TaxTMI 
TaxTMI 
2023 (9) TMI 892
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.... 2011. 2. The following substantial questions of law have been raised: "(a) Whether on the facts and in the circumstances of the case and in law, the Hon'ble ITAT has erred in holding the assessment order was not erroneous and prejudicial to the interests of the Revenue on the issue of excess depreciation claimed on windmill @80% as prescribed under IT Act instead of the rate of 15.33% for a continuous plant as per companies Act for the purpose of calculation of book profit u/s 115JB of the IT Act? (b) Whether in the facts and circumstances of the case and in law, the Hon'ble ITAT has erred in holding the assessment order is not erroneous and prejudicial to the interests of the Revenue on the issue of determination of fair market valu....
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....regular provision of tax has been calculated at Rs. 5,92,063/- which is higher than MAT on book profit u/s 115JB of the Act, the income as per regular provision of Income Tax was adopted as total income of the Assessee. (iii) However, in light of the facts narrated above, assessee's book profit u/s 115JB of the Act had been under-assessed at Rs. 2,87,88,357/- and MAT on the same Rs. 43,18,253/- as against tax paid Rs. 5,92,063/- computed in the Assessment Order. (iv) It is seen that assessee made related party payments to M.C. Metal Pvt Ltd on account of job work payments Rs. 48,49,883/- sales Rs. 1,86,14,467/- & job-work receipt Rs. 9,22,254/-. No verification regarding it being at 'Fair Market Value' as per the provisions of sec. 40....
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..... The High Court of Kerala had on the same question of law allowed the Appeal of the revenue in the case of CIT vs. Dynamic Orthopaedics Limited, taking a view similar as that of the one in the case of Malayala Manorama Co. Ltd vs. CIT, reported in (2008) 300 ITR 251. The Hon'ble Supreme Court had in the case of Malayala Manorama Co. Ltd vs. CIT, reported in (2008) 300 ITR 251, reversed the view of the Kerala High Court which judgement was pending reconsideration of the larger Bench as observed in the case of Dynamics Orthopaedics P. Ltd vs. CIT., reported in (2010) 321 ITR 300. Hence, ITAT had erred in relying on the case of Malayala Manorama (supra). 5. Mr. Manish Shah, learned counsel appearing on caveat would submit that in the case of....
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....claim of depreciation charged at the rates prescribed by the Income-tax Rules. The Commissioner (Appeals) as well as the Tribunal allowed the assessee's claim and directed the Assessing Officer to allow the claim of depreciation as per the Income-tax Rules for the purposes of computing the book profit under section 115J by substituting the rates of depreciation prescribed in Schedule XIV of the Companies Act, 1956. In appeal, the Supreme Court held that where assessee was consistently charging depreciation in its books of account at rates prescribed in Income-tax Rules and accounts of assessee had been prepared and certified as per provisions of 1956 Act, Assessing Officer would not have any jurisdiction under Section 115J to rework net pro....
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....ed to profit and loss account was not violative of provisions of Companies Act and ITAT has not erred in cancelling order passed by Commissioner under section 263 of the Act. Again, in the case of CIT Ludhiana v. Sona Woollen Mills (P) Ltd. [2007] 160 Taxman 22 (Punjab & Haryana), assessee claimed depreciation as per provisions of income tax Act for computing quantum of income under section 115J. The Assessing Officer rejected claim of assessee on ground that depreciation for purposes of section 115J was permissible as per Schedule XIV of Companies Act. The Commissioner (Appeals) allowed claim of assessee holding that depreciation provided under Companies Act was minimum but there was no bar to higher depreciation being claimed by assessee ....
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....al is concerned." 7. Though, as per Mr. Patel's submission the case of Malayala Manorama (supra) is pending reconsideration before the larger Bench of the Hon'ble Supreme Court, which took the view supporting the assessee, in light of the decision of the Supreme Court in Ashok Sadarangani (supra) during the pendency of reference, other proceedings involving the same issue would not remain stayed. Para 29 in the case of Ashok Sadarangani (supra), read as under: "29. As was indicated in Harbhajan Singh case, the pendency of a reference to a larger bench, does not mean that all other proceedings involving the same issue would remain stayed till a decision was rendered in the reference. The reference made in Gian Singh case need not, theref....