ADARSH KUMAR GOEL, J. - (1.) THE Revenue has preferred this appeal under s. 260A of the IT Act, 1961 (in short, 'the Act'), against the order of the 1996 -97, proposing to raise substantial questions of law : "(i) Whether on the facts and law, the Hon'ble Tribunal was justified in ignoring the respondent as only a manufacturer as it did not have the object of earning commission and service charges as per the memorandum and articles of the respondent company ? (ii) Whether on the facts and law, the Hon'ble Tribunal was justified in ignoring the proviso to s. 43A of IT Act in respect of liability on account of foreign exchange rate fluctuations on the basis of the time of actual payment -
(2.) THE assessee, in its business income, included income from commission and service charges. The AO however, assessed the said part of the income as income from other sources on the ground that business of the assessee was not to earn commission or to provide service. The claim of the assessee for depreciation was allowed to the extent of increase in price due to fluctuation in foreign exchange rates resulting in increase in the price of the machinery. The AO held that since actual payment was not made for the increased price, the assessee was not entitled to the said benefit.
(3.) THE CIT(A) allowed that claim of the assessee on both the counts, which order has been affirmed by the Tribunal. It was held that income from commission and service charges was business income and the same could not be treated to be income from other sources. The CIT(A) followed the decision in the case of the assessee for the previous year. As regards claim for higher depreciation on account of increase of prices due to fluctuation in foreign exchange rate, the Tribunal held as under : "6.....In our considered view, the assessee is entitled to adjust the cost of acquisition in accordance with the provisions of s. 43A and all the consequences as provided under the said section will follow notwithstanding there not being any direction by the appellate authority in this regard. Thus, we see no infirmity in the of the CIT(A) in having directed the AO to give effect to the provisions of s. 43A...";