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TMI Blog1988 (6) TMI 61X X X X Extracts X X X X X X X X Extracts X X X X ..... eign exchange loan was taken for acquiring capital asset and the amount that goes to increase the cost of the asset would be eligible for investment allowance. It is immaterial for consideration that the exchange loss was not in the year in which the plant and machinery have been installed. In this connection, our attention was drawn to the decision of the Tribunal, Ahmedabad Bench 'A' in ITA Nos. 1639 1640/Ahd/84 dt. 24th June, 1985 in the case of Maneklal Harilal Spg. Mfg. Co. Ltd. and Ahmedabad Bench 'B' in ITA No. 728/Ahd/1984 for the asst. yr. 1980-81 in the case of Windsor Foods Ltd. vs. ITO. In both the cases, it is submitted that the Tribunal had accepted this view. Our attention was also drawn to the decision of the Madras High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esult of the exchange fluctuation arose to the assessee not in the year in which the plant or machinery was installed and this fact is not in dispute. It is true that the Ahmedabad Benches of the Tribunal have taken a view supporting the contention raised by the assessee before us but, in our view, in the light of the clear provisions of s. 32A such view would not be tenable. 5. The decisions of the two High Courts reported in 109 ITR 646 and 159 ITR 12 are also of no help to the assessee. In the case reported in 109 ITR 646, the loss was on account of devaluation and it arose in the year in which the plant and machinery were installed. It was in that context, the High Court held that the assessee would be entitled to development rebate. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in allowing current year depreciation before setting off of the brought forward losses of earlier years against the available income. 9. It is contended on behalf of the assessee that the claim of depreciation was withdrawn by filing a revised return. The provisions of s. 32 are not mandatory and it has to be left to the choice of the assessee whether it would like to claim depreciation or not in a particular year. The ITO was in error in allowing the assessee depreciation which was not made the subject matter of claim in the revised return and once the revised return is filed, the original return has to be considered as non est. 10. Our attention was invited to several decisions which, according to the assessee, support its view. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of Hopeville Estate vs. State of Tamil Nadu (1978) 112 ITR 861 (Mad.) the Court took the view that if the prescribed particulars were not furnished, the assessee would be not eligible to obtain deduction of depreciation. It is pointed out that in the decision reported in the case of Dasprakash Bottling Co. vs. CIT (1980) 14 CTR (Mad) 323 : (1980) 122 ITR 9 (Mad), the Madras High Court has taken a contrary view. That was because the decision in the case reported in 112 ITR 861 was not cited before the Court. In short the submission of the assessee is that the allowance of deduction under s. 32 of the IT Act is conditional on the assessee filing prescribed particulars. If no prescribed particulars are furnished, it is quite obvious no dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... culars from the assessee and granting him the deduction by way of depreciation. The Board circular on which a lot of reliance has been placed by the assessee is of little assistance to the assessee. The circular only spells out that the ITO would be competent to deny the claim if prescribed particulars are not filed. Where prescribed particulars are available, the claim cannot be denied. The decisions of the Madras High Court (122 ITR 9 and Allhabad High Court (90 ITR 477 support this view. Of course, the decision of the Punjab Harayana High Court reported in 148 ITR 478 approves the stand taken by the assessee in the course of the appeal proceedings. We shall further refer to the decision of the Supreme Court in the case of CIT vs. Mothe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the assessee to claim or not to claim the benefit of s. 24 of the Act, and that if he does not do so, no question arises of applying s. 24. In the first place, a perusal of the assessment orders for the two years shows clearly that the assessee did claim a set-off of the Pakistan dividend against the losses of the Indian business. In the second place, there is a duty cast on the ITO to apply the relevant provisions of the Indian IT Act for the purpose of determining the true figure of the assessee's taxable income and the consequential tax liability. Merely because the assessee fails to claim the benefit of a set off, it cannot relieve the ITO of his duty to apply s. 24 in an appropriate case''. The above observations of the Supreme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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