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TAXAP/1829/2009 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX
APPEAL No. 1829 of 2009
=========================================================
COMMISSIONER
OF INCOME TAX-IV - Appellant(s)
Versus
SHAH
ALLOYS LTD - Opponent(s)
=========================================================
Appearance
:
MR
MR BHATT, SR. ADV. WITH MRS MAUNA M BHATT
for
Appellant(s) : 1,
None for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
and
HONOURABLE
MS JUSTICE SONIA GOKANI
Date
: 05/04/2011
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE AKIL KURESHI)
Revenue
is in appeal against the judgment of the Tribunal dated 26th
September 2008 raising following questions for our consideration:
“1.
Whether the Appellate Tribunal is right in law and on facts in
reversing the order passed by CIT(A) in allowing the claim of
deduction u/s.80IA on the interest amounting to Rs.76,90,674/-
received on margin money?”
2. Whether
the Appellate Tribunal is right in law and on facts in reversing
the order passed by CIT(A) in allowing the claim of deduction
u/s.80IA on the profit without accounting for the loss suffered in
plate mill against the profit earned in general unit and power unit?
3. Whether
the Appellate Tribunal is right in law and on facts in reversing the
order passed by CIT(A) in allowing the claim of depreciation of
Rs.21,62,392/- on two items of plant and machinery purchased during
the year without production of bills?”
With
respect to question No.1, counsel for the Revenue submitted that the
Tribunal erred in allowing the claim of deduction under section 80IA
of the Act in favour of the assessee nor applied the ratio in the
case reported in 262 ITR 278. He submitted that on similar issues,
other tax appeals are also admitted. In view of the above
submissions, in our view, this question is required to be considered.
With
respect to question No.2, we find that the same does not arise out
of the judgment of the Tribunal. We notice that with respect to the
claim of the assessee for deduction under section 80IA on profit
without accounting for the loss suffered in plate mill against the
profit earned in general unit and power unit, issue was decided in
favour of the Revenue by the CIT (Appeals). In further appeal by
the assessee, the Tribunal also concurred with the view of the CIT
(Appeals). In that view of the matter, the issue being decided in
favour of the Revenue, question does not arise.
With
respect to question No.3, we find that the same has been discussed
by the Tribunal in the impugned order, conclusion of which are as
follows:-
“22.
After careful consideration of the rival submissions, facts and
circumstances of the case and the fact that the assessee was
continuously making purchases of various machineries from both the
parties under reference and also having gone through the requirement
of provisions of 32 of the Act, we are of the opinion that it is the
availability of machines (physically) and use of the same for
assessee’s business during the previous year which are relevant for
allowing assessee’s claim of depreciation. If the Revenue had any
doubt with respect to existence of the machinery itself or its use,
it was incumbent upon it either to bring sufficient evidence on
record to prove that machines under reference was not available with
the assessee and had not been used for assessee’s business or to
allow the assessee an opportunity to establish the existence of the
machinery with it as well as user of the same was in assessee’s
business, but in the present case, nothing is on record on this
account.”
We
find that the entire issue is factual in nature. When the
genuineness of the transaction is not seriously in dispute, only on
the ground that few sundry bills were not produced, the Tribunal
having ruled in favour of the assessee, in our opinion, no
substantial question of law is arising.
In
the result, the tax appeal is admitted for consideration of question
No.1 alone.
(Akil
Kureshi, J.)
(Ms.Sonia
Gokani, J.)
(vjn)
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