Mitsu Industries Limited v. Asstt. Commissioner Of Income Tax....opponent(S

O/TAXAP/1879/2005 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD TAX APPEAL NO. 1879 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 ? ================================================================ MITSU INDUSTRIES LIMITED....Appellant(s) Versus ASSTT. COMMISSIONER OF INCOME TAX....Opponent(s) ================================================================ Appearance: MR RK PATEL, ADVOCATE for the Appellant(s) No. 1 MR SUDHIR M MEHTA, ADVOCATE for the Opponent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE KS JHAVERIandHONOURABLE MR.JUSTICE K.J.THAKER Date : 13/11/2014 ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE KS JHAVERI) 1.By way of this appeal, the appellant-assessee has challenged the judgment and order passed by the Income-tax Appellate Tribunal, Ahmedabad Bench ‘A’ in ITA No. 2937/Ahd/2003 for the assessment year 1996-97. 2.While admitting this appeal on 2.8.2006, this Court has framed the following substantial question of law: “Whether on the facts andin the circumstances of the case, the Tribunal is right in law in concluding that the alleged notional income from advance licence benefit receivable amounting to Rs. 2,02,54,522/- has accrued as taxable income for the assessment year under consideration ?” 3.The facts of the present case are that the return of income declaring total loss of Rs. 2,15,10,570/- was filed on 30.11.1996 along with the Audited Report in Form No. 3CA and 3CD as required u/s. 44AB of the I.T. Act, 1961. The return was processed under sec. 143(1)(a) of th Act and a statutory notice under sec. 143(2) along with the detailed questionaire was issued and served on the assessee. The assessee has claimed depreciation on Wnd Mill at Rs. 97,90,151/- in its computation of total income. During the course of assessment proceedings, the assessee was requested to show cause as to why actual cost of the Wind Mill along with the cost erection, foundation and installation of generators should not be adopted at Rs. 1,74,01,125/- and also show cause as to why no depreciation should be allowed at the rate of 50% i.e. Rs. 88,50,505/-. After discussion with the learned counsel of the assessee and in view of the assessment order for AY 1995/-96 depreciation on Wind Mill is allowed at Rs. 88,50,501/-,and ultimately the assessment order came to be passed. Against the said assessment order, the assessee has preferred an appeal before the CIT(A) which came to be partly allowed, against which, the assessee preferred an appeal before the Appellate Tribunal, which was dismissed, against which, the present Tax Appeal is preferred by the appellant-assessee. 4.Heard the learned advocates appearing for the respectivepartiesandconsideredthe submissions. The learned advocate appearing for the appellant has contended that the income which was sought to be included without exercising the option of importing the goods by the department. The same issue has come up for consideration before the Full Bench of the Supreme Court in the 4.Heard the learned advocates appearing for the respectivepartiesandconsideredthe submissions. The learned advocate appearing for the appellant has contended that the income which was sought to be included without exercising the option of importing the goods by the department. The same issue has come up for consideration before the Full Bench of the Supreme Court in the case of Commissioner of Income-tax v. Excel Industries Ltd., reported in358 ITR 295, which is squarely applied to the present case. In that view of the matter, without giving further elaborating reasons, the present appeal requires to be allowed. The question is answered in favour of the assessee and against the department. This appeal is allowed. (K.S.JHAVERI, J.) mandora (K.J.THAKER, J)