Appellant(Revenue v. Hira Ferro Alloys Ltd

^1-..n^^IN THE HIGH COURT OF JUbICATURE AT BILASPURTax CaseNO.n^/2010 OJVJSJSAPPELLANT. ^^V^.. z^CommissionerofIncomeTax,^Tv^(Reven,..)<^.^ ^.^^^ ^••••'::,cA^sy^-Vs^<"-...-r::~.-.;-i%i.-R&SPONDENTHira •Piwer<& &+ee+-Ltd.,-&^/\, "^/^(Assessee)Urla Industrial Area, Raipur (CG)4APPEAL UNbER SECTION 260-A OF THE INCOME TAXACT. 1961 J HIGH COURT OF CHHATTISGARH AT BILASPUR Tax Case No.178 of 2010 Commissioner of Income Tax,Raipur. Appellant(Revenue) versus Hira Ferro Alloys Ltd. Respondent D.B.: Hon'ble Shri Satish K. Aenihotri &Hon9ble Shri Radhe Shyam Sharma, JJ. Present:ShriRajeevShrivastava,StandingCounselfortheAppellant/Revenue.Shri Shashank Dubey, Senior Advocate with Shri NeelabhDubey, Advocate for the respondent/Assessee. APPEAL UNDER SECTION 260-A OF THE INCOME TAX ACT.ORAL ORDER (Passed[on][ 05th][ day][ ofSeptember,][ 2011)] Per Satish K.Asnihotri, J^ 1.In instant appeal has been filed by the Commissioner oflncomeTax, Raipur {hereinafter referred to as tthe RevenueJ) against theorder dated 04.06.2010 passed by the Income Tax AppellateTribunal, Bilaspur Bench, (for short tthe Tribunal') in AppealNo. 629/08-09. The appeal ofthe Revenue was admitted on thefollowing substantial questions oflaw: "Whether on thcfactsandin thecircumstances of the case and in lawthe tribunal was justified in holdingthat the respondent was entitled fordepreciationontheplantandmachinery for the year even though theplant could not be run? " 2.The facts, in brief, relevant for adjudication of the substantialquestion of law, as aforestated, are that the Assessing Officer(for short (the A0)} had disallowed the depreciation claimed onthe plant and machinery by the assessee for the assessment yearquestion of law, as aforestated, are that the Assessing Officer(for short (the A0)} had disallowed the depreciation claimed onthe plant and machinery by the assessee for the assessment year // Amit 2002-2003 on the ground that as no production during theprevious year., meaning thereby the plant and machinery was notin use. The AO, vide order dated 31.12.2008 had deleted thedepreciation. Thereagainst, an appeal was filed by the assesseebefore the Commissioner of Income Tax (Appeal) [for short'CIT(A)] which was allowed by the order dated 19.11.2009holding that the assessee did not permanently close downproduction in its establishment and for a temporary period, thefactory and office was mn, therefore, the assessee was entitledfordepreciationonthe plantand themachinery.Beingaggrieved, the Revenue filed an appeal before the Tribunal. TheTribunal, vide order dated 04.06.2010 dismissed the appealupholding the findings recorded by theCIT (A).On perusal of the orders passed by the authorities below andhaving regard to the fact that during the assessment period, therewas no production and fiirther, the AO has also assessed theincome tax as nil, in view of the instructions No. 5 of 2008,dated 15May, 2008, the above stated appeal is not maintainableas the tax effect was nil. 4.Accordingly, the appeal is dismissed. Sd/-R.S.SharmaJudge Sd/-Satish K.AgnihotriJudge