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Income Tax Appellate Tribunal, “C” BENCH, MUMBAI
Before: HON’BLE SHRI MAHAVIR SINGH, JM & HON’BLE SHRI MANOJ KUMAR AGGARWAL, AM
Per Manoj Kumar Aggarwal (Accountant Member) 1. Aforesaid appeal by revenue for Assessment Year [in short referred to as ‘AY’] 2013-14 contest the order of Ld. Commissioner of Income- Tax (Appeals)-8, Mumbai, [in short referred to as ‘CIT(A)’], Appeal No.
M/s. Positive Packaging Industries Ltd. Assessment Year :2013-14 CIT(A)-8/IT-490/16-17 dated 09/10/2017 on following effective grounds of appeal: -
1. Whether in the facts and circumstances of the case and in law, the Ld. CIT(A) erred in deleting the balance additional depreciation of Rs.1,02,28,246/- u/s 32(l)(iia) of the IT Act, pertaining to Plants & Machineries acquired and installed in the immediately preceding year but were put to use for less than 180 days in that year.
2. Whether in the facts and circumstances of the case and in law, the Ld. CIT(A) erred in giving retrospective effect to the third proviso below clause (ii) to sub section (i) of section 32.
3. The appellant prays that the order of CIT(A) on the above ground be reversed and that of the Assessing Officer be restored."
The assessment for impugned AY was framed by Ld. Assistant Commissioner of Income Tax-Circle 3(2)(2), Mumbai [AO] u/s 143(3) on 29/12/2016 wherein the income of the assessee was determined at Rs.102.28 Lacs under normal provisions after disallowance of additional depreciation for Rs.102.28 Lacs as against Nil return e-filed by the assessee on 28/11/2013. The assessee being resident corporate entity was stated to be engaged in manufacturing of flexible packaging material, printing cylinders & metallized films.
During assessment proceedings, upon perusal of depreciation schedule, it transpired that the assessee claimed additional depreciation of Rs.102.28 Lacs u/s 32(1)(iia) on the additions made in fixed assets used for the period of less than 180 days in AY 2012-13. Similar claim was made in the impugned AY and therefore, Ld. AO proceeded to disallow the same on the ground that the concerned plant & machinery was already used in various preceding years and it was no longer new plant & machinery. Although the assessee defended the same on the strength of certain judicial pronouncements, however, not convinced, the M/s. Positive Packaging Industries Ltd. Assessment Year :2013-14 additional depreciation was disallowed and added to the income of the assessee.
The Ld. first appellate authority, relying upon its own decision in assessee’s own case for AY 2012-13, allowed the assessee’s claim. Aggrieved, the revenue is in further appeal before us.
The Ld. Authorized Representative for Assessee [AR], at the outset, drew attention to the fact that the Tribunal has confirmed the stand of Ld. first appellate authority for immediately preceding AY 2012- 13 vide dated 31/01/2019 and therefore, the matter stood covered in assessee’s favor. Although Ld. DR supported the stand of Ld. AO but failed to controvert the aforesaid submissions.
In view of the admitted position, respectfully following the earlier view of co-ordinate bench of the Tribunal vide ITA No. 6360/Mum/2017 dated 31/01/2019, we dismiss the appeal.
The appeal stands dismissed. Order pronounced in the open court on 22nd March, 2019. Sd/- Sd/- (Mahavir Singh) (Manoj Kumar Aggarwal) �ाियक सद� / Judicial Member लेखा सद� / Accountant Member मुंबई Mumbai; िदनांक Dated : 22/03/2019 Sr.PS, Jaisy Varghese आदेशकी�ितिलिपअ�ेिषत/Copy of the Order forwarded to : अपीलाथ�/ The Appellant 1. ��थ�/ The Respondent 2. आयकरआयु�(अपील) / The CIT(A) 3. आयकरआयु�/ CIT– concerned 4. िवभागीय�ितिनिध, आयकरअपीलीयअिधकरण, मुंबई/ DR, ITAT, Mumbai 5. गाड�फाईल / Guard File 6.