9911796707
TMI Blog1984 (10) TMI 75X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee's profits and gains out of such business chargeable to tax at 7 1/2 per cent of the value of such freight. In the assessment proceedings, the assessee claimed to bring forward the depreciation allowance determined in respect of the preceding assessments under section 32(1)(i), read with section 32(2) of the Act and have it allowed against the profits of the two years under consideration. The ITO having rejected the assessee's claim for both the years by reference to the non obstante clause at the beginning of section 44B(1) the assessee appealed before the Commissioner (Appeals). The Commissioner (Appeals) also agreed with the ITO about the non-eligibility of the assessee to bring forward the depreciation in respect of the preceding ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e full depreciation allowance under section 10(2)(vi) of the Indian Income-tax Act, 1922 and the claim was made that the portion of the depreciation not so set off against the profits should be apportioned against the business profits of other business and even from other sources. It was brought to our notice by the learned counsel for the assessee that the Bombay High Court had followed this decision of the Bombay High Court while deciding the case of Ambika Silk Mills Co. Ltd. v. CIT [1952] 22 ITR 58. Reference in this connection was also made to another Bombay High Court decision in the case of Dharampur Leather Cloth Co. Ltd. v. CIT [1965] 55 ITR 329. Reference was also made to the Gujarat High Court decision in the case of Chokshi Meta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as, therefore, provided a rough and ready method laid down under section 44B. This rough and ready method is in complete supersession of the normal procedure for determining the profits and gains by reference to the actual books of account of the assessee and actual relief and allowances admissible under the normal provisions. What the assessee is claiming is relief under section 32(1)(i), read with section 32(2). Once the opening clause of section 44B has completely ruled out the operation of the provisions of sections 28 to 43A in our opinion, the assessee cannot seek to rely on the provisions of section 32(1)(i) or 32(2) by calling it by some other name, say business loss. As to the assessee's reliance on the Madras High Court decision i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i) by a specific reference to the omission of allowance admissible under section 32(1)(iii) or section 32(2). Here we are not concerned with the depreciation allowance under section 32(1)(iii). This is a case of depreciation allowance under section 32(1)(i). In our opinion, the Gauhati High Court decision in the case of Singh Transport Co. and the Supreme Court decisions in the case of Jaipuria China Clay Mines (P.) Ltd. and in the case of S. Sankappa support the revenue's case that depreciation allowance stands on a different footing from ordinary business loss. 4. But, in our opinion, this entire discussion is futile on the facts and in the circumstances of the present case. Whether the depreciation allowance admissible to an assessee u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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