- (1.) Following question has been referred for the opinion of this Court by the Income Tax Appellate Tribunal, Chandigarh Bench, Chandigarh, arising out of its order dated 8.8.1997 in ITA No.102/Chd/94, for the assessment year 1989-90:- "Whether, on the facts and in the circumstances of the case, the Tribunal was right in law in confirming the order of the CIT(A) allowing depreciation as per income-tax Rules to the assessee for computing the quantum of income under section 115-J primarily on the ground that the same was based on the views expressed by the then Chairman of the CBDT in a departmental publication?"
(2.) The assessee declared its income nil for the assessment year 1989-90. It calculated its income after claiming depreciation as per provisions of the Income Tax Act, 1961 (for short, 'the Act'), which was rejected by the Assessing Officer on the ground that depreciation for purposes of Section 115-J of the Act was permissible as per Schedule XIV of the Companies Act, 1956. The CIT(A) allowed the claim of the assessee holding that depreciation provided under the Companies Act was the minimum but there was no bar to higher depreciation being claimed by the assessee and, thus, for purposes of Section 115-J of the Act, depreciation actually debited could be allowed. The Tribunal upheld the said view. We have heard learned counsel for the parties.
(3.) Learned counsel for the assessee has relied upon judgment of the Hon'ble Supreme Court in Apollo Tyres Limited v. Commissioner of Income Tax, (2002) 255 ITR 273, wherein, it was observed that words in accordance with the provisions of Parts II and III of Schedule VI to the Companies Act were used for limited purpose of empowering the Assessing Officer to rely upon the authentic statement of accounts of the company. The Assessing Officer could not re-scrutinise the accounts to see whether the same were in accordance with the provisions of the Companies Act. Income acceptable to the authorities under the Companies Act has to be treated as income for purposes of Section 115-J of the Act. Only power of the Assessing Officer is to see that accounts are certified by the authorities under the Companies Act and, there is no jurisdiction to go behind the net profit shown in the profit and loss account.;