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TMI Blog2014 (7) TMI 1001X X X X Extracts X X X X X X X X Extracts X X X X ..... llate Tribunal is right in law and on facts in directing the Assessing Officer to allow depreciation on enhanced value to the successor firm? 2.Whether the Appellate Tribunal is right in law and on facts in allowing the aforesaid claim observing that it was not clear from the assessment order and the Appellate order that the Assessing Officer had obtained approval of Deputy Commissioner before applying explanation 3 of the Section 43(1) particularly when the instant case the Assessing Officer was Inspecting Assistant Commissioner (Assessment)? 3.Whether, the Appellate Tribunal is right in law and on facts in holding that the extra shift allowance, if allowable should be based on the value adopted by the successor firm and not the written ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccessor firm. The Tribunal observed that it was not clear from the assessment order that the Assessing Officer had obtained approval of Dy. Commissioner before applying the Explanation 3 of Section 43(1). The Tribunal further held that the extra shift allowance if allowable should be based on the value adopted by the Successor firm and not the written down value as directed by the CIT(A). 2.3. The facts in R.A. No.249/AHD/1997 are that the assessee had filed two returns of income, one on 30.6.1981 declaring income of Rs. 19,110/- for the period upto 31.12.1979 and another showing loss of Rs. 2,88,610/- for the period from 1.1.1980 to 7.11.1980. The Assessing Officer determined the total income for the first period at Rs. 33,050/and at Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Dy. Commissioner before applying the Explanation 3 of Section 43(1). It is submitted that as such the issue was with respect to AY 1981-82 and as per the law prevailing prior to 1.4.1988 in Explanation 3 of Section 43(1) the approval of the Inspecting Assistant Commissioner was required to be obtained, which subsequently came to be substituted to Deputy Commissioner. It is submitted that in the present case and at the relevant time the AO himself was Inspecting Assistant Commissioner also and therefore, he himself was Inspecting Assistant Commissioner there was no question of any approval of himself. It is submitted that the aforesaid has not been considered by the learned Tribunal at all and without considering the aforesaid depreciati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the relevant time. It is required to be noted that prior to 1.4.1988 prior to word "Deputy Commissioner" came to be substituted in Explanation 3 of Section 43(1), it was "Inspecting Assistant Commissioner". Therefore, at the relevant time as per explanation 3 of Section 43(1) the previous approval of the "Inspecting Assistant Commissioner" was required to be obtained. In the present case, it so happened that AO himself was Inspecting Assistant Commissioner (Assessment). Under the circumstances, there was no question of obtaining the prior approval by the AO of "Inspecting Assistant Commissioner" as he himself was also "Inspecting Assistant Commissioner". It appears from the impugned order passed by the learned Tribunal that learned Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Under the circumstances, the aforesaid question referred to this Court is held against the revenue in favour of the assessee. The question referred to this Court pursuant to the order passed in RA No.249/AHD/1997 by directing i.e. Whether the Appellate Tribunal is right in law and on facts in directing the Assessing Officer to revise the calculation of penalty on the basis of direction to make two assessments for two periods is concerned, the same is consequential to the aforesaid question which is held to be against the revenue and in favour of assessee. Under the circumstances, the aforesaid question referred to this Court pursuant to the order passed in RA No. 249/AHD/1997 is held against the revenue in favour of assessee. With this, pre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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