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TMI Blog2010 (2) TMI 805X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal by the revenue is directed against the order of the CIT(Appeals) dated 12.6.2009. 2. Ground Nos. 1, 7 and 8 are general in nature, as such it is not called for specific dealing and they are dismissed. 3. Ground Nos. 2, 3 and 4 are in fact confined to one issue and it is against the order of the CIT(Appeals) in holding that the AO was not empowered to allow the depreciation which was not claimed in the revised return of income relying upon the decision of the Hon'ble Supreme Court in the case of CIT vs. Mahendra Mills reported in 243 ITR 56. It is the stand of the revenue that the decision of the Hon'ble Supreme Court in the case of Mahendra Mills (supra) related to the assessment year 1974-75 prior to the deletion of sub-section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during the year which are Rs.1,87,25,57,637 and Rs.1,89,69,48,814 respectively in the first and second return filed. The difference represents amounts sought to be capitalized. The two statements of income with the return show the income from other sources as under: Return of Income filed on 3 0.12.99 Return of Income filed on 3 0.3.2001 Total income Rs.2,02,29,082 Total Income Rs.59,23,709 Tax payable. NIL Tax payable Rs.20,73,298 Refund claim Rs.31,52,550 Refund claim Rs.10,79,252 It looks from the above that the assessee by filing a second return of Income limits his refund claim to the difference between the same, which apparently, it wants to be in favour of revenue. I have considered the two returns filed as above. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for depreciation in subsequent years. A critical examination of the so-called Revised Return of Income indicate the following. a) The assessee had unabsorbed depreciation right from A.Y. 1997-98 to 1999-2000 aggregating to Rs.1,97,28,66,330 as per Return of Income filed on 30.12.1999, out of which for A.Y. 1999-2000 it is Rs.61,68,68,632/-. Because of no positive income available and also considering the capital assets that are acquired, there could be no possibility of getting depreciation adjusted in the immediately succeeding years, visualizing the remote chances of getting the unabsorbed depreciation in the such subsequent years, in view of the limitation of 8 years fixed, the so called planning device on an afterthought and a tax p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision by which depreciation could be fictionally deemed to have been claimed and granted. In other words, Explanation 5 ensured that it was no longer discretionary but mandatory for the assessee to claim depreciation w.e.f. 1.4.2002. The assessee made further submissions which is recorded by the CIT(Appeals) vide pages 6 and 7, which reads as under: f) Reliance was also placed on CBDT Circular No.68 dated November 16, 1971 wherein the Board had clarified that upon subsequent interpretation of law by the Supreme Court the issue should be treated as a mistake apparent from record and therefore, a petition for rectification of mistake u/s 154 should be entertained. Reliance in this regard was also placed on Hon'ble Supreme Court decision in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation, non-claim of depreciation and interest re-classification was absolutely tenable in law further, based on the ratio of the above judicial precedents, once a valid revised R/I was filed by the appellant, the original R/I filed by the appellant must be taken as having been withdrawn. In this connection, reliance was placed on the following decisions wherein it was held that when a revised R/I was filed, it completely affected and obliterated the original R/I and therefore, it was only the revised R/I that had to be taken into account for the purpose of making assessment. - Shree Vallabh Glass Works Ltd. (212 ITR 433)(Guj) - Machine Tool Corporation of India Ltd. (201 ITR 101)(Kar) In the instant case, the appellant asserted that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the case of CCIT and Anr. vs. Machine Tools Corporation of India Ltd. 201 ITR 101(Kar), the Hon'ble Karnataka High Court held that allowing of depreciation is subject to provisions of section 34 and if the assessee chooses not to furnish particulars, it is not mandatory for ITO to impose the benefit. If the assessee withdrew claim of depreciation in revised return, ITO cannot allow depreciation adverting to particulars furnished in original return. In the light of the above decisions, we are of the view that there is no case made out by the revenue to interfere with the order of the ld. CIT(Appeals). The grounds fail and are dismissed. 9. Coming to grounds 4 and 5, according to revenue, the CIT(Appeals) failed to appreciate that the in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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