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TMI Blog2017 (1) TMI 1002X X X X Extracts X X X X X X X X Extracts X X X X ..... d and it reads as under: "32. Depreciation.--(1) In respect of depreciation of-- (i) buildings, machinery, plant or furniture, being tangible assets; (ii) know-how, patents, copyrights, trade marks, licences, franchises or any other business or commercial rights of similar nature, being intangible assets acquired on or after the 1st day of April, 1998. owned, wholly or partly, by the assessee and used for the purposes of the business or profession, the following deductions shall be allowed-- (i) in the case of assets of an undertaking engaged in general or generation and distribution of power, such percentage on the actual cost thereof to the assessee as may be prescribed; (ii) in the case of any block of assets, such percentage on the written down value thereof as may be prescribed: Provided that no deduction shall be allowed under this clause in respect of- (a) any motor car manufactured outside India, where such motor car is acquired by the assessee after the 28th day of February, 1975, but before the 1st day of April, 2001, unless it is used- (i) in a business of running it on hire for tourists; or (ii) outside India in his business or profession in another ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or furniture, being tangible assets or know-how, patents, copyrights, trademarks, licences, franchises or any other business or commercial rights of similar nature, being intangible assets allowable to the predecessor and the successor in the case of succession referred to in clause (xiii), clause (xiiib) and clause (xiv) of section 47 or section 170 or to the amalgamating company and the amalgamated company in the case of amalgamation, or to the demerged company and the resulting company in the case of demerger, as the case may be, shall not exceed in any previous year the deduction calculated at the prescribed rates as if the succession or the amalgamation or the demerger, as the case may be, had not taken place, and such deduction shall be apportioned between the predecessor and the successor, or the amalgamating company and the amalgamated company, or the demerged company and the resulting company, as the case may be, in the ratio of the number of days for which the assets were used by them. Explanation 1-- Where the business or profession of the assessee is carried on in a building not owned by him but in respect of which the assessee holds a lease or other right of occupan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of which is allowed as a deduction (whether by way of depreciation or otherwise) in computing the income chargeable under the head "Profits and gains of business or profession" of any one previous year. (iii) in the case of any building, machinery, plant or furniture in respect of which depreciation is claimed and allowed under clause (i) and which is sold, discarded, demolished or destroyed in the previous year (other than the previous year in which it is first brought into use), the amount by which the moneys payable in respect of such building, machinery, plant or furniture, together with the amount of scrap value, if any, fall short of the written down value thereof: Provided that such deficiency is actually written off in the books of the assessee. Explanation--For the purposes of this clause,-- (1) "moneys payable" in respect of any building, machinery, plant or furniture includes-- (a) any insurance, salvage or compensation moneys payable in respect thereof; (b) where the building, machinery, plant or furniture is sold, the price for which it is sold, so, however, that where the actual cost of a motor car is, in accordance with the proviso to clause (1) of sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... set: Provided further that the undertaking specified in clause (i) of sub-section (1) of section 32 of the Act may, instead of the depreciation specified in Appendix IA, at its option, be allowed depreciation under sub-rule (1) read with Appendix I, if such option is exercised before the due date for furnishing the return of income under sub-section (1) of section 139 of the Act, (a) for the assessment year 1998-99, in the case of an undertaking which began to generate power prior to 1st day of April, 1997; and (b) for the assessment year relevant to the previous year in which it begins to generate power, in case of any other undertaking : Provided also that any such option once exercised shall be final and shall apply to all the subsequent assessment years. (2) Where any new machinery or plant is installed during the previous year relevant to the assessment year commencing on or after the 1st day of April, 1988, for the purposes of business of manufacture or production of any article or thing and such article or thing-- (a) is manufactured or produced by using any technology (including any process) or other know-how developed in, or (b) is an article or thing invente ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5% in respect of machinery and plant and other than those covered by sub-items (2), (3) and (8) below. Learned counsel for Revenue submitted that in view of aforesaid amendment depreciation only to the extent of 15% is admissible.
7. Sri Pradeep Agarwal, learned counsel appearing for respondent submitted that this issued was never raised before Tribunal and hence cannot be allowed to be raised for the first time before this Court.
8. However, we find that if statute permitting depreciation at a particular rate itself has been amended and such amendment is applicable to disputed period of assessment, it is a substantial question of law and can be raised before this Court but since it may also involve some factual investigation, we find it appropriate to remand this matter to Tribunal to look into this aspect and pass a fresh order in accordance with law.
9. In view of above, appeal is allowed partly. Impugned order dated 30.04.2015 is modified only to the extent that parties shall be allowed to address Tribunal on aforesaid question and after giving opportunity of hearing to both parties, Tribunal shall decide such question in accordance with law, expeditiously. X X X X Extracts X X X X X X X X Extracts X X X X
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