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TMI Blog2013 (12) TMI 297X X X X Extracts X X X X X X X X Extracts X X X X ..... nbsp; "1. The ld. CIT(A) has erred in holding that since block of assets that of (i) office building (5%), (ii) Factory buildings (10%), (iii) roads and culvers (5%), (iv) water system, drainage and sewerage (5%), (v) office appliance (25%) have not been put to use depreciation is not to be allowed. 2. Ld. CIT(A) has erred on facts in holding that disallowance depreciation of all assets have been made in AY 2004-05 as well. 3. The appellant craves the consent to add, modify, amend or delete any of the ground of appeal at the time of hearing." Grounds in ITA No.2788/Del/2012:- "1. The ld. CIT(A) has erred on law and on fact in making disallowance of depreciation o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disallowed. That the assessee accepted the view of the Department taken in AY 2004-05 and in the year under consideration, did not claim depreciation on plant & machinery but claimed on other assets which were allowed by the Assessing Officer in AY 2004-05. However, in the year under consideration, the Assessing Officer, taking a different view than the view taken in AY 2004-05 disallowed depreciation on all the assets. He, therefore, submitted that the disallowance of depreciation should be deleted. 4. The learned DR, on the other hand, relied upon the orders of the authorities below. He stated that from the copy of the assessment order for AY 2004-05 filed by the assessee, it is evident that the Assessing Officer disallowed the depreciat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order for the year under consideration. In view of the above, we deem it proper to set aside the orders of the authorities below on this point and restore the matter to the file of the Assessing Officer. We order accordingly and direct the Assessing Officer to allow depreciation on the assets on which depreciation was allowed in AY 2004-05. Needless to mention that he will allow adequate opportunity of being heard to the assessee while giving effect to this order. ITA Nos.3318/Del/2012 & 2045/Del/2012 :- 6. The only ground raised in these appeals by the Revenue read as under:- Ground in ITA No.3318/Del/2012 :- "Whether ld. CIT(A) was correct on facts and circumstances of the case and in law in deleting the disal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merely because the Government stated that any person who did not opt for VSS would be retrenched will not make the scheme involuntary. He, therefore, submitted that on the facts of the case, Section 35DDA was clearly applicable. 8. The learned counsel for the assessee, on the other hand, relied upon the order of the learned CIT(A) and stated that the Government has taken the decision to close the business of manufacturing of fertilizer. Therefore, the scheme of VSS was mandatory in nature and not voluntary. If any employee had not opted for VSS, then he would have been compulsorily retrenched. Thus, the scheme was compulsory and not voluntary. Therefore, Section 35DDA was not applicable. He further submitted that under similar scheme, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... luntary retirement. 11. In the case of the assessee, there is no dispute that during the previous year relevant to the assessment year under consideration, the assessee had incurred the expenditure by way of payment to its employees. It is also not in dispute that the payment was under the scheme framed by the employer. Thus, there is no dispute with regard to fulfillment of condition Nos.(i) and (ii). The only dispute by the assessee is that the scheme was not voluntary but compulsory in nature. Though the scheme has not been placed before us but by the name of the scheme "Voluntary Separation Scheme", it appears that the same is voluntary and not compulsory. Moreover, in the order of learned CIT(A), following finding of fact has been rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r year, the Revenue itself has allowed the deduction. However, the copy of the assessment order of the earlier years has not been placed before us and we do not know whether the applicability of Section 35DDA was considered in those years. In the year under consideration, the applicability of Section 35DDA was considered by the Assessing Officer and he directed the allowance of deduction as per Section 35DDA. After considering the facts of the year under appeal and legal position, we find that Section 35DDA is squarely applicable in the assessment year 2007-08. We, therefore, reverse the order of learned CIT(A) on this point and direct the Assessing Officer to allow deduction as per Section 35DDA. As a consequence, we also direct the Assess ..... X X X X Extracts X X X X X X X X Extracts X X X X
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