Punjab-Haryana High Court
Cit vs Sona Woollen Mills (P) Ltd. on 28 October, 2006
Equivalent citations: [2008]300ITR202(P&H)
Bench: Adarsh Kumar Goel, Rajesh Bindal
JUDGMENT
1. Following question has been referred for the opinion of this Court by the Income Tax Appellate Tribunal, Chandigarh Bench, Chandigarh, arising out of its order dated 8-8-1997 in ITA No. 102/Chd./94, for the assessment year 1989-90:
Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in confirming the order of the Commissioner (Appeals) allowing depreciation as per Income Tax Rules to the assessee for computing the quantum of income under Section 115J primarily on the ground that the same was based on the views expressed by the then Chairman of the CBDT in a departmental publication?
2. The assessee declared its income nil for the assessment year 1989-90. It calculated its income after claiming depreciation as per provisions of the Income Tax Act, 1961 (for short, 'the Act), which was rejected by the assessing officer on the ground that depreciation for purposes of Section 115J of the Act was permissible as per Schedule XIV of the Companies Act, 1956. The Commissioner (Appeals) allowed the claim of the assessee holding that depreciation provided under the Companies Act was the minimum but there was no bar to higher depreciation being claimed by the assessee and, thus, for purposes of Section 115J of the Act, depreciation actually debited could be allowed. The Tribunal upheld the said view.
3. We have heard learned Counsel for the parties.
4. Learned counsel for the assessee has relied upon judgment of the Hon'ble Supreme Court in Apollo Tyres Ltd v. CIT , wherein, it was observed that words "in accordance with the provisions of Parts II and III of Schedule VI to the Companies Act" were used for limited purpose of empowering the assessing officer to rely upon the authentic statement of accounts of the company' The assessing officer could not rescrutinise the accounts to see whether the same were in accordance with the provisions of the Companies Act. Income acceptable to the authorities under the Companies Act has to be treated as income for purposes of Section 115J of the Act. Only power of the assessing officer is to see that accounts are certified by the authorities under the Companies Act and, there is no jurisdiction to go behind the net profit shown in the profit and loss account.
5. We find that the Kerala High Court in CIT v. Dynamic Orthopedics (P.) Ltd , has taken the view that for purposes of Section 115J of the Act, depreciation could not be calculated as per provisions of the Income Tax Rules. Similar view has been taken by the Madhya Pradesh High Court in CIT v. Vandana Rolling Mills Ltd. , Kerala High Court in CIT v. Malayala Manorama Co. Ltd. . The Gujarat High Court in Dy. CIT v. Vardhman Fabrics (P.) Ltd. upheld the view taken by the Tribunal that the Circular of the Company Law Board laid down only minimum depreciation for purposes i5f distribution of the dividend and the company could decide to give higher depreciation.
6. In view of judgment of the Hon'ble Supreme Court, view taken by the Madhya Pradesh High Court and Kerala High Court cannot be preferred. We, accordingly, answer the question against the revenue and in favour of the assessee.
7. Reference is disposed of accordingly.