TaxTMI 
TaxTMI 
TaxTMI 
2015 (2) TMI 318
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....m (Rs.1.92 lacs) for the current year was confirmed by the tribunal with reference to the decision by the hon'ble jurisdictional high court in Dineshkumar Gulabchand Agarwal vs. CIT [2004] 267 ITR 768 (Bom) and by the tribunal in Asst. CIT vs. Rishiroop Polymers (P.) Ltd. [2006] 102 ITD 129 (Mum). The assessee's alternate claim for allowance of terminal deprecation on the entire amount of written down value (WDV) of the relevant asset, written off in accounts, u/s.32(1)(iii); the said asset having been discarded, was also considered inadmissible by the tribunal on the ground that the asset had not been brought to use in any earlier year. However, it subsequently came to its notice that the provision of section 32(1)(iii) is applicable only to assets subject to deprecation u/s.32(1)(i), i.e., the assets of an undertaking engaged in the generation and distribution of power, on which depreciation is allowed as a percentage as prescribed on the actual cost. Sec. 32(1)(iii) was thus not applicable to the asset under question. Though it did not impact the result, inasmuch the assessee's claim for the amount written off stood rejected, the said reason as recorded by the tribunal was incor....
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....d distribution of power. The discovery of the said mistake, noticed suo motu, would necessitate amending the order with a view to rectifying the said mistake apparent from the record. However, we only consider it proper to, before giving effect thereto, put the parties to notice of the proposed amendment, allowing an opportunity for being heard in the matter, i.e., as to the non-application of the provision of section 32(1)(iii) in the instant case. Accordingly, the date of hearing for the purpose is fixed for 14.11.2014. Inform parties. Issue notice u/s. 254(2), enclosing along with a copy of this order sheet entry.' 3.2 The reason for the proposed rectification is apparent from a reading of the order sheet as well as the facts as narrated at para 2 of this order. No objection thereto was raised by either party during hearing, even as it was clarified that the hearing had called only to allow them to state their objections, if any, thereto. We, accordingly, confirm the disallowance of the assessee's alternate claim of depreciation for the entire amount of WDV of the relevant asset, though for the reasons afore-stated, and for which reference may be made to the foregoing para (2) ....
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....ock of assets 'Furniture, fixture and electrical fittings'. Accordingly, the basis on which the disallowance has been confirmed by the tribunal, i.e., the vacation of the premises, and, accordingly, its' nonuser, would not hold. Reference in this matter stands made to the statement of depreciation at PB pg. 37, attention to which, it is claimed, was drawn by the assessee during the hearing of the assessee's appeal. 8. We have heard the parties, and perused the material on record. We find that the statement of the depreciation allowable under the Act (Annexure VIII to Form 3CD, at PB pg. 37) was made by the ld. Authorized Representative (AR) during hearing, specifically adverting to the opening WDV of the block of assets 'Furniture, fixture and electrical fittings', which is stated at Rs. 53,09,065/-. The tribunal has moved on the basis that the asset under reference is a building covered under Explanation 1 to section 32(1)(ii). The decision thus stands rendered on an incorrect factual premise or, in any case, one inconsistent with the contentions by the assessee in its respect, without meeting the same. The order by the tribunal, accordingly, contains a mistake apparent from reco....
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....tinue to use the same or discard an asset would only be within the exclusive domain of the assessee as its owner or user. Further, to the extent no sum has been realized on the discard of the asset, moneys payable u/s. 43(6)(c)(i)(B) would be nil. Further on, even where the amount under reference (or a part thereof), as presumed by the tribunal while passing its earlier order dated 30/9/2014, is a part of the block of assets 'building', or liable to be so considered, deprecation on that part of the WDV of the relevant block of assets can, in our view; the qualifying conditions of the relevant provision (section 43(6)(c)) being satisfied, be claimed. True, the deeming of ownership under Explanation 1 to section 32(1)(ii) would extend to the period for which the assessee holds lease or other right of occupancy of the premises, so that the assessee can no longer be considered as an owner of the relevant asset, i.e., either for the purposes of the relevant provision (u/s.32(1)(ii)), or even generally. So, however, how, one may ask, could one continue to be an owner of an asset which is sold or destroyed or demolished or even discarded? The condition of continuing ownership of a depreci....