9911796707
TMI Blog2005 (11) TMI 166X X X X Extracts X X X X X X X X Extracts X X X X ..... income on 15-10-2001 declaring nil income. It has a manufacturing unit located in the Union Territory of Daman, which is a Backward Union Territory as specified in Schedule VIII of the IT Act. The income derived from the manufacturing unit is eligible for deduction under section 80-IB of the Act @ 100 per cent of the income of such manufacturing unit for a period of five years and then restricted to 25 per cent. The year under consideration is the filth year of manufacturing activity. The assessee did not claim depreciation on fixed assets for the year under consideration though it has claimed the depreciation for the earlier years except for the assessment year 2000-01. In the opinion of the Assessing Officer, by not claiming depreciation it has not forgone its right to claim the depreciation and started claiming depreciation from sixth year on the original cost of the assets when the deduction is limited to 25 per cent of the eligible income of the assessee. By adopting this modus operandi he held that the assessee tried to reduce the tax liability from sixth year. This type of modus operandi, if accepted will be an injustice to the honest taxpayers, who are still claiming depre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessees to deceive the exchequer by avoidance of taxes by using dubious methods under the colour of tax planning. This type of device is adopted by certain Industrial Undertakings run by individuals and firms because they are not required to prepare profit and loss account as provided for the companies in the Companies Act. As regards the Mahendra Mills' case, he observed in a case relating to assessment year 1974-75, i.e., prior to 1-4-1988. The section under section 32 under which the depreciation is allowable has been amended w.e.f. 1-4-1988 and it was noticed by the Supreme Court in the judgment itself by stating that "section 32 has since been amended by Taxation Laws (Amendment and Miscellaneous Provisions) Act, 1986 w.e.f. April 1, 1988. However, answer to question remains of substantial importance as various matters are stated to be pending in the High Court relating to the assessment year prior to April 1, 1988". He, therefore, observed that the Supreme Court has decided the issue before them for the assessment year prior to 1-4-1988 and this decision cannot be applied for the assessment year starting from 1-4-1988 as not only the provisions of section 32 have been a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich the depreciation is allowed. In Mahendra Mills' case, the issue regarding special deduction under Chapter VI-A was absent whereas in Cambay Electric Supply Industrial Co. Ltd. 's case, the issue involved was computation of income where special deduction was claimed. The contention of the counsel is thus not convincing and acceptable. He then referred to the decision of Bombay High Court in Indian Rayon Corpn. Ltd.'s case. Wherein it was held that "profits and gains of a newly established undertaking, therefore, have got to be computed as per provisions of section 29 to section 43A and if the assessee claims relief under Chapter VI-A of the Act, then it is not open to the assessee to disclaim depreciation allowance. This is because Chapter VI-A is an independent code by itself for computing these special types of deductions." The jurisdictional High Court thus decided that the assessee cannot exclude depreciation allowance while computing profits derived from a newly established undertaking. Referring to Explanation 5 to section 32(1) effective from 1-4-2002 which starts with the words 'For removal of doubts' which normally implies that the explanation is onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s required to give necessary information to be eligible for depreciation. In view of Supreme Court decision in CIT v. Mahendra Mills [2000] 243 ITR 56 there is no dispute that prior to 1-4-1988, the assessee was not entitled to depreciation if the particulars as required by section 34 were not furnished. He stated that though section 34 is omitted with effect from 1-4-1988, however, there is no change in the legal position with regard to choice of the assessee to claim or not to claim depreciation. The legal position has changed only with effect from 1-4-2002, when Explanation 5 to section 32 has been introduced by the Finance Act, 2001 providing for allowability of depreciation whether or not the assessee claim the deduction in this regard. The learned counsel contended that the assessment year under consideration is assessment year 2001-02 and, therefore, Explanation 5 to section 32 which is made effective from 1-4-2002 would not be applicable. In support of his contention that to claim or not to claim depreciation is choice of the assessee, he has relied upon the decisions of CIT v. Shri Someshwar Sahakari Sakhar Karkhana Ltd. [1989] 177 ITR 443 (Bom.); CIT v. Arun Textile ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dustrial Undertaking for allowing deduction under section 80-IB. The computation of income of the Industrial Undertaking would be mirror' image of the computation of 'profits and gains of business'. From the profits and gains of business, only the income which is not in the nature of income derived from Industrial Undertaking will be excluded and remaining income would be income derived from the Industrial Undertaking for computing deduction under section 80-IB. He reiterated that the profit cannot be differently computed for the purpose of section 80-IB and one has to determine income of Industrial Undertaking on the basis of the computation of income of the business under section 29 of the Act. 10. The learned counsel further contended that whenever allowability of depreciation is made compulsory, the Legislature has separately provided in the section itself. In this regard he referred to sections 10A, 10B, 44AD, 44AE, etc. Since there is no specific provision under- section 80-IB for allowability of depreciation, therefore, if the depreciation has been claimed by the assessee and it has been allowed while computing its business income, then only the same can be cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... advanced by Senior Advocate Shri S.N Soparkar, he further submitted that the income of the Industrial Undertaking included in the gross total income is to be considered for computing deduction under section 80-IB. If the income included in the gross total income is without allowing depreciation to the assessee, the same has to be considered for the purpose of section 80-IB. There cannot be separate computation of income for 80-IB. The learned counsel further submitted that even if two views are possible, the view which is favourable to the assessee, should be adopted. 13. Shri Ketan H Shah, who appeared for the assessee Siddh International [ITA No. 2520/Ahd./04] supported the contention that the claim of depreciation is optional and if the depreciation is not claimed by the assessee, the same cannot be thrust upon the assessee relying upon the following decision of the Tribunal in the case of Plastiblends India Ltd. v. ITO [2005] 94 ITD 295 (Mum.). 14. Shri D.H. Vadodaria, who appeared for the assessee Packers India - ITA Nos. 3258/Ahd/04 and Polynova Packers vide 3259/Ahd/04, submitted that omission of section 34 was not to take away the option of the assessee but because, with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he head 'Profits and gains of business' has to be adopted. He also stated that for the purpose of computing deduction under Chapter' VI-A, profits am I gains as computed under the Act is to be taken and not the commercial profit. In support of this contention, he relied upon the decisions in the cases of Cambay Electric Supply Industrial Co. Ltd.; Distributors (Baroda) (P.) Ltd. v. Union of India [l985] 155 ITR 120 (SC); Indian Rayon Corpn. Ltd. v. CIT [2003] 261 ITR 98 (Bom.); and Plastiblends India Ltd. v. ITO [2005] 94 ITD 295 (Mum.). He further stated that whenever the Legislature wanted to allow the depreciation whether or not it is claimed by the assessee, it has been specifically provided under the Act. In this regard he referred to sections 10A, 10B, 44AD, 44AE, etc. Since there is no similar deeming provision under section 80-IB, the depreciation, he submitted, cannot be thrusted upon the assessee. He further submitted that if two views are possible, the view which is in favour of the assessee should be adopted. In support of this contention, he relied upon the decisions of CIT v. Vegetable Products Ltd. [1973] 88 ITR 192 (SC); and CIT v. Thana Electricity Supp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In support of this contention, he relied upon the decisions in Cambay Electric Supply Industrial Co. Ltd.'s case; CIT v. Cadila Chemicals (P.) Ltd. [2003] 259 ITR 692 (Guj); Indian Rayon Corpn. Ltd. v. CIT [2003] 261 ITR 98 (Bom.); Vijay Industries v. CIT [2004] 270 ITR 175 (Raj.); CIT v. Gautam Sarabhai [1981] 129 ITR 133 (Guj.); Mettur Chemicals & Industrial Corpn. Ltd. v. CIT [1996] 217 ITR 768 (SC); Mandhana Exports (P.) Ltd.'s case and CIT v. Mahalaxmi Sugar Mills Co. [1986] 160 ITR 920 (SC). 20. The learned DR also stated that the decision of the Mumbai High Court in the case of CIT v. Shri Someshwar Sahkari Sakhar Karkhana Ltd. [1989] 177 ITR 443 as well as jurisdictional High Court in the case of CIT v. Arun Textile 'C' [1991] 192 ITR 700 (Guj.) were not for computing income of the Industrial Undertaking for the purpose of Chapter VI-A. Moreover when the above decisions were delivered, section 34 was applicable. Similar is the position with regard to the decision of the Supreme Court in the case of Mahendra Mills. He further submitted that in sections 10A, 10B, 44AD and 44AE, etc., there is a deeming provision for allowability of depreciation because there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning the allowance and computation of the deductions under this Chapter. Section 80A(1) provides that in computing the total income of an assessee, there shall be allowed from his gross total income, in accordance with and subject to the provisions of this Chapter, the deductions specified in sections 80C to 80U. Sub-section (2) put a limit to the effect that the aggregate amount of the deductions under this Chapter shall not, in any case, exceed the gross total income of the assessee. Section 80B(5) defines the 'gross total income' to mean the total income computed in accordance with the provisions of this Act, before making any deduction under this Chapter. 24. 'Total income' is defined in section 2(45) to be the total amount of income referred to in section 5, computed in the manner laid down in the Act. The manner is laid down in Chapter IV of the Act and it is computed under 5 heads, one of which is in Part 'D' dealing, with computation of business income consisting of sections 28 to 43D. Section 29 provides as to how the income from business is to be computed. It states that the income as referred in section 28 (i.e., the business income) shall be com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods as on the date of the transfer, then, for the purposes of the deduction under this section, the profits and gains of the Industrial Undertaking are to be computed as if the transfer, in either case, had been made at the market value of such goods as on that date. Similarly sub-section (7) provides for an adjustment in arriving at such profits where it appears to the Assessing Officer that, owing to the close connection between the assessee carrying on the business of the Industrial-Undertaking to which this section applies and any other person, or for any other reason, the course of business between them is so arranged that the business transacted between them produces to the assessee more than the ordinary profits which might be expected to arise in the business of the Industrial Undertaking, the Assessing Officer, in computing the profits and gains of the Industrial Undertaking or the hotel for the purposes of the deduction under this section, is to take the amount of profits as may be reasonably deemed to have been derived therefrom. 27. Another section involved is section 80-IA providing for deductions in respect of profits and gains from Industrial Undertakings or ente ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts and gains from certain Industrial Undertakings other than infrastructure development undertakings. Sub-section (1) of this section states that where the gross total income of an assessee includes any profits and gains derived from any eligible business referred to in sub-sections (3) to (11), (11A) and (11B), there shall, in accordance with and subject to the provisions of this section, be allowed, in computing the total income of the assessee, a deduction from such profits and gains of an amount equal to such percentage and for such number of assessment years as specified in this section. Here also the deduction is from such profits and gains as are included in Gross Total Income. Sub-section (13) incorporates the provisions contained in sub-section (5) and sub-sections (7) to (12) of section 80-IA are to, so far as may be, apply to the eligible business under this section. 29. We have noted that in all these sections the emphasis is on "a deduction from such profits and gains" and the question is as how to determine that? In our opinion that is to be computed as stated in section 80AB in accordance with provisions contained in the Act. Section 80AB provides as to how to find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciation and unabsorbed development rebate carried forward from earlier years are to be deducted from such profits of the Industrial Undertaking; and (ii) whether the balancing charge arising as a result of the sale of old machinery and building taxable under section 41(2) of the Act, was to be included in the profits and gains attributable to the Industrial Undertaking for the purpose of computing the deduction under section 80E. While dealing with the inclusion of profits from the sale of old machinery and building under section 41(2), their Lordships examined the scheme of the Act for arriving at the profit eligible for deduction under Chapter VI-A. It stated have held at page 91 of the Report as under: "First, compute the total income of the concerned assessee in accordance with the other provisions of the Act, i.e., in accordance with all the provisions except section 80E; secondly, ascertain what part of the total income so computed represents the profits and gains attributable to the business of the specified industry (here generation and distribution of electricity); and, thirdly, if there be profits and gains so attributable, deduct 8 per cent thereof from such profits an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for carry forward of depreciation) and section 33(2) (which provides for carry forward of development rebate for eight years). In other words, in computing the total income of the concerned assessee, items of unabsorbed depreciation and unabsorbed development rebate-will have to be deducted before arriving at the figure that will become exigible to the deduction of 8 per cent contemplated by section 80E(1)." 34. From the above it is evident that for the purpose of section 80E, the income is to be computed in accordance with the provisions of the Act. The business income is to be computed as per section 29 in accordance with sections 30 to 43A. As these sections include both sections 32(2)/33(2) dealing with the allowance of unabsorbed depreciation and unabsorbed development rebate and section 41(2) dealing with the balancing charge resulting from the sale of old machinery, the same are to be deducted or included as the case may be in the profits and gains of the Industrial Undertaking, to arrive at the profits eligible for deduction under section 80E. UNABSORBED CARRIED FORWARD DEPRECIATION VERSUS CURRENT DEPRECIATION 35. The contention of the assessees' counsel that in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sum of Rs. 1,08,282, then the net result would be a loss of Rs. 11,06,773. There would, thus, be no profit which would be eligible for the relief under section 84 of the Act. In order to avail of this relief, the submission of the appellant is that the development rebate should not be deducted in arriving at the business income because it had no bearing on the business profits of the Industrial Undertaking. In view of the decision of this Court in the case of Cambay Electric Supply Industrial Co. Ltd. v. CIT [1978] 113 ITR 84, this question is no longer res integra. Dealing with a similar provision, i.e., section 80E of the Act prior to its amendment by the Finance (No. 2) Act, 1967, this Court came to the conclusion that in computing the profits of the assessee for the purpose of the special deduction provided under section 80E, items of unabsorbed depreciation and unabsorbed development rebate, carried forward from earlier years, will have to be deducted before arriving at the figure from which the eight per cent contemplated by section 80E is to be deducted." 37. Thus, the Supreme Court in the above case has held that not only the carried forward development rebate but the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention and held that in allowing the deduction under section 80HH, the profits and gains of Industrial Undertaking should be computed by taking into consideration the unabsorbed depreciation, current depreciation and investment allowance. Thus, in this case, the Rajasthan High Court has also taken a similar view and held that not only unabsorbed depreciation but current year's depreciation is also to be reduced from the profits and gains of an Industrial Undertaking for computing the deduction under section 80HH. 40. This issue is also considered by the Bombay High Court in the case of Indian Rayon Corpn. Ltd., Though it seems to be case of allowability of unabsorbed depreciation of earlier years but consideration of the issue is not restricted to that and it dealt with issue in general for allowability of current depreciation as well. At page 102 of the Report, their Lordships have held as under: "The conspectus of the above sections show that income-tax is a charge on an assessee in respect of his total income computed in accordance with the provisions of the Act. However, in cases where the total taxable income comprises profits derived from newly established undertaking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the provisions of this Act has to be taken. Therefore, while computing eligible income effect to all the provisions of the Income-tax Act (excluding Chapter VI-A) is to be given. The provisions of Income-tax Act include section 32 which provides for deductibility of depreciation, therefore, the same was held to be deductible before making any deduction under section 80HH. The proposition laid down by their Lordships was general proposition and not restricted to the facts of the said case, is evident from the following observations at page 102 of the Report: "The reason is that Chapter VI-A deals with special types of income. The deduction of 20 per cent is not to be equated with depreciation, which is an ordinary expense. The idea under the above formula is that the assessee should not claim more than what he is entitled to. Take the case of section 80HHC under which deduction is given in commensuration with the foreign exchange, which the assessee brings in. Therefore, if an assessee claims deduction under section 80HHC, depreciation has got to be set off against the gross income. Our view is supported by the judgment of the Supreme Court in the case of Cam bay Electric Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above it is evident that the decision given by the Supreme Court was by taking into consideration the provisions of section 34. Their Lordships at page 58 of the Report, observed as under: "This question has been answered differently by various High Courts some in favour of the assessee and others in favour of the revenue. Section 32 has since been amended by the Taxation Laws (Amendment and Miscellaneous Provisions) Act, 1986, with effect from 1-4-1988. However, the answer to the question remains of substantial importance as various matters are stated to be pending in the High Courts relating to the assessment years prior to 1-4-1988." 46. Their Lordships made these observations quoting the section 32 as it stood prior to 1-4-1988. From the above it is evident that even as per the Supreme Court, the decision was applicable for the period prior to 1-4-1988, i.e., before the law was amended by Taxation Laws (Amendment and Miscellaneous Provisions) Act, 1986. Moreover in the above case the dispute was not with regard to the computation of income for the purpose of Chapter VI-A but with regard to normal computation of income under section 29. In the cases under consideration befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. We agree with the above submissions of the learned DR. When the assessee is entitled to certain deduction or exemption by claiming the deduction his income is reduced. Therefore, if such deduction is not claimed, the interest of the revenue is not prejudicially affected. Therefore, it could be the privilege of the assessee to claim such deduction or not to claim. However, the position is not same when the income of the assessee is to be determined for the purpose of computing deduction under Chapter VI-A. Under this Chapter either whole or a certain percentage of the income is exempt. Therefore, if the depreciation is not claimed, the resultant income would be more and consequently more deduction would be available to the assessee under Chapter VI-A. Certainly, therefore, it cannot be privilege of the assessee to claim more deduction than what he is entitled to. The assessee is entitled to deduction under Chapter VI-A on the basis of income computed in accordance with the provisions of this Act. Therefore, the income is to be computed taking into account all the provisions applicable while computing the business income including allowance of depreciation. By not claiming the dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... [1986] 160 ITR 920 as relied upon by the learned DR is more apt to resolve the controversy. In this case, the assessee-company sustained business loss in India of Rs. 20,30,006 for the assessment years 1956-57 and Rs. 9,11,728 for 1957-58 and it received dividends of Rs. 2,30,832 and Rs. 2,27,472 respectively, for those years in respect of shares held in a company in Pakistan. Under Item No. 8 of the Schedule to the Agreement for the Avoidance of Double Taxation between India and Pakistan read with Article IV thereof, the profits of the company were wholly taxable in Pakistan and the dividend was also wholly taxed in Pakistan. The question was whether in computing the total world loss under the Indian Income-tax Act, 1922, the dividends from the company in Pakistan could be deducted from business loss. The High Court, on a reference, held that the dividends from the Pakistan company cannot be set off and deducted from the Indian business loss under section 24(1) of the Act. On appeal by the assessee, the Supreme Court observed: "Held, reversing the decision of the High Court that the dividend received from the Pakistan company was deductible in arriving at the total world loss of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ari Sakhar Karkhana Ltd. [1989] 177 ITR 443. These two decisions are applied by Supreme Court in Mahendra Mills' case. The assessment years involved in both the cases before the Jurisdictional High Court and before the Bombay High Court were prior to amendment w.e.f. 1-4-1988 and further, in both the above cases the dispute was for computation of income as normal business income and not for the purpose of eligible income for computing deduction under Chapter VI-A. Therefore, both the above decisions like the case of Mahendra Mills of Supreme Court would not be applicable for the issue under consideration before us, wherein the issue is with regard to computation of income for the purpose of Chapter VIA. 56. The learned counsel for the assessees also relied upon the decision of the Ahmedabad Bench of the ITAT in the case of Uvifort Metalizers v. Dy. CIT [2001] 73 TTJ (Ahd.) 381, which is claimed to have been approved by the Hon'ble Jurisdictional High Court vide Tax Appeal No. 175 of 2001. He also contended that since this decision is approved by the Jurisdictional High Court, the same is binding upon the Tribunal in Ahmedabad. Copy of the decision of the Jurisdictional Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P.) Ltd. [1995] 211 ITR 690 (Guj.), wherein it was held that while granting special deduction under section 80M of the Act, the profits and gains of the business cannot be computed without reference to the provisions contained in sections 32 and 33. The third decision is in the case of Cadila Chemicals (P.) Ltd. wherein it is held that depreciation will have to be deducted before making any deduction under section 80HH. Thus, wherever the computation of eligible income for the purpose of deduction under Chapter VI-A is to be considered, the Jurisdictional High Court has consistently taken the view that all other provisions of the Income-tax Act including section 32 have to be considered. In view of above, either in the case of Uvifort Metalizers, the issue before the Jurisdictional High Court was for computation of normal income; or in any case if it was for the computation of profits and gains of the Industrial Undertaking for the purpose of Chapter VI-A, it was not brought to the knowledge of their Lordships. Be that as it may there is no decision on merit in the case of Uvifort Metalizers as the revenue's appeal was dismissed holding that no substantial question of law arise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to or from the eligible business. This aspect was considered by the Jurisdictional High Court in the case of Alembic Chemical Works Ltd. v. Dy. CIT [2004] 266 ITR 47 (Guj). In that case, the assessee-company claimed deduction under sections 80HH and 80-I in respect of the Industrial Undertaking, viz., Panpharma Division located in Panchmahal District. The entire production of Panpharma Division was transferred to main division which sold the same in the market. The Assessing Officer did not accept the profits and gains of Panpharma Division as shown in the accounts of the assessee. The working of the Assessing Officer was upheld by Gujarat High Court to re-compute the income for the purpose of deduction under Chapter VI-A and held at page 58 of the Report, by observing as under: "In the present case, admittedly, Panpharma Division is an eligible industrial undertaking, it transferred goods to other business carried on by the assessee and recorded consideration for such transfer in the accounts of the Panpharma Division. In these circumstances, the controversy has arisen as to whether the consideration recorded in the accounts corresponds to the market value of such goods on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad of 'Profits and gains of business' cannot be made without reference to the provisions contained in sections 32 and 33." RIGHT OF ASSESSEE TO ARRANGE HIS AFFAIRS 61. Shri M.K. Patel, the learned counsel for the assessee has relied upon the decision of the Supreme Court in the case of Azadi Bachao Andolan to support his contention that it is the right of the assessee to arrange his affairs so as to minimize his tax liability. We find that the issue in this case was with regard to the interpretation of Double Taxation Avoidance Agreement with Mauritius and the instructions issued by CBDT in this regard for the purpose of determination of the residence of the assessee. The facts in that case were altogether different and there is no relevance with the facts of that case and the case under appeal before us. There is no dispute about the right of the assessees to plan their affairs within four corners of law in such a manner so as to minimize the tax liability. However, here the issue under consideration before us is with regard to the determination of eligible profit for the purpose of computing deduction under Chapter VI-A. The same has to be computed in accordance with th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taxing statute is capable of more than one meanings or when two views are possible, the view favourable to the assessee should be adopted in view of the decision of the Supreme Court in the case of Vegetables Products Ltd. observing: "If the Court finds that the language of a taxing provision is ambiguous or capable of more meanings than one, then the Court has to adopt that interpretation which favours the assessee, more particularly so where the provision relates to the imposition of a penalty." 65. However this is to be read in the light of the decision in the case of CIT v. Thana Electricity Supply Ltd. [1994] 206 ITR 727 (Bom.), on which reliance was also placed on behalf of the assessees, observing: "If a provision of a taxing statute can be reasonably interpreted in two ways, that interpretation which is favourable to the assessee has got to be accepted. This is a well-accepted view of law. It is the satisfaction of the Court interpreting the law that the language of the taxing statute is ambiguous or reasonably capable of more meanings than one, which is material. If the Court does not think so, the fact that two different views have been advanced by the parties and ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t while working out the income for the purpose of Chapter VI-A the depreciation has to be deducted whether opted to be claimed by the assessee or not; and the view canvassed on behalf of the assessees is only supported by the decisions of the Tribunal that it is choice of the assessee as in the case of normal computation of income, it cannot be said that both the views are equally possible or reasonable views. The view which is supported by the decisions of the Supreme Court, Jurisdictional High Court and other High Courts has to be preferred than the view taken by the Tribunal. 68. A question was raised by the assessees that if the depreciation can be disclaimed in the normal computation of income but the same has to be allowed as a deduction while computing the income for the purpose of Chapter VI-A deductions, then there would be anomaly in the amount of WDV of the assets of the undertaking. It may be 'x' figure for the purpose of computation of income under section 29 whereas it would be 'x' minus depreciation allowed for Chapter VI-A deductions. Firstly, this is a situation created by the assessee itself by disclaiming the depreciation in normal computation; s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be: Sr. No. IT Appeal No. Appellant Respondent Appearance Appellant Respondent 1 2195/A/04 AY:-2001-2002 M/s. Nissan Polyplast, Nani Daman " Shri S.N. Divatia, CA 2 2520/A/2004 AY:-2001-2002 Siddh International, Daman " Shri Ketan H. Shah 3 3064/A/2004 AY:-2001-2002 Shree Fashion, Nani Daman " NONE Shri P.K. Ambastha, Senior DR 4 3065/A/2004 AY:-2001-2002 Smt Shailaben K. Damania " NONE Shri P.K. Ambastha, Senior DR 5. 3152/A/2004 AY:-2001- 2002 M/s. Abhishek Packaging Ind. " Shri HP Shah, CA " 6 3153/A/2004 AY:-2001-2002 M/s. Veer Packaging " " " 7 3154/A/2004 AY:-2001-2002 M/s. Ultra Polymers, Daman " " " 8 3155/A/2004 AY.--2001-2002 M/s. Siddharth Corporation, Daman " " " 9 3156/A/2004 AY:-2001-2002 M/s. Radha Madhav Industries " " " 10 3160/A/2004 AY:-2001-2002 M/s. Mayura Industries, Daman " " " 11 3161/A/2004 AY:-2001-2002 Gautam Enterprise " " " 12 3258/A/2004 M/s. Packers India " Shri D.H. Vadodaria, CA " 13 3259/A/2004 AY:-2001-2002 M/s. Polynova Packers " " " 14 3717/A/2004 AY:-2001-2002 Perfect Colourants and Plastics (P.) Ltd. ACIT, Circle-4 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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