Law:

Section:

JUDGMENT R. Sudhakar, J. - This batch of Tax Case (Appeals) are filed by the Revenue challenging the orders of the Income Tax Appellate Tribunal on the ground that the assesees in the above Tax Case (Appeals) have not exercised their option to claim depreciation under Section 32 of the Income Tax Act in the manner prescribed under second proviso to Rule 5(1A) of the Income Tax Rules before filing their return of income. 2. Since the issue involved in all the above Tax Case (Appeals) are one and the same, common order is passed in the above matters. 3. The brief facts common to all the above Tax Case (Appeals) are as follows: The respondent/assessee in each of the cases, which are companies, have installed wind electric generator and claimed depreciation at the rate prescribed under Rule 5(1) Appendix -I of the Income Tax Rules. The Assessing Officer was of the view that the assessee in each of the cases should exercise their option in terms of second proviso to Rule 5(1A) prior to the filing of return, which they failed to do and therefore they would not be entitled to depreciation in terms of Rule 5(1) Appendix - I, but only under Rule 5(1A) Appendix - IA of the Income Tax Rules. Rule 5(1A) second proviso reads as follows: "Provided further that the undertaking specified in clause (i) of sub-section (1) of section 32 of the Act may, instead of the depreciation specified in Appendix IA, at its option, be allowed depreciation under sub-rule (1) read with Appendix I, if such option is exercised before the due date for furnishing the return of income under sub-section (f) of section 139 of the Act" 4. Aggrieved by the orders of the Assessing Officer, the assessees went on appeal before the Commissioner of Income Tax (Appeals). In some of the cases, it appears, the Commissioner of Income Tax (Appeals) following the decision of the Tribunal in the case of K.K.S.K.Leather Processors (P.) Ltd. v. ITO [2010] 126 ITD 215 (Chennai) allowed the appeals and in some cases, the Commissioner of Income Tax (Appeals) dismissed the appeals. 5. Aggrieved by the orders of the Commissioner of Income Tax (Appeals), both the Revenue, as against the granting of relief to the…

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