Rajasthan High Court - Jaipur
Deputy Commissioner Of Income Tax vs Shakti Enterprises on 31 January, 2001
Equivalent citations: (2001)70TTJ(NULL)657
ORDER
S.R. Chauhan, J.M. This appeal by revenue for assessment year 1989-90 is directed against the order of Commissioner (Appeals), Jodhpur, dated 21-1-1992.
2. The assessee had claimed 100 per cent depreciation on "flour mill rollers" but the assessing officer making summary assessment under section 143(1)(a) allowed only 33.33 per cent depreciation as on the other machinery and plant, and disallowed the depreciation claim of Rs. 1,75,742 being in excess of 33.33 per cent on flour mill rollers, by way of prima facie adjustment under section 143(1)(a). The assessee moved petition under section 154(1)(b) seeking rectification of the intimation issued under section 143(1)(a) whereby prima facie adjustment of depreciation claim over and above 33.33 per cent was made and thus disallowed. The assessing officer rejected the assessee's petition for rectification under section 154 so far as it related to claim of 100 per cent depreciation on flour mills roller, vide his order, dated 30-9-1991. Hence, the assessee is in appeal before the Tribunal.
3. We have heard the arguments of both the sides and also perused the records.
4. The revenue has raised the sole ground disputing the learned Commissioner (Appeals)'s direction to assessing officer to allow depreciation @ 100 per cent on flour mill rollers as against 33.33 per cent. The learned Departmental Representative of revenue has contended that this is the first year of assessee's business and this year the machinery was installed. He has contended that in the revised return the assessee claimed 100 per cent depreciation on rollers. He has contended that at the time of installation of machinery rollers form part of entire plant and they were not usable separately independently, so out of assessee's claim of 100 per cent depreciation only 33.33 per cent was allowed and the rest was disallowed and added. He has cited Mysore Dasa Prakash v. CIT (1989) 177 ITR 38 (Mad) in his support. As against this the learned authorised representative of assessee has contended that no prima facie adjustment can be made in respect of a debatable matter. He has contended that in the Schedule given in rules there was spelling mistake in the term "flour mill" inasmuch as the term "flour" was spelled therein as "floor" which meant quite differently. He has referred to pp. 4 of paper book being Appendix 1 of Income Tax Rules as published in Taxman, 1989 Edition, wherein the word "floor mills roller" were printed instead of "flour mills roller". He has contended that this was simply due to printing error, and correctly it should have been "flour". He has referred to page 1 of paper book and contended that there the term mentioned is "flour mills" and it is from the 1985 Edn. He has contended that the current provision for assessment years 1988-89 to 2000-2001 (Appendix 1) is on page 2 of paper book wherein "flour mills rollers" is mentioned, and so disallowing the assessee's claim for the reason that in the rule "floor mill rollers" are printed instead of "flour mill rollers" is not justified. He has contended that besides, the assessing officer had proceeded against the assessee under section 143(3) and had issued notice under section 143(2), so thereafter issuing intimation under section 143(1)(a) is not legally valid. He has cited Gujarat Poly-AVX Electronics Ltd. v. Deputy CIT (1996) 222 ITR 140 (Guj) and Modern Fibotex India Ltd. & Anr. v. Deputy CIT & Ors. (1995) 212 ITR 496 (Cal) in his support. He has also contended that the issue as to whether 100 per cent depreciation is allowable on rollers or not was a debatable issue at the relevant time and the same could not be the subject-matter of prima facie adjustment under section 143(1)(a). He has cited Jaipur Udyog Ltd. v. Income Tax Officer (1985) 156 ITR 377 (Raj) and Kamal Textiles & Ors. v. Income Tax Officer & Ors. (1991) 189 ITR 339 (MP) in this regard.
5. We have considered the rival contentions, the relevant material on record as also the cited decisions. Mysore Dasa Prakash v. CIT (supra) is distinguishable on facts. In the instant case a separate rate of depreciation is provided for rollers of flour mill and the printing of the word "floor" instead of "flour" was only due to mistake. In any case the issue as to whether the depreciation on flour mill rollers should, at initial stage, be allowed at the rate of 100 per cent as provided in Appendix 1 to Income Tax Rules, 1962 (page 2 of paper book), or the depreciation thereon should be allowed at general rate of 33.33 per cent as is allowed on other plant and machinery is obviously a debatable issue and does involve proper interpretation of the provisions of law, and so the same, in our considered opinion, could not form the subject-matter of disallowance by way of prima facie adjustment under section 143(1)(a). It is settled law that the debatable issues or issue involving lengthy arguments for an appropriate decision thereon do not fall within the scope of prima facie adjustment under section 143(1)(a) of the Act. Even apart, the assessing officer having issued notice dated 19-12-1990, calling upon the assessee to appear before him with details as per enclosure, on 8-2-1991, it was thereafter no more permissible for assessing officer to make prima facie adjustment or to issue intimation under section 143(1)(a) as has been held by the Hon'ble Calcutta High Court Modern Fibotex India Ltd. & Anr. (supra) and by the Honble Gujarat High Court in Gujarat Poly-AVX Electronics Ltd. (supra). In that view of the matter considering all the facts and circumstances of the case we find that impugned order of the learned Commissioner (Appeals) deleting the disallowance of Rs. 1,75,742, being the amount of assessee's claim for depreciation on flour mill rollers over and above 33.33 per cent to be quite proper and justified and we find no fault therewith.
6. The learned Departmental Representative of revenue has filed a petition on 21-11-2000, seeking permission of the Tribunal to raise an additional ground as ground No. 2 to the following effect :
"On the facts and in the circumstances of the case the Commissioner (Appeals) has erred in deleting additional tax of Rs. 20,300 levied while processing the return under section 143(1A). "
The learned Departmental Representative of revenue has contended that this additional ground be allowed to be taken and be admitted as ground No. 2 as the same is quite necessary and arises out of the impugned order of the learned Commissioner (Appeals). The learned autborised representative of assessee has opposed the petition and contended that this ground does not arise from the learned Commissioner (Appeals)'s order and for this, he has referred to the last para of the learned Commissioner (Appeals)'s order wherein the learned Commissioner (Appeals) has rejected the grounds other than those pertaining to the disallowance of depreciation on flour mill rollers observing that the allowance of 100 per cent depreciation on flour mill rollers the other grounds of appeal become infructuous. Obvious as it is the learned Commissioner (Appeals) has neither allowed any ground of appeal seeking deletion of levy of additional tax under section 143(1A) in his impugned order, nor has he mentioned in his impugned order that the amount or additional tax is deleted, on the contrary he has rejected all the other grounds of assessee except those pertaining to non-allotting of 100 per cent depreciation, and allowing only 33.33 per cent depreciation on flour mill rollers. Although we may painfully observe that even a copy of grounds of appeal raised by the assessee in first appeal before learned Commissioner (Appeals) has not been placed on record before us and so we are not able to appreciate as to what the other grounds were which the assessee has raised before learned Commissioner (Appeals). Be that as it may it is evident from the record as also from our discussion made above, that the additional ground sought to be raised by the learned Departmental Representative of revenue does not arise out of the impugned order of the learned Commissioner (Appeals). Even otherwise, the issue of additional tax is only consequential to the issue contained in ground No. 1, decided by us above. We, therefore, rejected the learned Departmental Representative's petition for admitting the additional ground.
7. In the result, this appeal of revenue is dismissed.