2012 (10) TMI 290

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..../Chandi/2010, for the assessment year 2006-07. On January 13, 2012 notice of motion was issued with respect to the following substantial questions of law:- 1. Whether under the facts and circumstances of the case, nature of business, the Tribunal's action for declining the claim and Allowance of Depreciation u/s 32(1) Exp.5 w.e.f. 01.04.2002, cannot be entertained since ground not raised before CIT(A) which is emerging from material on record? 2. Whether under the facts and circumstances, the allowance is mandatory u/s 40 (a)(ia), while considering the provisions of Section 194I proviso (unnumbered), in the determination of the 'Chargeable Income'? 2. Briefly stated, the facts necessary for adjudication of the present appeal as nar....

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....on 32(1) of the Act which was inserted by Finance Act, 2001 w.e.f. 1.4.2002. It read thus:- "Explanation 5.- For the removal of doubts, it is hereby declared that the provisions of this sub-section shall apply whether or not the assessee has claimed the deduction in respect of depreciation in computing his total income." 5. A plain reading of the aforesaid Explanation spells out that the provisions of Section 32 relating to depreciation shall apply wherever the assessee may or may not have claimed deduction in respect of depreciation in computing the income. In other words, the effect of the aforesaid Explanation is that the Assessing Officer is duty bound to allow depreciation even without there being claim by the assessee wherever t....