Commissioner Of Income Tax-I,Chennai v. M/S.a.r.mercantile Pvt. Ltdno

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18-07-2011 THE HONOURABLE MRS.JUSTICE CHITRA VENKATARAMANANDTHE HONOURABLE MR.JUSTICE M.JAICHANDREN Tax Case (Appeal) No.881 of 2004 Commissioner of Income Tax-I,Chennai. .. Appellant. Versus M/s.A.R.Mercantile Pvt. LtdNo.4, Santhanna Naicken Street,Chennai-600 112. .. Respondent. Prayer: Appeal filed U/s 260 A of Income Tax Act 1961 against the orderof the Income Tax Appellate Tribunal "B" Bench, dated 19.4.2004, in IT(SS) A No.76/Mds/97,arising out of the Assessment order of theAssistant Commissioner of Income Tax Central Circle III 3, Chennaidated 28.2.1997 for the Assessment year 1986-87 to 1996-97. For Appellant: Mr.Arun Kurein Joseph for M/s.Naresh Kumar For Respondent:Mr.P.J.Rishikesh JUDGMENT (Judgment of the Court was made by CHITRA VENKATARAMAN,J.) Though the Revenue had raised two questions of law before thisCourt in the appeal preferred in respect of the block assessment yearscovering the period from 1986 to 1987 to 1996-1997 and upto 23.2.1996,yet this Court had admitted only the second question of law, whichreads as follows: "Whether in the facts and circumstances of the case, thedepreciation of the windmills purchased in the same year,prior to the date of search, should be granted in the regularassessment or the block assessment.?" 2. Learned counsel appearing for the assessee pointed that havingregard to the fact that the first question regarding the fixing the https://hcservices.ecourts.gov.in/hcservices/ date of the commissioning of the windmill is not admitted and that theincome disclosed in the regular books of accounts had to be consideredfor a regular assessment and not under the special procedure relatingto the surcharge cases, the assessee was granted 100% depreciation. 3. In the light of the fact that second question alone was framedand the first question, as regards the date of commission thus havingattained a finality, the issue itself is academic for this Court toconsider. A reading of the order of the Tribunal shows that theassessee's place of business was searched, on 23.2.1996. In the blockassessment proceedings, the Assessing Officer assessed the income forthe block period 1986-1987 to 1996-1997, upto 23.2.1996, at 60% plus15% surcharge. The assessee claimed 100% depreciation of the windmillpurchased and commissioned, which was further restricted by the officerto 50% on the ground that there was no evidence that it wascommissioned prior to 30.9.1995. 4. The Tribunal accepted the case of the assessee based on theletter issued by the Assistant Executive Engineer of the TamilnaduElectricity Board, that the windmill was commissioned on 30.9.1995.Following the earlier order in the case of Assistant Commissioner ofIncome Tax Vs. Kences Foundation (P) Ltd [2006 (203) CTR (Mad) 249],wherein a similar relief was granted to the assessee, the presentappeal of the assessee was allowed. 5. The learned counsel for the assessee pointed out that in thecase of Assistant Commissioner of Income Tax Vs. Kences Foundation (P)Ltd [2006 (203) CTR (Mad) 249], this Court had already considered theissue and accepted the case in favour of the assessee. 6. Leaving aside the said decision, even going by the findings ofthe Tribunal, which has been accepted by this Court, in view of therejection of the first question raised, and given the fact that theissue regarding the commission of windmill on 30.9.1995 is disclosed inthe books of accounts and calls for depreciation under the regularassessment year, in view of Section 158BB(1)(d) of the Income Tax Act,1961, we do not find any ground to consider the said issue, as aquestion of law. The Tax Case Appeal stands dismissed. No costs. csh To 1. Income Tax Appellate Tribunal "B" Bench,Chennai. 2. Commissioner of Income Tax-I,Chennai. 6. Leaving aside the said decision, even going by the findings ofthe Tribunal, which has been accepted by this Court, in view of therejection of the first question raised, and given the fact that theissue regarding the commission of windmill on 30.9.1995 is disclosed inthe books of accounts and calls for depreciation under the regularassessment year, in view of Section 158BB(1)(d) of the Income Tax Act,1961, we do not find any ground to consider the said issue, as aquestion of law. The Tax Case Appeal stands dismissed. No costs. csh To 1. Income Tax Appellate Tribunal "B" Bench,Chennai. 2. Commissioner of Income Tax-I,Chennai. 3. The Assistant Commissioner of Income Tax,Central Circle III(3), Chennai.4.The Asst.Registrar,Income Tax Appellate TribunalRajaji Bhavan, III Floor, Besant Nagar,Chennai-90. +1cc to M/s. P.J.Rishikesh, Advocate Sr 42759RS(CO)km/4.8. Tax Case (Appeal) No.881 of 2004