2015 (10) TMI 1090

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..... ngaged in the business of manufacturing and selling industrial gases, imported, during the assessment year 1978-79, gas cylinders and the same were put to use in that year. In the assessment year 1978-79, the company originally claimed 100% depreciation on such gas cylinders, but subsequently filing the revised return, withdrew its claim for depreciation on various assets including there gas cylinders. The claim for depreciation on the said gas cylinders was subsequently made by the company in the previous years relevant to assessment years 1980-81, 1981- 82 and but the same was rejected by the assessing officer and the company also did not pursue this claim further. The company desired to claim depreciation in the assessment year 1984-85 a .....

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..... though the assessee has not made any claim for such depreciation. 2) Whether on the facts and circumstances of the case the assessee company could lawfully withdraw its claim for depreciation allowance by filing of a revised return and whether such revised return filed by the company can be treated it as a valid revised return within the meaning of section 139(5) of the I.T. Act, 1961 and the assessment can be made on the basis of the revised return". Mr.Khaitan, learned senior advocate appearing for the assessee, does not dispute that during the assessment year 1978-79, the assessee had taken the benefit of investment allowance under Section 32A, which provides that no deduction shall be allowed under Section 32A in respect of "any m .....

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..... 2001 The learned Tribunal has held that "since the assessee has not been actually allowed the deduction of depreciation under the provisions of the I.T. Act the question of assessment U/s. 41(2) would not arise. However, it has been brought to our notice that the question of allowability of the depreciation in the appeal for assessment year 1984-85 was rejected by the Tribunal and the matter has been referred to the High Court in R.A. No.526 (Cal)/1989 for that assessment year. We, accordingly, direct that if the assessee has been allowed any depreciation in subsequent proceeding in respect of these assets the charge of the profit U/s. 41(2) and working thereof be made in accordance therewith. With these directions, we allow the appeal of .....

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