Commissioner Of Income Tax v. Chloritech Industries....opponent(S

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD TAX APPEAL NO. 1894 of 2005 With TAX APPEAL NO. 1896 of 2005 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE KS JHAVERI and HONOURABLE MR.JUSTICE K.J.THAKER ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ?the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ?judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ?to the interpretation of the Constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================================COMMISSIONER OF INCOME TAX....Appellant(s)COMMISSIONER OF INCOME TAX....Appellant(s) Versus CHLORITECH INDUSTRIES....Opponent(s) ================================================================ Appearance: MRS MAUNA M BHATT, ADVOCATE for the Appellant(s) No. 1MRS SWATI SOPARKAR, ADVOCATE for the Opponent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE KS JHAVERI andHONOURABLE MR.JUSTICE K.J.THAKER Date : 13/11/2014 ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE KS JHAVERI) 1.By way of these appeals, the appellant of Tax Appeal No. 1894/2005 has challenged the judgment and order dated 20.1.2005 passed by the Income-tax Appellate Tribunal, Ahmedabad Bench ‘B’ in ITA No. 3274/Ahd/2004 for AY 1998-99 and the Appellant of Tax Appeal No. 1896/2005 has challenged the judgment and order dated 21.3.2005 passed by the Income-tax Appellate Tribunal, Ahmedabad Bench ‘B’ in ITA No. 3323/Ahd/2004 for AY 2001-02. 2.While admitting both these appeals, this Court has framed the following substantial question of law in both the appeals: “Whether the Appellate Tribunal is right in law and on facts in confirming the order passed by the CIT(A) holding that depreciation on gas toner is allowable at the rate of 100% treating the same as gas cylinders, as against depreciation at the rate of 25% granted by the Assessing Officer ?” Facts of Tax Appeal No. 1894/2005: O/TAXAP/1894/2005 JUDGMENT 3.The assessee had filed return of income on 31.10.1998 with returned income of Rs. 2,68,76,680/-. The same was processed under sec. 143(1). The case was selected for scrutiny and an order us. 143(3) was passed on 29.12.2000 assessing total income at Rs. 2,69,94,060/-. However, after giving effect to CIT(A)’s order dated 22.11.2002, total income was reduced to Rs. 2,69,07,867/-. The case was reopened by issuing a notice under sec. 148 on 26.3.2003. In compliance to the notice, assessee filed return of income on 7.11.2003 declaring total income of Rs. 2,68,91,680/-. Thereafter, notice u/s. 143(2) was issued on 3.11.2003 and the assessee was asked to produce certain details through a notice u/s. 142(1) dated 3.11.2003. That after considering the documents, ultimately the assessment order came to be passed.Against the said order, the assessee has preferred an appeal before CIT(A),which was partly allowed. Against the said order of CIT(A), the Revenue has preferred an appeal before the Income Tax Appellate Tribunal, which was dismissed, against which, the present Tax Appeal No. 1894/2005 is preferred by the Revenue. The facts of Tax Appeal No. 1896/2005: 4.The assessee has filed return of income on O/TAXAP/1894/2005 JUDGMENT The facts of Tax Appeal No. 1896/2005: 4.The assessee has filed return of income on O/TAXAP/1894/2005 JUDGMENT 30.102001 declaring total income of Rs. 6,83,82,808/-. The deduction amounting to Rs. 50,10,144/- was claimed under sec. 80IA of the IT Act. Besides this, the assessee claimed deduction amounting to Rs. 9,40,604/- u/s. 80HHC. The case was selected for scrutiny and a notice u/s. 143(2) was issued on 25.10.2002. Another notice u/s. 143(2) was issued on 30.5.2003 due to change of Assessing Officer having jurisdiction over the case. The details related to the case were called by issuing a notice u/s 142(1) on 25.8.2003. That after considering the documents, ultimately the assessment order came to be passed. Against the said order, the assessee has preferred an appeal before CIT(A), which was partly allowed. Against the said order of CIT(A), the Revenue has preferred an appeal before the Income Tax Appellate Tribunal, which was dismissed, against which, the present Tax Appeal No. 1896/2005 is preferred by the Revenue. Since the assessee in both these appeals is same, these appeals are disposed of by this judgment. 5.Heard the learned advocates appearing for the parties and considered the submissions. Mrs. Bhatt learned advocate appearing for the appellant in both the appeals has contended that the items which are shown in the schedule are very clear and the view taken by the Tribunal is contrary to the schedule. 6.The Tribunal, while considering the issue has observed in para-4 as under: “4. We have heard the ld. DR and considered the written submission of the assessee. We find that the issue is covered in favour of assessee by the decision of ITAT Ahmedabad Bench “B” in ITA No. 3274/Ahd/2004 for Asst. Year 1988-89 in assessee’s own case wherein it has been held as under:- “2....We find that the ITAT Ahmedabad Bench has considered the similar issue in the case of Vadilal Gases & Chemicals (P) Ltd. vs. ACIT 90 TTJ (And) 164. In that case, the ITAT allowed 100% depreciation on the gas cylinder which was mounted on vehicle,it was pointed out by the ld. Counsel that the above gas cylinder had a capacity of more than 1000kg., still the ITAT held it to be gas cylinder because it was used for transporting gas. No contrary decision is brought to our notice. We,therefore,respectfully following the above decision of ITAT, Ahmedabad Bench uphold the order of CIT(Appeals) in this respect who has directed the Assessing Officer to allow 100% depreciation on the gas cylinders having the capacity of 100kg. Accordingly, the Revenue’s appeal has no merit. The same is rejected.” 7.Even otherwise, the issue is covered against O/TAXAP/1894/2005 JUDGMENT the department in view of decision of this Court in the case of Commissioner of Income-tax-I v. Gujarat Alkalies and Chemicals Ltd., reported in [2014] 43 traxmann.com 296 (Gujarat). In that view of the matter, we are in complete agreement with the order passed by the Tribunal and unable to take a different view than the one taken by the Tribunal. Hence, the questions in both the appeals are answered in favour of the assessee and against the Revenue. Both these appeals are dismissed accordingly. (K.S.JHAVERI, J.) mandora (K.J.THAKER, J)