IN HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.178 OF 2015 COMMISSONER OF INCOME TAX 7 )...APPELLANT V/s. M/S.HINDUSTAN CIBA GEIGY LTD. )...RESPONDENT Ms.S.V.Bharucha, Advocate for Appellant. Mr.J.D.Mistri, Senior Counsel, a/w. Mr.B.D.Damodar i/b. Kanga and Co., Advocate for Respondent. CORAM : S.V.GANGAPURWALA & A. M. BADAR, JJ. DATE : 31st JULY 2017 P.C. : 1 This appeal pertains to Asssessment Year 1993 1994. 2 learned counsel for appellant states that appellant has assailed order of Tribunal passed in Miscellaneous Application No.77 of 2013 dated 4 th April 2014. According learned counsel, present appeal is filed on following question : avk 1/4 ::: Uploaded on - 31/07/2017 ::: Downloaded on - 01/08/2017 09:31:46 ::: 22-ITXA-178-2015.doc (a) Whether on facts and circumstances of case and in law Hon'ble ITAT was justified in directing AO to examine and verify actuary valuation certificate and agreement with company and employees and if he finds that liability on account of VRS scheme has been calculated on scientific basis may allow claim of Rs.30,39,70,700/ without appreciating fact that assessee was given adequate opportunity during fresh assessment proceedings while passing order on 28.08.2013 ? (b) Whether on facts and circumstances of case and in law Hon'ble ITAT was justified in setting aside order of AO on issue of disallowance of depreciation on Kandla Plant even though assessee has not produced any material before ITAT to substantiate its claim ? avk 2/4 ::: Uploaded on - 31/07/2017 ::: Downloaded on - 01/08/2017 09:31:46 ::: 22-ITXA-178-2015.doc 3 According to learned counsel, there was no need to remit matter to Assessing Officer for fresh decision. 4 Mr.Mistri, learned senior advocate for respondent submits that as far as ground (a) raised is concerned, same is already subject matter of consideration in appeal filed by assessee as well as Revenue bearing Income Tax Appeal Nos.852 of 2013 and 292 of 2013 admitted on 3rd February 2015. learned counsel submits that as far as ground (b) is concerned, same was never raised by any of parties in appeal filed by Revenue as well as assessee against order of Tribunal in appeal. In rectification application, while disposing of rectification application, Tribunal had clarified that Assessing Officer is directed to verify whether plant was actually used in earlier years and if satisfied, depreciation may be allowed. Save and except above, no further order has been passed in miscellaneous application. As such, ground (b) raised by appellant, infact, was already subject matter of decision of Tribunal while avk 3/4 ::: Uploaded on - 31/07/2017 ::: Downloaded on - 01/08/2017 09:31:46 ::: 22-ITXA-178-2015.doc deciding Income Tax Appeal bearing no.334 of 1997 decided on 29th June 2012. 5 We have considered grounds raised in appeal filed by Revenue as well as assessee against judgment of Tribunal in Income Tax Appeal No.334 of 1997. ground with regard to setting aside of order of Assessing Officer on issue of allowance of depreciation was not raised in appeal. same does not appear to have been raised or pressed before court. appeal is admitted basically on question as framed as Question (a) in present appeal. In miscellaneous application, no substantial change has been made in order of Tribunal except clarifying that Assessing Officer is directed to verify as to whether plant was actually used in earlier years and if satisfied, depreciation may be allowed. 6 In light of above, no substantial question of law arises. appeal is dismissed. No costs. (A. M. BADAR, J.) (S.V.GANGAPURWALA), J.) avk 4/4 ::: Uploaded on - 31/07/2017 ::: Downloaded on - 01/08/2017 09:31:46 ::: Commissioner of Income-tax-7 v. Hindustan Ciba-Geigy Ltd