Learned Senior Counsel Appearing For The Assesseerefers To And Relies On The Judgments In Commissioner Of Income-Tax, Madurai v. Taxmann.com 411 (Madras)2(2016) 66 Taxmann.com 4 (Karnataka)2(2016) 66 Taxmann.com 4 (Karnataka

IN THE HIGH COURT OF KERALA AT ERNAKULAMPRESENT THE HONOURABLE MR.JUSTICE S.V.BHATTI & THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMASMONDAY, THE 2 DAY OF AUGUST 2021 / 11TH SRAVANA, 1943 ITA NO. 166 OF 2014 AGAINST THE ORDER IN IT(TP)A 4/2013 OF I.T.A.TRIBUNAL,COCHIN BENCH, ERNAKULAM APPELLANT/S: THE COMMISSIONER OF INCOME TAX,COCHIN. BY ADVS.SRI.P.K.R.MENON,SR.COUNSEL, GOI(TAXES)SRI.JOSE JOSEPH, SC, FOR INCOME TAX SRI.CHRISTOPHER ABRAHAM RESPONDENT/S: M/S.APPOLO TYRES LIMITED,6TH FLOOR, CHERUPUZHPAM BUILDINGS, SHANMUGHAM ROAD, COCHIN. BY ADVS.SRI.V.ABRAHAM MARKOSSRI.ABRAHAM JOSEPH MARKOSSRI.BINU MATHEWSRI.ISAAC THOMASSRI.JOSEPH MARKOSE SR.SRI.NOBY THOMAS CYRIACSRI.TOM THOMAS KAKKUZHIYIL THIS INCOME TAX APPEAL HAVING COME UP FOR HEARING ON 02.08.2021,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: I.T.A. No.166/2014 J U D G M E N T S.V.Bhatti, J. Heard learned Standing Counsel Mr. Christopher Abraham and learned Senior Counsel Mr. Joseph Markos for parties. 2. The Commissioner of Income Tax/Revenue is the appellant. M/s.Apollo Tyres Ltd., Kochi/Assessee is therespondent. The subject appeal is at the instance of Revenuefrom the order of Income Tax Appellate Tribunal (for short ‘theTribunal') Cochin Bench in IT(TP)A No.04/Coch/2013 dated07.03.2014. The controversies relate to the Assessment Year2008-09. 3.The appeal deals with the controversy on availing50% of depreciation unavailed under Section 32(1)(iia) in theprevious year ending on 31.03.2008, whether could be allowed The appeal deals with the controversy on availing I.T.A. No.166/2014 in the subsequent year or not. Substantial questions raised readas follows: “1. Whether, on the facts and in the circumstances of the caseand on an interpretation of Sec. 32(1)(iia) read with the secondproviso the Tribunal is right in law in holding that "the balance50% of the depreciation has to be allowed in the subsequentyear" and is not the above finding against law and perverse? 2. Whether, on the Tribunal is right in law in holding that "thesecond proviso to section 32(1)(ii) is to mean that 10% shouldbe allowed in the year in which the machinery is acquired andinstalled and the balance 10% has to be impliedly allowed inthe subsequent year" and is not the above interpretation andapproach against law and the intention of the legislature?” 4.1The circumstances leading to the disagreement between he Revenue and the assessee are not in dispute and the fact that the assessee at the first instance availed 50% ofadditional depreciation allowed under Section32(1)(iia) of theAct. The assessee could avail 50% of allowed depreciation onaccount of the fact that the equipment for which depreciation I.T.A. No.166/2014 was claimed was not used for more than 180 days in theprevious year 2007-08. Thus, the assessee claimed 10% ofpermissible 20% depreciation in the previous year 2007-08 andclaimed balance 50%, i.e., 10% of 20%, in the Assessment Year2008-09. The Tribunal held that there is no restriction in theIncome Tax Act from availing balance of one-time-incentive inthe form of additional sum of depreciation in the subsequentyear. 4.2Learned Senior Counsel appearing for the assesseerefers to and relies on the judgments in Commissioner of Income-tax, Madurai v. T P Textiles (P) Ltd.[1] and Commissioner of Income-tax,Bangalore v. Rittal India (P) Ltd[2] for sustaining the view taken bythe Tribunal. It is also argued that the clarificatory amendmentmade to Section 32(1)(ii) with effect from 01.10.2016 alsosupports the deduction claimed by the assessee. The 1(2017) 79 taxmann.com 411 (Madras)2(2016) 66 taxmann.com 4 (Karnataka)2(2016) 66 taxmann.com 4 (Karnataka) I.T.A. No.166/2014 4.2Learned Senior Counsel appearing for the assesseerefers to and relies on the judgments in Commissioner of Income-tax, Madurai v. T P Textiles (P) Ltd.[1] and Commissioner of Income-tax,Bangalore v. Rittal India (P) Ltd[2] for sustaining the view taken bythe Tribunal. It is also argued that the clarificatory amendmentmade to Section 32(1)(ii) with effect from 01.10.2016 alsosupports the deduction claimed by the assessee. The 1(2017) 79 taxmann.com 411 (Madras)2(2016) 66 taxmann.com 4 (Karnataka)2(2016) 66 taxmann.com 4 (Karnataka) I.T.A. No.166/2014 amendment, no doubt, was introduced with effect from01.10.2016, is a clarificatory amendment. The decisions reliedon by the assessee are directly on the point and we are in fullagreement with the view taken by the Madras and KarnatakaHigh Courts. The proposition sated in the reported judgmentapplies in all fours. By following the reasons and principles laiddown in T P Textiles (P) Ltd. and Rittal India (P) Ltd (supra),substantial questions are answered against the Revenue and infavour of the assessee.No order as to costs. Sd/- S.V.BHATTIJUDGE Sd/- BECHU KURIAN THOMASJUDGE jjj I.T.A. No.166/2014 PETITIONER ANNEXURE ANNEXURE A ANNEXURE B APPENDIX OF ITA 166/2014 COPY OF THE ASSESSMENT ORDER U/S.143(3) DT. 17/12/2012 PASSED BY THE ASSESSING OFFICER FOR AY 2008-09. COPY OF THE ITAT'S ORDER ITA NO.04/COCH/2013 DATED 07/03/2014 FOR ASSESSMENT YEAR 2008-09.