4 ^ 1 -..n^ ^ IN THE HIGH COURT OF JUbICATURE AT BILASPUR Tax Case NO.n^/2010 OJVJSJS APPELLANT. ^^V^.. z^Commissioner of Income Tax, ^Tv^ ^ ^••••'::, (Reven,..)<^.^ ^.^ ^ cA^ sy^- ^<"-...-r::~.-.;- i%i.-R&SPONDENT Vs Hira •Piwer <& &+ee+-Ltd.,-&^/\, "^/^ Urla Industrial Area, Raipur (CG) (Assessee) APPEAL UNbER SECTION 260-A OF THE INCOME TAX ACT. 1961 HIGH COURT OF CHHATTISGARH AT BILASPUR Tax Case No.178 of 2010 J Appellant (Revenue) Respondent versus Commissioner of Income Tax, Raipur. Hira Ferro Alloys Ltd. D.B.: Hon'ble Shri Satish K. Aenihotri & Hon9ble Shri Radhe Shyam Sharma, JJ. Present: Shri Rajeev Shrivastava, Standing Counsel for the Appellant/Revenue. Shri Shashank Dubey, Senior Advocate with Shri Neelabh Dubey, Advocate for the respondent/Assessee. APPEAL UNDER SECTION 260-A OF THE INCOME TAX ACT. ORAL ORDER (Passed on 05th day ofSeptember, 2011) Per Satish K.Asnihotri, J^ 1. In instant appeal has been filed by the Commissioner oflncome Tax, Raipur {hereinafter referred to as tthe RevenueJ) against the order dated 04.06.2010 passed by the Income Tax Appellate Tribunal, Bilaspur Bench, (for short tthe Tribunal') in Appeal No. 629/08-09. The appeal ofthe Revenue was admitted on the following substantial questions oflaw: "Whether on thc facts and in the circumstances of the case and in law the tribunal was justified in holding that the respondent was entitled for depreciation on the plant and machinery for the year even though the plant could not be run? " 2. The facts, in brief, relevant for adjudication of the substantial question of law, as aforestated, are that the Assessing Officer (for short (the A0)} had disallowed the depreciation claimed on the plant and machinery by the assessee for the assessment year y 11 // 3. @ 2002-2003 on the ground that as no production during the previous year., meaning thereby the plant and machinery was not in use. The AO, vide order dated 31.12.2008 had deleted the depreciation. Thereagainst, an appeal was filed by the assessee before the Commissioner of Income Tax (Appeal) [for short 'CIT(A)] which was allowed by the order dated 19.11.2009 holding that the assessee did not permanently close down production in its establishment and for a temporary period, the factory and office was mn, therefore, the assessee was entitled for depreciation on the plant and the machinery. Being aggrieved, the Revenue filed an appeal before the Tribunal. The Tribunal, vide order dated 04.06.2010 dismissed the appeal upholding the findings recorded by the CIT (A). On perusal of the orders passed by the authorities below and having regard to the fact that during the assessment period, there was no production and fiirther, the AO has also assessed the income tax as nil, in view of the instructions No. 5 of 2008, dated 15 May, 2008, the above stated appeal is not maintainable as the tax effect was nil. 4. Accordingly, the appeal is dismissed. Amit Sd/- Satish K.Agnihotri Judge Sd/- R.S.Sharma Judge