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TMI Blog2021 (10) TMI 1269X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;ble ITAT was right in extending the benefit of Section 32(1)(iia) of the Act to the next Assessment year, when the Income-tax Act does not provide such carryover, thereby violating the legal principles of "Cassus omissus" which states that the Courts cannot compensate for what the legislature has omitted to enact ? 2. Respondent had preferred an appeal against order passed under Section 263 of the Income Tax Act, 1961 (the Act) on 10/6/2014 before the Income Tax Appellate Tribunal (ITAT). Respondent had challenged jurisdiction of the order passed under Section 263 of the Act as well as on merits of dis-allowance of additional depreciation under Section 32(1)(iia) of the Act. 3. Order under Section 143(3) of the Act was passed by the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Assessment Year 2010-2011 can no more be granted. 5. The judgment of Karnataka High Court in Rittal India (supra) has been considered by this Court in an unreported order in Pr. Commissioner of Income Tax-14 vs. M/s. Godrej Industries Ltd. Income Tax Appeal No.511/2016 Dated 24/11/2018 and this Court has followed the view expressed by the Karnataka High Court. This Court in Godrej Industries Ltd. (supra) has also relied upon the judgment of Madras High Court in Commissioner of Income Tax vs. T. P. Textiles Pvt. Limited,394 ITR 483 wherein Madras High Court has considered the additional proviso which was inserted to Section 32(1) (iia) of the Act and has also concurred with the view of the Madras High Court that said newly added third p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... up for consideration before the Division Bench of Karnataka High Court in Commissioner of Income Tax and Another v/s. Rittal India Pvt. Ltd., reported in 380 ITR 423. The Court, after referring to the statutoryprovisions, held and observed in para 8 as under:- "8:- The aforesaid two conditions, i.e., the undertaking acquiring new plant and machinery should be a new industrial undertaking, or that it should be claimed in one year, have been done away by substituting clause (iia) with effect from April 1, 2006. The grant of additional depreciation, under the aforesaid provision, is for the benefit of the assessee and with the purpose of encouraging industrialization, by either setting up a new industrial unit or by expanding the existing u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation is absolutely clear, that the assessee shall be allowed certain additional benefit, which was restricted by the proviso to only half of the same being granted in one assessment year, if certain condition was not fulfilled. But,that, in our considered view, would not restrain the assessee from claiming the balance of the benefit in the subsequent assessment year. The Tribunal, in our view, has rightly held, that additional depreciation allowed under Section 32(1) (iia) of the Act is a one-time benefit to encourage industrialization, and the provisions related to it have to be construed reasonably, liberally and purposively, to make the provision meaningful while granting the additional allowance. We are in full agreement with such obse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estricted to 50%. Such a situation as in the present case, was considered by the Division Bench of the Madras High Court in Commissioner of Income Tax v/s. Shri T. P. Textiles Pvt. Ltd., 394 ITR 483, the Court referred to the judgment of the Karnataka High Court in Rittal India Pvt. Ltd., (supra) as well as the addition of third proviso to clause (ii) of subsection 1 of Section 32 of the Act and observed as under: "10.1: The plain language of section 32(1)(iia) read along with relevant proviso would have us come to the conclusion that, there is no limitation in the assessee claiming the balance 10 per cent of additional depreciation in the succeeding assessment year. 10.2:- As a matter of fact, with effect from April 1, 20916, the ambig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was used for 180 days or more itxa-511- 2016 11.3:- In our opinion, as indicated above, the amendment is clarificatory in nature and not prospective, as is sought to be contended by the Revenue. The memorandum cannot be read in the manner, in which, the Revenue has sought to read it, which is, that the amendment brought in would apply only prospectively. 11.4:- We are, clearly, of the view that the memorandum, which is sought to be relied upon by the Revenue, only clarifies as to how the unamended provision had to be read all along. 11.5:- In any event, in so far as the court is concerned, it has to go by the plain language of the unamended provision, and then, come to a conclusion in the matter. As alluded to above, our view, is that, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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