2017 (5) TMI 1606

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....owing substantial questions of law: "(i) Whether the Tribunal was legally justified in holding that no penalty u/s 271(1)(c) could be levied when the income is computed u/s 115JB by not considering the provisions of Sections 115JB(5)? (ii) Whether the Tribunal was legally justified in cancelling the penalty levied u/s 271(1)(c) of Rs. 6,71,61,350/- out of which penalty of Rs. 1,02,20,616/- was upheld by the CIT(A)?" 3. This Court in the case of The Commissioner of Income Tax vs. Gilleette India Ltd. in D.B. Income Tax Appeal No.349/2011, decided on 23.05.2017 wherein this Court has observed as under: "3. Counsel for the appellant has taken us to the order of the Assessing Officer and CIT(A) and contended that t....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....pondent Mr. Jhanwar has contended that the issue No.1 & 2 are squarely covered by the decision of Supreme Court in the case of Commissioner of Income Tax vs. Woodward Governor India (P) Ltd. (2009) 312 ITR 254 and both the issues with regard to fluctuation loss are to be decided in favour of the assessee." 4.1 In that view of the matter, the issue is answered in favour of the assessee and against the department. 5. In so far as issue No.(iii) is concerned, the Tribunal relying upon the decision of Delhi High Court in the case of CIT vs. Bharat Aluminum Company Ltd. 187 Taxman 111, 124(Del.) and in the case of CIT vs. Yamaha Motors India Pvt. Ltd. 226 CTR 304 and the Gujarat High Court in the case of CIT vs. Sonal Gum Indus....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....,65,810/- in A.Y. 2004-05 and Rs. 1,26,23,967/- in A.Y. 2005-06 when such amount was reduced from the block of plant & machinery. The example given by Ld. AR in his written note amply illustrate the mechanism of allowance of depreciation u/s 32 after the block concept of asset. Therefore, the notional disallowance of depreciation in respect of plant & machinery of Duracell batteries which formed part of the block of assets of the assessee is not permitted in law. 53. The Delhi High court of CIT V/s. Bharat Aluminium Company Ltd. 187 Taxman 111, 124 (Del.) held that though as per section 32(1), in order to get entitled to claim depreciation, asset is to be owned by the assessee and it is also be used for the purpose of busi....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....e of business in the earlier years for which depreciation is allowed. 56. Mumbai ITAT in case of M/s. Swati synthetics Lts. V/s. ITO 2010 TIOI. 78 held that depreciation is allowable on the entire block even if some of the assets of the block have not been used. The use of the individual asset for the purpose of business can be examined only in the first year when the asset is purchased. In subsequent years use of block of assets is to be examined. Existence of individual assets in the block of assets itself amounts to use for the purpose of business." 5.1 In view of the decisions of two High Courts and one decision of the Tribunal, the Tribunal has not committed any error and we affirm the view taken by the Tribu....