as revenue receipts forming part of business profits and gains, not as capital subsidies that would reduce the asset cost.

Tribunal's Decision:
The Tribunal noted that the CIT(A) had followed the order of his predecessor for AYs 2012-13 and 2013-14, which had been restored to the AO by the Tribunal for fresh adjudication. The Tribunal directed the AO to re-examine the issue in light of the directions given in the earlier years' orders, specifically considering the Supreme Court's decision in Meghalaya Steels Ltd. and the ITAT's decision in Abhisar Buildwell Pvt. Ltd. The Tribunal emphasized that the AO should examine whether the depreciation was claimed or considered in the preceding years and decide the issue accordingly.

The appeals for both AY 2014-15 and AY 2015-16 were allowed for statistical purposes, and the matters were restored to the AO for fresh adjudication, ensuring that the assessee is given adequate opportunity to present their case.

Conclusion:
The Tribunal restored the issue of disallowance of depreciation and the treatment of excise duty refund to the AO for fresh adjudication, following the directions given in the earlier years' cases. The AO is to re-examine the facts and apply the relevant judicial precedents to determine the correct treatment of depreciation and excise duty refunds.

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