9911796707
TMI Blog2002 (11) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... - 21-11-2002 - Judge(s) : A. R. DAVE., K. M. MEHTA. JUDGMENT The judgment of the court was delivered by A.R. DAVE J.-At the instance of the Revenue, the following questions., have been referred to this court for its opinion by the Income-tax Appellate Tribunal, Ahmedabad Bench "B", under the provisions of section 256(1) of the Income-tax Act, 1961 (hereinafter referred to as "the Act"): "1. Whether, on the facts and in the circumstances of the case, and particularly when the assessee had agreed that depreciation claim will not be allowed for the period of five months, i.e., for the assessment year 1982-83, it was open to the assessee to claim depreciation on the ground that the condition imposed was illegal? 2. Whether, when in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dgment delivered in the case of J.K. Synthetics Ltd. v. O.S. Bajpai, ITO [1976] 105 ITR 864 (All) to substantiate its case before the Income-tax Officer. The Assessing Officer did not allow the amount of depreciation for the said period of five months and, therefore, being aggrieved by the assessment order, the assessee filed an appeal before the Commissioner of Income-tax (Appeals). The Commissioner of Income-tax (Appeals) dismissed the appeal by observing that if the assessee was aggrieved by the imposition of the condition, the assessee should have either challenged the validity of the order imposing the condition by filing an appeal or by filing a writ petition before the High Court. In the circumstances, the Commissioner of Income-t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im depreciation. It would be neither just nor legal on the part of the Income-tax Officer to impose a condition which would be violative of the provisions of the Act, or, in other words, which would deprive the assessee of the benefits of exemptions or deductions, which the assessee is entitled to under the provisions of the Act. The assessee has rightly relied upon the judgment delivered in the case of J.K. Synthetics Ltd. [1976] 105 ITR 864 (All), wherein it has been held that the condition, which might be imposed by the authority, should be legal and reasonable. In our opinion, when a discretionary power has been given to an authority like the Income-tax Officer or an Assessing Officer, he should exercise his discretionary power in a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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