TaxTMI 
TaxTMI 
2018 (8) TMI 1639
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.... and claimed the same as deduction by following the decision of the Hon'ble Jurisdictional High Court in the case of Exide Industries Ltd reported in 292 ITR 470 (Cal). The ld AO sought to disallow the same in terms of section 43B(f) of the Act as the same was not paid within the due date of filing the return of income. The ld AO observed that the said decision has been stayed by the Hon'ble Supreme Court and accordingly disallowed the provision for leave encashment on the ground that the same is allowable only on payment basis in terms of section 43B(f) of the Act, which was upheld by the ld CITA. Aggrieved, the assessee is in appeal before us . 2. 2. We have heard the rival submissions. We find that though the Hon'ble Calcutta High Court in the case of Exide Industries Ltd vs Union of India reported in 292 ITR 470 (Cal) had struck down the provisions of section 43B(f) of the Act as unconstitutional, the revenue had carried the matter further to the Hon'ble Supreme Court which initially in Special Leave to Appeal (Civil) CC 12060 / 2008 dated 8. 9. 2008 had held as under:- "The petition was called on for hearing today. Upon hearing counsel the court made the f....
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....e figure of Rs. 6,41,255/- for disallowance in the assessment. The action of the ld. AO was upheld by the ld. CIT(A). Aggrieved the assessee is in appeal before us. 3. 2. We have heard rival submissions. We find that the Co-ordinate Bench of this Tribunal in the case of REI Agro Ltd. reported in 144 ITD 141 had held that only those investments which had yielded dividend income to the assessee are to be considered for the purpose of computing disallowance under third limb of Rule 8D(2) of the Rules. Accordingly, we direct the ld. AO to re-compute the disallowance in the light of above mentioned decision of this Tribunal for the purpose of normal computation of income under the Act. Accordingly, ground no. 2(a) raised by the assessee is allowed for statistical purpose. 3. 3. With regard to disallowance u/s 14A read with Rule 8D of the Rule while computing the book profits u/s 115JB of the Act in the sum of Rs. 6,41,255/- is concerned , we find that this issue has been decided by the Hon'ble Special Bench of Delhi Tribunal in ACIT vs. Vireet Investment Pvt. Ltd. reported in [2017] 82 Taxmann. Com 415 (Del. Trib. )(SB) wherein it was held as under: "6. 2. 2. In view of t....
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....al submissions. We find that this issue is no longer res integra in view of the decision of Hon'ble Madras High Court in the case of CIT vs. Shri T. P. Textiles Pvt. Ltd. reported in 394 ITR 483 (Mad) wherein it was held as under: "6. 1. Therefore, the only issue, which arose for consideration before the Tribunal was, whether the additional depreciation, in the sum of Rs. 8,03,233/- could be claimed by the assessee in the relevant assessment year, i. e. , the assessment year 2011-12, in respect of machinery, which was purchased and used for less than 180 days, in the previous year, 2009-10 (i. e. , the assessment year 2010-11). 7. The Tribunal, relying upon its own judgment in the case of Fresh & Honest Cafe Ltd. V. DCIT, dated 10. 08. 2016, passed in I. T. A. No. 1373/Mds/2016 allowed the appeal of the Assessee. 7. 1. Pertinently, in the judgment of the Tribunal, delivered in the case of Fresh & Honest Cafe Ltd. V. DCIT, reliance was placed on the judgment of the Karnataka High Court in the case of : CIT V. Rittal India (P. ) Ltd. , [2016] 66 taxmann. com 4 (Karnataka). 7. 2. The issue, which arose for consideration before the Tribunal in the Fr....
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.... per cent of the actual cost of such machinery or plant shall be allowed as deduction under clause (ii). " (Emphasis is ours) 8. Pertinently, the Karnataka High Court, in a decision rendered in the case of CIT V. Rittal India (P. ) Ltd. , [2016] 66 taxmann. com 4 (Karnataka), has interpreted the aforesaid provision, in particular, the proviso incorporated therein. The Karnatake High Court, in the said case, has come to the conclusion that additional depreciation granted under clause (iia) of Section 32(1) of the Act is for the purpose of affording benefits to the Assessees and, to encourage industrialization, either by setting up a new industrial unit, or, by expanding a new industrial unit, by purchasing and installing a new machinery, or, plant, and putting the same to use for the purposes of business. 8. 1. The Court, went on to say, that while, the proviso appearing in Section 32(1) restricts the claim of depreciation to 50% of the amount calculated at the percentage prescribed for an asset referred to in clause (iia), nowhere does it restrict allowance of the balance 50% of the additional depreciation, which in percentage terms, would be 10% in the succeeding....
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.... " 9. We are in respectful agreement with the view taken by the Division Bench of the Karnataka High Court, passed in CIT V. Rittal India (P. ) Ltd. (No. 1) 10. According to us, these are provisions included by the Legislature in the Statute to give a fillip to new industries as also to existing industries, which seek to expand its sway, by investing in and making use of new plant and machinery. 10. 1. The plain language of Section 32(1)(iia) read along with the relevant proviso would have us come to the conclusion that, there is no limitation in the assessee claiming the balance 10% of additional depreciation in the succeeding assessment year. 10. 2. As a matter of fact, with effect from 01. 04. 2016, the ambiguity, if any, in this regard, in the mind of the Assessing Officer, stands removed by virtue of the Legislature, incorporating in the Statute, the necessary clarificatory amendment. 10. 3. The amendment brought in the relevant proviso obtaining in Section 32, reads as follows: " 32. (1) . . . . . . Provided also that where an asset referred to in clause (iia) or the first proviso to clause (iia), as the case may ....