COMMISSIONER OF INCOME TAX Vs. PRAKASH INDUSTRIES LTD

JUDGEMENT

(1.) THIS order shall dispose of Civil Misc. Nos. 8118 CII of 2010 and C.M.No. 8121 CII of 2010. Both these applications have been filed by the assessee with a prayer for disposal of ITA Nos. 46 and 47 of 2003 pleading that for the assessment year 1990-91, the commissioner of Income Tax (A), Rohtak has passed an order in respect assessment year 1990-91 on 4.1.1999 in favour of the assessee and against the Revenue. According to the CIT(A), the Assessing Officer committed an order by including the amount of deprecation of Rs. 2,73,87,218/-for the purpose of ascertaining book profits. Accordingly, the CIT(A) directed the Assessing Officer to exclude the same for the purposes of determination under Section 115 J of the Income Tax, 1961(for brevity 'the Act'). The submission made by the assessee-applicant is that the order passed on 4.1.1999 (R.2) has attained finality in respect of the assessment year 1990-91 as no appeal has been preferred by the Revenue before the Tribunal.

(2.) ON receipt of notice of the application, Mr. Sanjiv Kaushik, Advocate has put in appearance on behalf of the non applicant-appellant and could not controvert the averments made in the application. It has not been disputed that the order dated 4.1.1999 passed by the CIT(A) has attained finality in respect of the assessment year 1990-91. MAIN APPEAL Coming to the main appeal, it is pertinent to notice few facts in respect of the assessment year 1989-90. The assessee had filed return on 29.12.1989 declaring the income (loss) of Rs.2,27,31,201/-and income under Section 115 J of the Act amounting to Rs. 1,60,00,606/-. However, the return was revised on 22.2.1991 declaring a total income (loss) of Rs. 3,99,31,911/-and income under Section 115 J of the Act was declared as 'Nil'. The Assessing Officer, however computed profit under Section 115 J of the Act at Rs. 4,10,60,334/-. Accordingly, the Assessing Officer worked out profit under Section 115 J of the Act as under: ITA No. 46 of 2003 3 53,33,553 Profit as per P&L account as per Profit and Loss A/c as per original return. 71394144 Add. Depreciation 76727697 35667363 Less: Depreciation as per Companies Act Book Profits 41060334 12318100 Total Income under Section 115 J

(3.) ON further appeal by the assessee, the Tribunal decided the issue in favour of the assessee by citing the judgement rendered by the Ahmedabad Bench of the Tribunal rendered in the case of ACIT v. Bell Ceremaics Ltd. (1999) 69 ITD 156. The view of the Tribunal is discernible from para 17 of the order which reads thus: