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TMI Blog2015 (1) TMI 704X X X X Extracts X X X X X X X X Extracts X X X X ..... acts in holding that depreciation not claimed for by the assessee, cannot be allowed as a deduction despite the introduction of the concept of block assets. Decided in favour of assessee. - TAX APPEAL NO. 93 of 2000 - - - Dated:- 17-12-2014 - MR. KS JHAVERI AND MR. K.J.THAKER, JJ. FOR THE APPELLANT : MR KM PARIKH, ADVOCATE FOR THE RESPONDENT : MR SN SOPARKAR, ADVOCATE JUDGEMENT Per: K J Thaker: 1. By way of this appeal, the Revenue has challenged the judgment and order dated 6.3.2000 passed by the Income Tax Appellate Tribunal, Ahmedabad Bench C in ITA No. 1261/Ahd/1999 for AY 1996-97. 2. At the out-set, it is to be noted that when the present appeal was preferred by the Revenue, the Revenue felt that the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... antial question of law arises in this appeal as the Tribunal has rightly decided the appeal in view of the ratio laid down by the Hon'ble Supreme Court in the case of Mahendra Mills (supra). It is also pertinent to note that the Tribunal had taken similar view in the case of Sun Pharmaceutical Industries v. Deputy Commissioner of Income tax (Assessment) in I.T.A. Nos. 2355/A/98, 1261 and 1190/A/89 for the Assessment Years 1995-96 and 1996-97 and against the said view taken by the Tribunal in the case of Sun Pharmaceutical Industries (supra), the revenue had not filed an appeal though an appeal has been filed by the revenue in the said case on other points. It has been submitted by learned advocate Shri Qureshi that the revenue proposes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Whether, the Appellate Tribunal is right in law and on facts in holding that depreciation not claimed for by the assessee, cannot be allowed as a deduction despite the introduction of the concept of block assets? 6. We have heard the learned counsels appearing for the parties and considered the submissions. Mr. Soparkar learned counsel at the outset submitted that the question no. 2 cannot be reagitated as it is covered by the decision of this Court in Tax Appeal No. 175 of 2001 as well as Tax Appeal No. 2/2002 decided on 17.11.2014. However, Mr. Parikh learned counsel for Revenue submitted that the question of law as raised in this case was never decided in those matters, and therefore, he requested that the question of law be decid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the appellant has placed reliance on the decision of the Full Bench of Bombay High Court Plastiblends India Limited v. Additional Commissioner of Income-tax Ors., reported in [2009] 318 ITR (Bom)[FB] and submitted that this appeal should be allowed. 11. As far as this aspect is concerned, the finding of fact recorded by the CIT(Appeals) which reads as under: 3. The contentions of the appellant and the reasons given by the Assessing Officer in allowing full depreciation are considered. The decision of CIT v. Mother India Refrigeration (P) Ltd. (supra) relied on by the assessing Officer is not applicable in the instant case as the issue as to whether depreciation is optional or not was never before the Supreme Court. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar of CBDT 29 D (XIX-4) of 1965 (F. No. 45/239/65-ITJ), dated 31.8.1996) directed that, where the required particulars have not been furnished by the assessee and no claim for depreciation has been made in the return, the Income-Tax Officer should estimate the income without allowing depreciation allowance. Respectfully following the decision of the Gujarat High Court, I hold that the depreciation is optional to the assessee and once he chooses not to claim it, the Assessing Officer cannot allow it while computing the income. Further, once the depreciation is option, applying the same ratio of Gujarat High Court and other Courts, it will be optional for block of assets also. It is not necessary that the depreciation is allowable not allow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... service or develops an industrial park [or develops a special economic zone referred to in clause (iii) of subsection (4)] or generates power or commences transmission or distribution of power [or undertakes substantial renovation and modernisation of the existing transmission or distribution lines. Sec: 80HHC: [(1) Where an assessee, being an Indian company or a person (other than a company) resident in India, is engaged in the business of export out of India of any goods or merchandise to which this section applies, allowed, in computing the total income of the assessee, [a deduction to the extent of profits, referred to in subsection(1B),] derived by the assessee from the export of such goods or merchandise. 13. The su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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