9911796707
TMI Blog1992 (2) TMI 179X X X X Extracts X X X X X X X X Extracts X X X X ..... o urge that the CIT(A) erred in upholding the order of the ITO withdrawing the depreciation on truck allowed in the original assessment and he has also erred in confirming the action of the ITO in restricting the depreciation on plant and machinery to 10% as against 15% allowable according to Income-tax Rules. 2. The assessee is a registered firm carrying on the business of extraction of oil and sale thereof. While computing the total income for the assessment year 1983-84 for which the accounting year ended on 15-11-1982, the ITO had allowed, inter alia, depreciation on truck at 30 per cent on the cost thereof. He has also allowed depreciation on plant and machinery at 15 per cent. Later on, by his rectificatory order dated 10-3-1987, he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s mere change of opinion. 5. At the time of hearing, Shri Musale, learned representative of the assessee reiterated the contention that the withdrawal of depreciation on truck was mere change of opinion and once the ITO having granted depreciation, it was not open to him to withdraw the same under section 154. As regards depreciation relating to plant and machinery, though a ground was taken in the grounds of appeal, no argument was advanced on it. 6. The learned departmental representative, on the other hand, justified the order of the CIT(A) by referring to the judgment of the Bombay High Court in the case of CIT v. Shri Someshwar Sahakari Sakhar Karkhana Ltd. [1989] 177 ITR 443 wherein the judgment of the Punjab Haryana High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not claimed depreciation allowance nor furnished prescribed particulars thereof as required by law. The fact that the expenses incurred were also capitalised shows that the assessee intended to claim depreciation on the total cost in the subsequent assessment year and not in the year under consideration. In view of these facts, the ratio of the Bombay High Court in the case of Shri Someshwar Sahakari Sakhar Karkhana Ltd. directly governs the issue at hand. The Bombay High Court considered similar situation in that case and held that section 34(1) obliges the ITO to allow deduction referred to in section 32 only if the prescribed particulars have been furnished. According to their Lordships, the provisions contemplated a claim or applicatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the truck. In this connection, it is relevant to observe that the case of the assessee is no better than the case before their Lordships of the Bombay High Court and Punjab Haryana High Court, inasmuch as the assessee has not claimed depreciation at all nor furnished prescribed particulars at the time of original assessment proceedings. It is not known whether the assessee had claimed depreciation in the next assessment year 1984-85 on the truck on the cost of Rs. 2,29,797.57 or not. That is a different aspect altogether. If the assessee had claimed depreciation for that year on the total cost, the intention of the assessee to claim depreciation in that particular year will be reinforced and confirm the conclusion drawn by us. There is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act claimed it as seen from the Footnote to the fixed assets forming part of the balance-sheet as on 15-11-1982 furnished by the assessee. What the assessee could not get by way of front door, he could not get it through back door. 11. Another aspect which is also required to be taken into account pertains to the second ground relating to restriction of depreciation on plant and machinery in the rectificatory order. In this connection, it could be at once stated that this ground does not arise from the order of the CIT(A), vide para 2 of his appellate order dated 8-3-1988, wherein it has been clearly stated that " no ground was raised regarding other action withdrawing Rs. 6,193 on plant and machinery ". Therefore, this ground does not ar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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