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Income Tax Appellate Tribunal, “D” BENCH, MUMBAI
O R D E R भहावीय ससिंह, उऩाध्मऺ के द्वाया / PER MAHAVIR SINGH, VP: These appeals of assessee are arising out of orders of the Commissioner of Income Tax (Appeals)]-10, Mumbai [in short CIT(A)], in Appeal Nos. CIT(A)-10, Mumbai/10323/2016-17, CIT(A)- Dharmanandan Diamonds P Ltd.; AY 12-13 to 15-16 10, Mumbai/11232/2016-17, CIT(A)-10, Mumbai/11234/2016-17, CIT(A)-10, Mumbai/10225/2017-18 vide dated 24.06.2019. The Assessments were framed by the Dy. Commissioner of Income Tax, Circle-5()(2), Mumbai (in short ITO / AO) for the A.Ys. 2012-13, 2013-14, 2014-15 vide even date 18.03.2016, 28.12.2016, 22.12.2017 under section 143(3) of the Income-tax Act, 1961 (hereinafter ‘the Act’).
The only common issue in these four appeals of Revenue is as regards to the order of CIT(A) allowing the claim of depreciation on enhanced value of assets i.e. the Written Down Value (WDV) of the asset as against the disallowance made by the Assessing Officer by invoking the provisions of Section 43(b)(c) of the Act and explanation 3 to section 43(1) of the Act. For this Revenue has raised identically worded grounds and facts and circumstances of the case are also exactly identical. Hence, we will the facts and grounds from Assessment Year 2012-13 in . The Grounds read as under:-
“On the facts and circumstances of the case and in law, the ld. CIT(A) erred in deleting the depreciation claimed whereas the same is not allowable as per the provisions of section 43(6)(c)(ii) and explanation 3 to section 43(1) of the Income-tax Act, 1961? On the facts and circumstances of the case and in law, the Ld. CIT(A) erred in deleting the depreciation claimed of ₹2,78,82,751/- whereas the same is not allowable as per the provisions of section 43(6)(c)(ii) and explanation 3 to section 43(1) of the Income-tax Act, 1961?.” Dharmanandan Diamonds P Ltd.; AY 12-13 to 15-16 3. At the outset, the learned Counsel for the assessee stated that the issue is fully covered by Tribunal’s decision in assessee’s own case for Assessment Year 2009-10 in ITA No.3861/Mum/2014 for Assessment Year 2009-10 vide order dated 21.06.2017 which was consequently followed in Assessment Year 2010-11 in ITA No. 623/Mum/2019 for Assessment Year 2010-11 vide order dated 16.03.2020, wherein the Tribunal has allowed the claim of assessee vide Para 6 to 6.2 as under: - “6. We have heard the rival submissions and perused the relevant materials on record. As mentioned earlier the learned CIT(A) has followed the order of his predecessor-in- office for AY 2009-10 and dismissed the appeal. Aggrieved by the order of the learned CIT(A) for AY 2009-10, the assessee filed an appeal before the Tribunal. The only ground of appeal was against the “confirmation of disallowance of depreciation to the tune of Rs.22,28,71,726/- by upholding the order of the AO allowing depreciation of Rs.12,92,66,889/- as against claimed by the assessee- company at Rs.35,21,38,615/- including additional depreciation of Rs.35,81,977/- by holding that the assessee is entitled to claim depreciation at WDV of the erstwhile firm and not at the cost at which the assets were acquired by the assessee-company upon succession, even when all the conditions as envisaged in section 47(xiii) of the Act were satisfied.
So that was the only ground of appeal before the Tribunal for AY 2009-10. The Tribunal vide order dated 21.06.2017 in assessee’s own case held : Dharmanandan Diamonds P Ltd.; AY 12-13 to 15-16 “After examining and considering the cases law as relied by the ld AR and ld DR we find that the assessee is squarely covered by the ratio laid down by the cases relied by the ld AR whereas the decisions referred and relied by the ld DR are distinguishable in facts and therefore not applicable in the instant case of the assessee. Accordingly we set aside the order of CIT(A) and hold that the assessee is entitled to depreciation on the enhanced cost at which the assessee has taken over the assets and direct the AO to allow the depreciation as claimed by the assessee of Rs,35,21,38,615/-. In the result, the appeal of the assessee stands allowed.”
6.1 We further find that same issue arose before the ITAT “D”Bench, Mumbai in assessee’s own case for AY 2011-12. The Tribunal vide order dated 15.03.2019 followed the order of the Coordinate Bench for AY 2009- 10 and allowed the appeal by observing as under: