1 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD INCOME TAX REFERENCE No. 187 of 1993 For Approval and Signature: THE HON'BLE MR.JUSTICE D.A.MEHTA HON'BLE MS.JUSTICE H.N.DEVANI =========================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 of any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? =========================================================== COMMISSIONER OF INCOME-TAX - Petitioner(s) Versus NACHMO MARKETING PVT. LTD. - Respondent(s) =========================================================== Appearance : MRS.M.M.BHATT for Petitioner No(s).: 1. None for Respondent No(s).: 1. =========================================================== CORAM :THE HON'BLE MR.JUSTICE D.A.MEHTA HON'BLE MS.JUSTICE H.N.DEVANI Date : 21/06/2005 2 ORAL JUDGMENT (Per : HON'BLE MS.JUSTICE H.N.DEVANI) 1 The Income Tax Appellate Tribunal, Ahmedabad Bench 'C' has referred the follow 3 4 5 ing question of law under Section 256(1) of the Income Tax Act,1961 (the Act) for determination by this Court at the instance of the Commissioner of Income Tax, Gujarat-I, Ahmedabad. “1. Whether the Appellate Tribunal is right in law and on facts in directing the Income-tax Officer to allow depreciation at the rate of 30% on diesel generating set? 2. Whether, the Appellate Tribunal is right in law and on facts in deleting the addition of Rs.39,441-31 in respect of unpaid sales tax liability invoking the provisions of sec.43B of the Income-tax Act ?” Mrs.M.M.Bhatt, learned Standing Counsel appears on behalf of the Revenue. Though served none appears on behalf of the respondent. 2 Mrs.M.M.Bhatt has fairly stated that the issue regarding rate of depreciation on diesel generating set stands concluded in favour of the revenue by a decision of this Court in the case of Commissioner of Income-tax Vs. Anang Polyfil Pvt.Ltd. (2004) 267 ITR 266 and the issue regarding invocation of the provisions of Sec. 43B in respect of unpaid Sales-tax liability stands concluded against the revenue by a decision of the Supreme Court in the case of Allied Motors (P) Ltd. Vs. Commissioner of Income-tax (1997) 224 ITR 677. 3 Applying the ratio of the aforesaid decisions to the facts of the present case question No.1 is answered in the Negative i.e. , in favour of the revenue and against the assessee and question No.2 is answered in the affirmative i.e., in favour of the asessee and against the revenue. 4 The reference stands disposed of accordingly, with no order as to costs. 6 (D.A.MEHTA,J) (H.N.DEVANI,J) m.m.bhatt