Itxa/645/2012 Of The Commissioner Of Income Tax - 2 v. M/S. Ushadev International Ltd

*1* IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO. 645 OF 2012 The Commissioner of Income Tax 2..Appellant -Versus-M/s. Ushdev International Ltd. ..Respondent ........... Mr. Suresh Kumar for the Appellant. Mr. Sameer Dalal with P. C. Tripathi i/b. A. K. Jasani for the Respondent............ CORAM: S.C. DHARMADHIKARIAND B.P. COLABAWALLA, JJ. DATE :- 8[th] August, 2014 P.C.: 1]We have heard Mr. Suresh Kumar, learned counsel, appearing on behalf of the revenue in support of this appeal. It challenges the concurrent orders made by the Commissioner of Income Tax (Appeals) on 31[st] March, 2010 and that of the Tribunal dated 25[th] October, 2011 for the assessment year 2006-07. 2]Mr. Suresh Kumar submits that the assessee-respondent had claimed depreciation in the original return of income filed on 29[th] November, 2006 at the rate of 7.69% as per the Straight Line Method. However, the assessee filed a revised return on 15[th] November, 2007. In that, the 1/3 *2* 9.itxa645.12 depreciation was claimed by not applying Straight Line Method but Written Down Value Method and this enhanced the depreciation at the rate of 80%. The Assessing Officer was right in relying on Rule 5 of the Income Tax Rules and which gives an option to the assessee to claim depreciation either on Straight Line Method or on Written Down Value Method. The option once exercised could not have been changed. The Commissioner's and the Tribunal's order to the contrary would, therefore, raise substantial question of law. 3]Upon reading of both orders, we are not able to agree with Shri Suresh Kumar. Both have concurrently held that in the given facts and circumstances when the law enables the assessee to file a return and revise it, then, the basis on which depreciation is claimed in the revised return and which has replaced the original return can be taken into account. There is no such prohibition as is now claimed by the revenue before us. In fact, the reasoning of the Tribunal in para-7 of the order under challenge is based not on the argument now canvassed but the claim of the depreciation as sought to be enhanced. That was challenged by the revenue by urging that the basis for the claim of depreciation should be what was the original method and that cannot be given up. The Tribunal found that since the return was revised, the assessee can rely on the method now applied and claim depreciation. In these circumstances, the finding of fact and relying on the returns as revised, cannot be said to be perverse. The view taken is a possible view. In these circumstances, the appeal does not raise any substantial question of law. It is accordingly dismissed. No costs. (B.P.COLABAWALLA, J.) (S.C. DHARMADHIKARI, J.) wadhwa