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TMI Blog2015 (9) TMI 746X X X X Extracts X X X X X X X X Extracts X X X X ..... that depreciation on Tools, Moulds with Shoe plates & Shoe Lasts is allowable @ 30%. The claim is this that this expense is revenue expenditure. In our considered opinion, whether expenditure is capital expenditure or revenue expenditure is not an issue of apparent mistake, which can be decided u/s 154. This is admitted position that the assessee has itself treated this expenditure as capital expenditure and claimed depreciation thereon @ 30%. The correct rate of depreciation can be an issue of apparent mistake and it can be decided in the proceedings u/s 154 but whether the expenditure is capital or revenue is a highly debatable issue and such claim cannot be entertained and decided in 154 proceedings. Therefore, we find no merit in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... For The Respondent : Shri R. K. Ram, Sr. DR ORDER PER A. K. GARODIA, A.M. There are two appeals of the assessee for A.Y. 2008 09, out of which, one appeal is arising out of proceedings u/s 154 and the second appeal is arising out of assessment proceedings u/s 143 (3). The third appeal is also filed by the assessee for A.Y. 2009 10 and this appeal is arising out of assessment proceedings u/s 143 (3). 2. All these three appeals were heard together and are being disposed of by this common order for the sake of convenience. 3. First, we take up the appeal of the assessee for A.Y. 2008 09 arising out of proceedings u/s 154. 4. The Grounds raised are as under:- 1. Because the CIT (Appeals) has erred on facts and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Paper Book. c) CIT vs. Mahalakshmi Textile Mills, 60 ITR 710 (SC) 5. Learned DR of the revenue supported the orders of the lower authorities. 6. We have considered the rival submissions. We find that in the order passed by the A.O. u/s 154 on 15.09.2011, it is noted by the A.O. that the assessment was completed u/s 143 (3) on 03.12.2010. He also observed that I mistake apparent from record was noticed that the assessee had claimed depreciation on Tools, Moulds with Shoe plates, Shoe Lasts @ 30% while depreciation should be allowed @ 15%. When the A.O. issued show cause notice to the assessee in this regard, it was submitted by the assessee that the assessee wrongly claimed depreciation on this item but in fact, it is revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, the expenses is not for replacement of moulds because if the existing moulds are being replaced, there will be income on account of sale of scrap generated out of discarded/damaged moulds or if the scrap is not sold, value of closing stock of scrap is to be taken into account. The assessee has not shown that any such income on account of sale or closing stock of scrap was accounted for by the assessee. It means, the expenditure in the present case is not for replacement of moulds. Hence, this judgment is not applicable. 8. The second judgment is of Hon ble Delhi High Court rendered in the case of CIT vs. Sunbeam Auto Ltd. (Supra). In that case, the tribunal noted as per Para 5 of that judgment that the moulds and Dies did not have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of the assessee that the moulds and dies are frequently replaced. Hence, this judgment is also not applicable. 10. In the result, this appeal of the assessee is dismissed. 11. Not, we take up the second appeal of the assessee for A.Y. 2008 09 arising out of proceedings u/s 143 (3). 12. As per Grounds No. 1 to 4, the only one grievance of the assessee is about not allowing deduction u/s 80IB of the I. T. Act in respect of Duty Draw Back income of ₹ 153,25,958/-. 13. Both sides agreed that this issue is covered against the assessee by the judgment of Hon'ble Apex Court rendered in the case of Liberty India, 317 ITR 218. Respectfully following this judgment, we decline to interfere in the order of CIT (A) on this is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs, the assessee has to refund the subsidy. Now we are in the year 2015 and this is not the case of the assessee that the assessee has refunded the subsidy as per this clause and hence, in our opinion, this clause has no relevance in the facts of the present case. Hence, on this issue also, we do not find any reason to interfere in the order of CIT (A). 17. In the result, this appeal of the assessee is also dismissed. 18. Not, we take up the appeal of the assessee for A.Y. 2009 10 arising out of proceedings u/s 143 (3). 19. As per Grounds No. 1 to 2, the only one grievance of the assessee is about not allowing deduction u/s 80IB of the I. T. Act in respect of Duty Draw Back income of ₹ 221,21,269/-. As per Grounds No. 3 to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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