The Commissioner Of Income Tax v. M/S Phil Corporation Ltd. & Anr

IN THE HIGH COURT OF BOMBAY AT GOA TAX APPEAL NO. 56 OF 2002 THE COMMISSIONER OF INCOME TAX Versus M/S PHIL CORPORATION LTD. & ANR. ... Appellant ... Respondent Ms. A. Dessai, Advocate for the appellant. Mr. M. S. Sonak, Advocate with Mr. J. Supekar, Advocate for therespondents. P.C. -Coram:D. G. KARNIK &F. M. REIS, JJ.-Date:30th August, 2010 Heard both learned counsels for the parties. 2. Vide Order dated 8.7.2002 this appeal was admitted on followingsubstantial question of law:- "Whether on the facts and in the circumstances of the case, theITAT was justified in holding that the depreciation under section 32of the I.T Act cannot be allowed unless it is claimed by Assesseeparticularly in view of clarificatory explanation-5 to section 32 whichis effective retrospectively?" 3. In our view matter is covered by the decision of the full bench incase of Plastiblends India Limited Vs. Additional Commissioner ofIncome Tax and others. The full bench held that quantum ofdeduction allowable under section 80-IA of the Income Tax Act hasto be determined by computing the total income from the businessafter taking into consideration all deductions allowable under section 30 to 43D of the Income Tax Act. The full bench has further heldthat whether the assessee had claimed the deductions allowableunder section 30 to 43D of the Income Tax Act or not, the quantumof deduction under section 80-IA has to be determined on the totalincome computed after deducting all deductions allowable undersection 30 to 43D of the Act. 4. In view of the decision of the full bench the question isanswered against the respondent/assessee and in favour of theappellant. The ITAT was not justified in holding that thedepreciation under section 32 of the Income Tax Act cannot beallowed unless it was claimed by the assessee. Accordingly theappeal is allowed. The Order of ITAT is set aside and the order ofthe Commissioner of Income Tax(Appeals) is restored. D. G. KARNIK, J. vn F. M. REIS, J.