The Sabarkantha District Co.-Op. Milk Producers Union Ltd., Himatnagar V. The Asstt. Commissioner of Income Tax, Sabarkantha Circle, Himatnagar

CO 136/AHD/2019

• Counselvise Citation: [2021] 109 COUNSELVISE.COM (IT) 8072 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 5 month(s) 19 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 12-01-2021
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2014-2015
• Appeal Filed On: 24-07-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Depreciation; Additional depreciation; Unabsorbed depreciation; Set aside
• Section: 143(3); 143(2); 139(1); 32

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH (VIRTUAL COURT) BEFORE: SHRI MAHAVIR PRASAD, JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMB ER THE ACIT, SABARKANTHA CIRCLE, HIMATNAGAR-383001 (APPELLANT) VS SABARKANTA DISTT CO-OP MILK PRODUCERS UNION LTD. SABAR DAIRY, AT & PO BORIYA, HIMATNAGAR, DISTT-SABARKANTHA- 383001 PAN: AAAAS5265L (RESPONDENT) SABARKANTA DISTT CO-OP MILK PRODUCERS UNION LTD. SABAR DAIRY, AT & PO BORIYA, HIMATNAGAR, DISTT-SABARKANTHA-383001 PAN: AAAAS5265L (APPELLANT) VS THE ACIT, SABARKANTHA CIRCLE, HIMATNAGAR-383001 (RESPONDENT) ITA NOS. 2401 & 2402/AHD/2018 ASSESSMENT YEAR 2013-14 & 2014-15 C.O. NO. 136/AHD/2019 (IN ITA NO. 2402/AHD/2018 ) ASSESSMENT YEAR 2014-15 I.T.A NOS. 2401 & 2402/AHD/2018 & C.O. 136/AHD/201 9 A.Y. 2013-14 & 2014-15 PAGE NO ACIT VS. THE SABARKANTHA DISTRICT CO-OP. MILK PRODU CERS UNION LTD. 2 REVENUE BY: SHRI AARSI PRASAD, CIT-D.R. ASSESSEE BY: SHRI YOGESH SHAH, A.R. DATE OF HEARING : 11-12-2020 DATE OF PRONOUNCEMENT : 12-01-2021 /ORDER PER : AMARJIT SINGH, ACCOUNTANT MEMBER:- THESE TWO APPEALS FILED BY REVENUE FOR A.Y. 2013-14 & 2014-15 AND CROSS OBJECTION FILED BY ASSESSEE A.Y. 2014-15 ARIS E FROM ORDER OF THE CIT(A)-2, AHMEDABAD DATED 24-09-2018, IN PROCEEDING S UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE A CT. ITA NO. 2401/AHD/2018 A.Y. 2013-14 2. THE REVENUE HAS RAISED FOLLOWING GROUNDS OF APPE AL:- 1. THE LD. CIT(A) HAS ERRED IN LAW IN DELETING THE DISALLOWANCES U/S 80P(2)(D) OF RS.2,32,84,772/- DISREGARDING THE PROVISIONS OF SEC TION 80-AB OF THE IT ACT. 2. THE LD. C1T(A) HAS ERRED IN LAW AND ON F ACTS IN DELETING THE DISALLOWANCES OF ADDITIONAL DEPRECIATION OF RS.3,21,16,870/-CLAIMED ON ACCOUNT OF PLANT & MACHINERY. 3. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DELETING THE DISALLOWANCES OF ADDITIONAL DEPRECIATION ON MILK CANS & EQUIPMENTS OF RS.40,36, 716/-. 3. THE ASSESSEE HAS FILED RETURN OF INCOME ON 29 TH SEP, 2013 DECLARING TOTAL INCOME OF RS. 1,17,39,180/- FOR THE YEAR UNDE R CONSIDERATION. THE CASE WAS SUBJECT TO SCRUTINY ASSESSMENT AND NOTICE U/S. 143(2) WAS ISSUED ON 2 ND SEP, 2014. ASSESSMENT U/S. 143(3) OF THE ACT WAS F INALIZED ON 4 TH MARCH, 2016 AND TOTAL INCOME WAS ASSESSED AT RS. 7,60,88,2 77/-. THE ASSESSING OFFICER HAS MADE DISALLOWANCE U/S. 80P(2)(D) OF THE ACT AND ALSO DISALLOWED THE ADDITIONAL CLAIM OF DEPRECIATION ON ACCOUNT OF PLANT AND MACHINERY. I.T.A NOS. 2401 & 2402/AHD/2018 & C.O. 136/AHD/201 9 A.Y. 2013-14 & 2014-15 PAGE NO ACIT VS. THE SABARKANTHA DISTRICT CO-OP. MILK PRODU CERS UNION LTD. 3 HOWEVER, THE LD. CIT(A) HAS DELETED THE DISALLOWANC E AND ADDITION MADE BY THE ASSESSING OFFICER. THE RELEVANT FACTS PERTAININ G TO THE ISSUES ARE DISCUSSED WHILE ADJUDICATING THE GROUNDS OF APPEAL AS FOLLOWS. GROUND NO. 1 (DELETING THE DISALLOWANCE U/S. 80P(2) (D) OF RS. 2,32,84,772/-) 4. DURING THE COURSE OF ASSESSMENT, THE ASSESSING O FFICER OBSERVED THAT ASSESSEE HAS MADE INVESTMENT IN SHARES AND SECURITI ES TO THE AMOUNT OF RS. 7,91,89,690/- AND ALSO BORROWED FUNDS TO THE AMOUNT OF RS. 185.81 CRORES AS ON 31 ST MARCH, 2013 AND CLAIMED TOTAL INTEREST EXPENSES OF RS. 48,00,48,638/- IN THE PROFIT AND LOSS ACCOUNT. THE ASSESSING OFFICER FURTHER NOTICED THAT ASSESSEE HAS CLAIMED EXEMPTED INTEREST OF RS. 47,29,522/- AND DIVIDEND INCOME OF RS. 1,85,55,250/ - TOTALING TO RS. 2,32,84,772/- U/S. 80P(2)(D) OF THE ACT. ON QUERY , THE ASSESSEE EXPLAINED THAT IT HAS RECEIVED INTEREST INCOME FROM INVESTMEN T OUT OF THE AMOUNT RECEIVED ON ACCOUNT OF SALE OF MILK AND MILK CANS A ND THE DIVIDEND INCOME HAS BEEN EARNED FROM INVESTMENT MADE OUT OF OWN FUN D. THE ASSESSING OFFICER HAS NOT ACCEPTED THE EXPLANATION OF THE ASS ESSEE STATING THAT ASSESSEE HAS NOT MAINTAINED SEPARATE ACCOUNT FOR EACH ISSUE AND ALSO FAILED TO PROVE DIRECT NEXUS OF THE SOURCES OF FUND AND ITS INVESTM ENT MADE DURING THE YEAR. AFTER REFERRING VARIOUS JUDGMENTS AT PAGE NO. 5 AND 10 OF THE ASSESSMENT ORDER, THE ASSESSING OFFICER STATED THAT ASSESSEE W AS NOT QUALIFIED FOR EXEMPTION U/S. 80P(2)(D) OF THE ACT AND THE CLAIM O F EXEMPTED INTEREST AND DIVIDEND INCOME TOTALING OF RS. 2,32,84,772/- WAS D ISALLOWED AND ADDED TO THE TOTAL INCOME OF THE ASSESSEE. I.T.A NOS. 2401 & 2402/AHD/2018 & C.O. 136/AHD/201 9 A.Y. 2013-14 & 2014-15 PAGE NO ACIT VS. THE SABARKANTHA DISTRICT CO-OP. MILK PRODU CERS UNION LTD. 4 5. AGGRIEVED ASSESSEE HAS FILED APPEAL BEFORE ETH L D. CIT(A). THE LD. CIT(A) HAS ALLOWED THE APPEAL OF THE ASSESSEE HOLDI NG THAT SIMILAR ISSUE FOR ASSESSMENT YEAR 2009-10 HAS BEEN ADJUDICATED IN FAV OUR OF THE ASSESSEE BY THE CO-ORDINATE BENCH OF THE ITAT AND THE HONBLE J URISDICTIONAL HIGH COURT. THE RELEVANT PART OF THE DECISION OF LD. CI T(A) IS REPRODUCED AS UNDER:- 3.3. I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CASE, ASSESSMENT ORDER AND SUBMISSION OF THE APPELLANT. THE AO HAS MADE THE DISALLOWANCE OF CLAI M OF INTEREST OF RS. 47,29,522/- AND DIVIDEND INCOME OF RS.1,85,55,250/-TOTALLING TO RS.2,32,84,7 72/- U/S. 8OP(2)(D) OF THE ACT STATING THAT THE ABOVE INCOME IS IN THE NATURE OF INCOME FROM OTHER SOURCES, AND THEREFORE, NOT ALLOWABLE U/S. 80P(2)(D) OF THE I. T. ACT, 1961. 3.4. THE APPELLANT ON THE OTHER HAND HAS STATED THAT THE ISSUE HAS COME UP IN THE A. Y. 2009-10 AND HAS BEEN DECIDED BY THE HONOURABLE ITAT IN APPE LLANT'S FAVOUR THAT INTEREST AND DIVIDEND EARNED ON INVESTMENT IS ALLOWABLE U/S. 80P{2) (D) O F THE ACT. THE ORDER OF HONOURABLE ITAT HAS BEEN AFFIRMED BY THE HONOURABLE GUJARAT HIGH COURT IN TAX APPEAL NO.473 OF 2014. THE CIT(A) HAS DELETED THE SIMILAR DISALLOWANCE IN ALL PRECEDI NG YEARS. THE HONOURABLE ITAT IN THE IMMEDIATE PRECEDING YEAR IN A. Y. 2012-13 HAS ALSO UPHELD THE DECISION MADE BY CIT(A). 3.5. IN VIEW OF THE ABOVE AND CONSIDERING THE DECIS ION OF HONOURABLE ITAT, AHMEDABAD 'A' BENCH AND HONOURABLE GUJARAT HIGH COURT, THE DISALLOWANCE U/S. 80P[2](D) MADE BY THE AC IS DELETED. THE GROUND OF APPEAL IS ACCORDINGLY ALLOWED. 6. DURING THE COURSE OF APPELLATE PROCEEDINGS BEFOR E US, THE LD. COUNSEL HAS SUBMITTED THAT IDENTICAL ISSUE WAS CONTESTED IN FAVOUR OF THE ASSESSEE BY THE CO-ORDINATE BENCH OF THE ITAT IN THE CASE OF AS SESSEE ITSELF FOR ASSESSMENT YEAR 2009-10 VIDE ITA NO. 2613/AHD/2012 AND ALSO IN ASSESSMENT YEAR 2012-13 VIDE ITA NO. 1905/AHD/2016. THE LD. COUNSEL HAS ALSO SUBMITTED THAT HONBLE JURISDICTIONAL HIGH COU RT HAS ALSO AFFIRMED THE FINDING OF THE ITAT FOR ASSESSMENT YEAR 2009-10 VID E TAX APPEAL 473 OF 2014 AND FOR ASSESSMENT YEAR 2012-13 VIDE TAX APPEA L NO. 1312 OF 2018. THE LD. DEPARTMENTAL REPRESENTATIVE IS FAIR ENOUGH NOT TO CONTRADICT THESE UNDISPUTED FACTS THAT THE CASE OF THE ASSESSEE IS C OVERED BY THE JUDICIAL PRONOUNCEMENT AS REFERRED BY THE LD. COUNSEL. I.T.A NOS. 2401 & 2402/AHD/2018 & C.O. 136/AHD/201 9 A.Y. 2013-14 & 2014-15 PAGE NO ACIT VS. THE SABARKANTHA DISTRICT CO-OP. MILK PRODU CERS UNION LTD. 5 7. HEARD BOTH THE SIDES AND PERUSED THE MATERIAL ON RECORD. WITH THE ASSISTANCE OF LD. REPRESENTATIVES, WE HAVE GONE THR OUGH HE DECISION OF CO- ORDINATE BENCH OF THE ITAT IN ASSESSEES OWN CASE V IDE ITA NO. 2613/AHD/2012 FOR ASSESSMENT YEAR 2009-10 AS FOLLOW S:- 11. AFTER HEARING BOTH THE PARTIES AND PERUSING TH E RECORD, WE FIND THAT AO WHILE DISALLOWING THE 50% OF EXPENDITURE CLAIMED BY THE ASSESSEE WAS OF T HE VIEW THAT INTEREST EXPENSES INCURRED BY THE ASSESSEE ON BORROWED FUNDS MIGHT HAVE BEEN USED FOR THE PURPOSE OF MAKING INVESTMENT, INCOME OF WHICH WAS CLAIMED AS DEDUCTION U/S. 80P(2)(D) OF THE ACT. BEFORE LD. CIT(A) THE ASSESSEE'S SUBMISSION WAS THAT THEY ARE HAVING SUFFICIENT FUND S OF RS. 50.19 CRORE AS ON 31.03.2009 IN THE FORM OF CAPITAL OF RS. 10.19 CRORE AND RESERVE AND SURPLUS OF RS. 40 CRORE AGAINST WHICH THE FIXED DEPOSITS WITH COOPERATIVE BANKS AND SOCIETIES WERE OF RS. 36.28 CRORE ONLY. SINCE INTEREST FREE FUNDS WERE MORE THAN THE INVESTMENT MADE IN SUCH DE POSITS WITH COOPERATIVE BANKS AND SINCE THE FUNDS WERE MIXED FUNDS THE PRESUMPTION WAS THAT THE SAID DEPOSITS WERE MADE OUT OF OWN NON INTEREST BEARING FUNDS. RELIANCE WAS ALSO PLACED ON THE DECISION OF SUPREME COURT IN THE CASE OF MUNGAL SALES CORPORATION 298 ITR 298 AND DECISION O F MUMBAI HIGH COURT IN THE CASE OF RELIANCE UTILITIES AND POWER LTD 313 ITR 340. KEEPI NG THESE FACTS AND THE CASE LAWS IN VIEW, LD. CIT(A) HELD THAT IT WAS NOT REQUIRED TO LOOK INTO T HE SOURCE OF THE FUNDS. THE PLAIN LANGUAGE OF SECTION DID NOT SPEAK OF ANY SUCH ADJUSTMENT. THE O NLY REQUIREMENT WAS THAT INCOME SHOULD BE RECEIVED FROM INVESTMENT IN CO-OPERATIVE SOCIETIES AND CO-OPERATIVE BANKS. SINCE IN THE PRESENT CASE, IT WAS UNDISPUTED FACT THAT INCOME CLAIMED U/ S. 80P(2)(D) WAS RECEIVED FROM THE INVESTMENT MADE IN CO-OPERATIVE SOCIETIES AND CO-OPERATIVE BAN KS, THEREFORE ASSESSEE WAS ELIGIBLE FOR DEDUCTION U/S. 80P(2)(D) OF THE ACT. WE FURTHER FIN D THAT EVEN OTHERWISE SINCE ASSESSEE WAS HAVING MIXED FUNDS AND THE INTEREST FREE FUNDS WERE MORE T HAN INVESTMENT IN CO-OPERATIVE BANKS AND CO- OPERATIVE SOCIETIES NO DISALLOWANCE WAS CALLED FOR FROM ELIGIBLE DEDUCTION U/S 80P(2(D) OF THE ACT. THEREFORE, WE FEEL NO NEED TO INTERFERE WITH THE OR DER PASSED BY LD. CIT(A) AND THE SAME IS HEREBY UPHELD. DURING THE YEAR AS SUBMITTED BY THE ASSESSEE IN ITS SUBMISSION BEFORE THE LD. CIT(A) DISCUSSED AT PAGE NO. 15 OF THE CIT(A)S ORD ER THAT ASSESSEE WAS HAVING ITS OWN FUND AMOUNTING TO RS. 77.52 CRORES A S AGAINST THE INVESTMENT OF RS. 42.54 CRORES, THEREFORE, RESPECTFULLY FOLLOW ING THE DECISION OF THE CO- ORDINATE BENCH AS ELABORATED ABOVE WHICH WAS AFFIRM ED BY THE HONBLE JURISDICTIONAL HIGH COURT OF GUJARAT VIDE TAX APPEA L NO. 473 OF 2014, WE DO NOT FIND ANY INFIRMITY IN THE DECISION OF LD. CIT(A ). ACCORDINGLY, THIS GROUND OF APPEAL OF THE REVENUE IS DISMISSED. I.T.A NOS. 2401 & 2402/AHD/2018 & C.O. 136/AHD/201 9 A.Y. 2013-14 & 2014-15 PAGE NO ACIT VS. THE SABARKANTHA DISTRICT CO-OP. MILK PRODU CERS UNION LTD. 6 GROUND NO. 2(DELETING THE DISALLOWANCE ON ADDITIONA L DEPRECATION OF RS. 3,21,16,870/- CLAIMED AS PLANT AND MACHINERY OT HER THAN MILK CAN EQUIPMENTS) 8. DURING THE COURSE OF ASSESSMENT, THE ASSESSING O FFICER NOTICED THAT ASSESSEE HAS CLAIMED ADDITIONAL DEPRECIATION AMOUNT ING TO RS. 3,21,16,870/- EQUAL TO 10% OF THE COST OF THE MACHINERY PURCHASED AND PUT TO USE FOR THE PERIOD LESS THAN 180 DAYS IN THE F.Y. 2011-12. THE ASSESSING OFFICER STATED THAT AS PER PROVISION OF SECTION 32 ADDITIONAL DEPR ECATION IS ALLOWABLE ON THE PLANT AND MACHINERY ONLY FOR THE YEAR IN WHICH THE CAPACITY EXPANSION HAS TAKEN PLACE AND NOT IN THE SUBSEQUENT YEAR. THE A SSESSING OFFICER WAS OF THE VIEW THAT ADDITIONAL DEPRECATION IS ALLOWABLE O NLY FOR THE YEAR IN WHICH THE CAPACITY EXPLANATION HAVE TAKEN PLACE AND ACCOR DINGLY, DISALLOWED THE BALANCE 10% CLAIM FOR THE CURRENT YEAR. 9. AGGRIEVED ASSESSEE HAS FILED APPEAL BEFORE THE L D. CIT(A). THE LD. CIT(A) HAS ALLOWED THE APPEAL OF THE ASSESSEE HOLDI NG THAT THE ASSESSEES CASE IS COVERED BY THE DECISION GIVEN IN ASSESSEES OWN CASE BY THE CO- ORDINATE BENCH OF THE ITAT AHMEDABAD VIDE ITA NO. 1 905/AHD/2016 DATED 6 TH JUNE, 2018. THE RELEVANT PART OF THE DECISION OF LD. CIT(A) IS REPRODUCED AS UNDER:- 4. 3. I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CAS E, ASSESSMENT ORDER AND SUBMISSION OF THE APPELLANT. THE AO HAS MADE THE DISALLOWANCE OF 10% OF ADDITIONAL DEPRECIATION ON PLANT AND MACHINERY PURCHASED AND PUT TO USE FOR LESS THAN 18 0 DAYS IN THE F. Y. 2011-12. THE AO HAS HELD THAT ADDITIONAL DEPRECIATION IS ALLOWABLE ONLY FOR THE YEAR IN WHICH THE CAPACITY EXPENSES HAVE TAKEN PLACE AND ACCORDINGLY DISALLOWED THE BALANCE 10% CLAIMED IN THE CURRENT YEAR. 4.4. THE APPELLANT ON THE OTHER HAND HAS STATED THA T THE APPELLANT'S CASE IS COVERED BY THE DECISION GIVEN IN APPELLANT'S OWN CASE FOR A. Y. BY CIT(A) - 4, AHMEDABAD AND THE SAME HAS BEEN UPHELD BY HONOURABLE ITAT, AHMEDABAD VIDE ORDER IN ITA NO. L905/AHD/2016 DATED 06/06/2018. THE RELEVANT FINDINGS OF THE HONOURABLE ITAT IS AS UNDE R:- '14. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE HAS MADE ADDITION TO ITS PLANT & MACHINERY WHICH IS ELIGIBLE FOR GRANT OF ADDITIONAL DEPRECIATION UNDER SECTION 32(L)(II) OF THE ACT. THIS PLANT & MACHINERY WAS USED FOR LESS T HAN 180 DAYS IN THE PRECEDING YEAR. I.T.A NOS. 2401 & 2402/AHD/2018 & C.O. 136/AHD/201 9 A.Y. 2013-14 & 2014-15 PAGE NO ACIT VS. THE SABARKANTHA DISTRICT CO-OP. MILK PRODU CERS UNION LTD. 7 THE ASSESSEE CLAIMED THAT THE ADDITIONAL DEPRECIATI ON FOR REMAINING PERIOD OF 180 DAYS OUGHT TO BE ALLOWED IN SUBSEQUENT YEAR I.E. IN THE PRESENT ASSESSMENT YEAR. THE ID.AO WAS OF THE VIEW THAT SUCH ADDITIONAL DEPRECIATION I S ADMISSIBLE ONE TIME, AND THEREFORE, THE ASSESSEE SHOULD HAVE INSTALLED THE PLANT & MACH INERY AT THE BEGINNING OF THE YEAR SO THAT IT COULD CLAIM ADDITIONAL DEPRECIATION IN THE YEAR OF INSTALLATION ITSELF. ACCORDINGLY, 50% UNCLAIMED DEPRECIATION HAS BEEN DISALLOWED TO T HE ASSESSEE. ON APPEAL, THE LD.CIT(A) AFTER PUTTING RELIANCE ON THE ORDER OF TH E ITAT ALLOWED THE CLAIM OF THE ASSESSEE. 15. WITH THE ASSISTANCE OF THE ID. REPRESENTATIVES, WE HAVE GONE THROUGH THE RECORD CAREFULLY. WE FIND THAT THIS ISSUE HAS BEEN EXAMINE D BY THE ITAT, DELHI BENCH IN THE CASE OF DCIT VS. COSMOS FILMS LTD., 24 TAXMATM.COM 189 W HEREIN ONE OF US (JUDICIAL MEMBER) IS PARTY TO THE ORDER. ITAT HAS EXAMINED TH IS ASPECT IN DETAIL AND HELD THAT ANY CLAIM OF ADDITIONAL DEPRECIATION ON ACCOUNT OF NON- USER OF THE MACHINERY OVER A PERIOD OF 180 DAYS OR MORE SHOULD BE CLAIMED IN THE NEXT A SSESSMENT YEARS. THE DISCUSSION MADE BY THE ITAT HAS BEEN REPRODUCED BY THE LD.CIT(A), AND IT IS WORTH TO TAKE NOTE AS UNDER: '17. WE HAVE HEARD BOTH THE SIDES ON THIS ISSUE. SE CTION 32(1) (IIA) INSERTED BY FINANCE (NO. 2) WITH EFFECT FROM 1.4.2003. IN SPEECH OF FIN ANCE MINISTER THIS CLAUSE WAS INSERTED TO PROVIDE INCENTIVE FOR FRESH INVESTMENT IN INDUST RIAL SECTOR. THIS CLAUSE WAS INTENDED TO GIVE IMPETUS TO NEW INVESTMENT IN SETTING UP A NEW INDUSTRIAL UNIT OR FOR EXPANDING THE INSTALLED CAPACITY OF EXISTING UNITS BY AT LEAST 25 % THEREAFTER THESE PROVISIONS WERE AMENDED BY THE FINANCE (NO.2) ACT OF 2004 W.E.F. 1. 4.2005 AND PROVIDED THAT IN THE CASE OF ANY MACHINERY OR PLANT WHICH HAS BEEN ACQUIRED A FTER THE 31 ST DAY OF MARCH, 2005 BY AN ASSESSEE ENGAGED IN THE BUSINESS OF MANUFACTURE OF PRODUCTION OF ANY ARTICLE OR THING A FURTHER SUM EQUAL 15 % OF ACTUAL COST OF SUCH MAC HINERY OR PLANT SHALL BE ALLOWED AS DEDUCTION UNDER CLAUSE (II) OF SECTION 33(1). THIS ADDITIONAL ALLOWANCE U/S 32(1) (IIA) IS MADE AVAILABLE AS CERTAIN PERCENTAGE OF ACTUAL COST OF NEW MACHINERY AND PLANT ACQUIRED AND INSTALLED. THIS PROVISION HAS BEEN DIRECTED TO THE SETTING UP NEW INDUSTRIAL UNDERTAKING MAKING OR FOR EXPANSION OF THE INDUSTRI AL UNDERTAKING BY WAY OF MAKING MORE INVESTMENT IN CAPITAL GOODS. THUS, THESE ARE I NCENTIVES AIMED TO BOOST NEW INVESTMENTS IN SETTING UP AND EXPANDING THE UNITS. THE PROVISO TO SECTION 32(1) (IIA) RESTRICTS THE BENEFITS IN RESPECT OF FOLLOWING- 'PR OVIDED THAT NO DEDUCTION SHALL BE ALLOWED IN RESPECT OF_ (A) ANY MACHINERY OR PLANT WHICH, BE FORE ITS INSTALLATION BY THE ASSESSES WAS USED EITHER WITHIN OR OUTSIDE INDIA BY ANY OTHE R PERSON; OR (B) ANY MACHINERY OR PLANT INSTALLED IN ANY OFFICE PREMISES OR ANY RESID ENTIAL ACCOMMODATION, INCLUDING ACCOMMODATION IN THE NATURE OF A GUEST-HOUSE OR (C) ANY OFFICE APPLIANCES OR ROAD TRANSPORT VEHICLE, OR (D) ANY MACHINERY OR PLANT, T HE WHOLE OF THE ACTUAL COST OF WHICH IS ALLOWED AS A DEDUCTION (WHETHER BY WAY OF DEPRECIAT ION OR OTHERWISE) IN COMPUTING THE INCOME CHARGEABLE UNDER THE HEAD 'PROFITS AND GAINS OF BUSINESS OR PROFESSION OF ANY PREVIOUS YEAR.' THUS, THIS INCENTIVE IN THE FORM OF ADDITIONAL SUM OF DEPRECIATION IS NOT AVAILABLE TO ANY PLANT OR MACHINERY WHICH BEEN USED EITHER WITHIN INDIA OR OUTSIDE INDIA BY ANY OTHER PERSON OR SUCH MACHINERY AND PLANT ARE INSTALLED IN ANY OFFICE PREMISES OR ANY RESIDENTIAL ACCOMMODATION, INCLUDING ACCOMMODAT ION IN THE NATURE OF A GUEST HOUSE OR ANY OFFICE /APPLIANCES OR ROAD TRANSPORT VEHICLE S, OR ANY MACHINERY OR PLANT THE WHOLE OF ACTUAL COST OF WHICH IS ALLOWABLE AS DEDUCTION ( WHERE BY WAU OF DEPRECIATION OR OTHERWISE) IN COMPUTING UNDER THE HEAD 'PROFIT AND GAINS OF BUSINESS OR PROFESSION' OF ANY ONE PREVISION YEAR. THUS, THE INTENSION WAS NOT TO DENY THE BENEFIT TO THE ASSETS, WHO HAVE ACQUIRED OR INSTATED NEW MACHINERY OR PLANT. T HE SECOND PROVISO TO SECTION 32(1) (II) RESTRICTS THE ALLOWANCES ONLY TO 50% WHERE THE ASSETS HAVE BEEN ACQUIRED AND PART TO USE FOR A PERIOD LESS THAN 160 DAYS IN THE YEAR OF ACQUISITION. THIS RESTRICTION IS ONLY ON THE BASIS OF PERIOD OF USE. THERE IS NO RESTRICTION , THAT BALANCE OF ONE TIME INCENTIVE IN THE FORM OF ADDITIONAL SUM OF DEPRECIATION SHALL NOT BE AVAILABLE IN THE SUBSEQUENT YEAR. SECTION 32(2) PROVIDES FOR A CARRY FORWARD SET UP O F UNABSORBED DEPRECIATION. THIS ADDITIONAL BENEFIT IN THE FORM OF ADDITIONAL ALLOWA NCE U/S 32(L)(IIA) IS ONE TIME BENEFIT TO I.T.A NOS. 2401 & 2402/AHD/2018 & C.O. 136/AHD/201 9 A.Y. 2013-14 & 2014-15 PAGE NO ACIT VS. THE SABARKANTHA DISTRICT CO-OP. MILK PRODU CERS UNION LTD. 8 ENCOURAGE THE INDUSTRIALIZATION AND IN VIEW OF THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF BAJAJ TEMPO VS. CIT, CITED SUPRA, THE P ROVISIONS RELATED TO IT HAVE TO BE CONSTRUCTED REASONABLY, LIBERALLY AND PURPOSIVE TO MAKE THE PROVISION MEANINGFUL WHILE GRANTING THE ADDITIONAL ALLOWANCE. THIS ADDITIONAL BENEFIT IS TO GIVE IMPETUS TO INDUSTRIALIZATION AND THE BASIC INTENTION AND PURPO SE OF THESE PROVISIONS CAN BE REASONABLY AND LIBERALLY HELD THAT THE ASSESSEE DES ERVES TO GET THE BENEFIT IN FULL WHEN THERE IS NO RESTRICTION IN THE STATUTE LO DENY THE BENEFIT OF BALANCE OF 50% WHEN THE NEW PLANT AND MACHINERY WERE ACQUIRED AND USE FOR LESS THAN 180 DAYS. ONE TIME BENEFIT EXTENDED TO ASSESSES HAS BEEN EARNED IN THE YEAR OF ACQUISITION OF NEW PLANT AND MACHINERY. IT HAS BEEN CALCULATED @ 15% BUT RESTRIC TED TO 50% ONLY ON ACCOUNT OF USAGE OF THESE PLANT & MACHINERY IN THE YEAR OF ACQUISITI ON. IN SECTION 32(1 (IIA) THE EXPRESSION USED IS 'SHALL BE ALLOWED'. THUS THE ASSESSEE HAD E ARNED THE BENEFIT AS SOON AS HE HAD PURCHASED THE NEW PLANT AND MACHINERY IN FULL BUT I T IS RESTRICTED TO 50% IN THAT PARTICULAR YEAR ON ACCOUNT OF PERIOD OF USAGES. SUC H RESTRICTIONS CANNOT DIVEST THE STATUTORY RIGHT, LAW DOCS NOT PROHIBIT THAT BALANCE 50% WILL NOT BE ALLOWED IN SUCCEEDING YEAR. THE EXTRA DEPRECIATION ALLOWABLE U/S 32{1) (I IA) IN AN EXTRA INCENTIVE WHICH HAS BEEN EARNED AND CALCULATED IN THE YEAR OF ACQUISITI ON BUT RESTRICTED FOR THAT YEAR TO 50% ON ACCOUNT OF USAGE. THE SO EARNED INCENTIVE MUST B E MADE AVAILABLE IN THE SUBSEQUENT YEAR. THE OVERALL DEDUCTION OF DEPRECIATION U/S 32 SHALL DEFINITELY NOT EXCEED THE TOTAL COST OF PLANT MACHINERY. IN VIEW OF THIS MATTER, WE SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND DIRECT TO EXTEND THE BENEFIT,' 16. RESPECTFULLY FOLLOWING THE ORDER OF THE 1TAT, W E ARE OF THE VIEW THAT THE LD.CIT(A) HAS RIGHTLY DELETED THE DISALLOWANCE AND HAS RIGHTL Y DIRECTED THE AO FOR GRANT OF REMAINING ADDITIONAL DEPRECIATION IN THIS ASSESSMEN T YEAR. WE DO NOT FIND ANY ERROR IN FINDING OF LD.CIT( A) ON THIS GROUND OF APPEAL. ACC ORDINGLY, IT IS REJECTED.' 4.5. IN VIEW OF THE ABOVE AND RESPECTFULLY FOLLOWIN G THE DECISION OF HONOURABLE ITAT, THE DISALLOWANCE OF ADDITIONAL DEPRECIATION MADE BY THE AO IS DELETED. THE GROUND OF APPEAL IS ACCORDINGLY ALLOWED. 10. DURING THE COURSE OF APPELLATE PROCEEDINGS BEFO RE US, THE LD. COUNSEL HAS CONTENDED THAT THE ISSUE IN APPEAL IS COVERED B Y THE DECISION OF THE CO- ORDINATE BENCH OF THE ITAT IN THE CASE OF THE ASSES SEE ITSELF FOR ASSESSMENT YEAR 2012-13 VIDE ITA NO. 1905/AHD/2016. THE LD. DE PARTMENTAL REPRESENTATIVE IS FAIR ENOUGH NOT TO CONTROVERT THE SE UNDISPUTED FACTS THAT THE ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE. 11. HEARD BOTH THE SIDES AND PERUSED THE MATERIAL O N RECORD. WITH THE ASSISTANCE OF LD. REPRESENTATIVES, WE HAVE GONE THO UGH THE DECISION OF THE CO-ORDINATE BENCH OF THE ITAT IN THE CASE OF THE AS SESSEE ITSELF FOR ASSESSMENT YEAR 2011-12 AS ELABORATED ABOVE IN THE FINDING OF THE LD. CIT(A) AND CONSIDERED THAT THE ISSUE IN THE INSTANT APPEAL IS COVERED BY THE AFORESAID I.T.A NOS. 2401 & 2402/AHD/2018 & C.O. 136/AHD/201 9 A.Y. 2013-14 & 2014-15 PAGE NO ACIT VS. THE SABARKANTHA DISTRICT CO-OP. MILK PRODU CERS UNION LTD. 9 DECISION OF THE ITAT. RESPECTFULLY FOLLOWING THE D ECISION OF ITAT, WE DO NOT FIND ANY ERROR IN THE DECISION OF LD. CIT(A). THEREFORE, THIS GROUND OF APPEAL OF THE REVUE IS ALSO DISMISSED. GROUND NO. 3(DELETING DISALLOWANCE OF ADDITIONAL DE PRECIATION ON MILK EQUIPMENT OF RS. 40,36,716/-) 12. DURING THE COURSE OF ASSESSMENT THE ASSESS ING OFFICER NOTICED THAT ASSESSEE HAS CLAIMED ADDITIONAL DEPRECIATION ON MIL K CANS OF RS. 37,28,661/- , ON EQUIPMENT OF RS. 2,45,597/- AND ON EQUIPMENT (CATTLE FEED PLANT) OF RS. 62,548/-. THE ASSESSING OFFICER WAS OF THE VIEW T HAT AFORESAID EQUIPMENTS WERE NOT OF THE CATEGORY OF PLANT AND MACHINERY. THE ASSESSING OFFICER STATED THAT MIL CANS WERE USED FOR COLLECTING AND S TORAGE FACILITIES AND SIMILARLY THE EQUIPMENT WERE PART OF LABORATORY TES TING, CONTAINERS WERE FOR ARTIFICIAL INSEMINATION BY WHICH NO PRODUCTION CA PACITY WAS ENHANCED CANNOT BE CATEGORIZED AS PLANT AND MACHINERY FOR TH E PURPOSE OF CLAIMING ADDITIONAL DEPRECIATION. THEREFORE, ADDITIONAL DEP RECATION CLAIMED ON MILK CANS AND EQUIPMENTS OF RS. 40,36,716/- (37,28,661+2 ,45,597+62,458) WAS DISALLOWED AND ADDED TO THE TOTAL INCOME OF THE ASS ESSEE. 13. AGGRIEVED ASSESSEE HAS FILED APPEAL BEFORE T HE LD. CIT(A). THE LD. CIT(A) HAS ALLOWED THE APPEAL OF THE ASSESSEE STATI NG THAT SIMILAR ISSUE WAS CONTESTED IN FAVOUR OF THE ASSESSEE BY THE CO-ORDIN ATE BENCH OF THE ITAT VIDE ITA NO. 1905/AHD/2016 DATED 9 TH JUNE, 2018. THE RELEVANT PART OF THE DECISION OF LD. CIT(A) IS REPRODUCED AS UNDER:- 5.3. 1 HAVE CAREFULLY CONSIDERED THE FACTS OF THE CASE, ASSESSMENT ORDER AND SUBMISSION OF THE APPELLANT. THE AO HAS MADE THE DISALLOWANCE OF ADDI TIONAL DEPRECIATION OF RS.40,36,716/- ON MILK CANS, RS,2,45,597/-CLAIMED ON EQUIPMENTS AND RS.62, 458/- CLAIMED ON EQUIPMENTS (CATTLE FEED PLANT) STATING THAT THE EQUIPMENTS WHICH ARE PART O F LABORATORY TESTING, CONTAINERS FOR ARTIFICIAL I.T.A NOS. 2401 & 2402/AHD/2018 & C.O. 136/AHD/201 9 A.Y. 2013-14 & 2014-15 PAGE NO ACIT VS. THE SABARKANTHA DISTRICT CO-OP. MILK PRODU CERS UNION LTD. 10 INSEMINATION BY WHICH NO PRODUCTION CAPACITY IS ENH ANCED CANNOT BE CATEGORIZED AS PLANT S. MACHINERY FOR THE PURPOSE OF CLAIMING ADDITIONAL DE PRECIATION. 5.4. THE APPELLANT ON THE OTHER HAND HAS STATED THA T THE APPELLANT'S CASE IS COVERED BY THE DECISION GIVEN IN APPELLANT'S OWN CASE FOR A. Y. 2012-13 BY CIT(A) - 4, AHMEDABAD AND THE SAME HAS BEEN UPHELD BY HONOURABLE ITAT, AHMEDABAD VIDE ORDER IN ITA NO.L905/AHD/2016 DATED 06/06/2018. THE RELEVANT FINDINGS OF THE HONOURABLE ITAT IS AS UNDER:- '9. GROUND NO.2; IN THIS GROUND, GRIEVANCE OF THE R EVENUE IS THAT THE LD.CIT(A)) HAS ERRED IN DELETING DISALLOWANCE OF ADDITIONAL DEPREC IATION OF KS.33,80,446/-. IT IS PERTINENT TO MENTION THAT THE ASSESSEE HAS CLAIMED ADDITIONAL DEPRECIATION ON MILK CANES. THE ID.AO HAS DISALLOWED THE CLAIM OF THE ASSESSEE ON T HE GROUND THAT SUCH CANES WERE USED FOR TRANSPORTING THE MILK FROM VILLAGE TO PLANT, AN D THEREFORE, DOES NOT FORM PART OF PLANT & MACHINERY. THE LD.CIT(A) DELETED THE DISALLOWANCE BY OBSERVING THAT THE AO HIMSELF TREATED MILK CANS AS PLANT AND ALLOWED DEPRECIATION AT THE RATE OF 15%, IN OTHER WORDS, HE HAS ALLOWED THE DEPRECIATION AT NORMAL RATES AND REFUSED TO ALLOW ADDITIONAL DEPRECIATION. ACCORDING TO THE ID.CIT(A) EXPRESSION 'PLANT' HAS BEEN DEFINED IN SECTION 43(3) WHICH READS ASUNDER: SECTION 43(3) : 'PLANT' INCLUDES SHIPS, VEHICLES, BOOKS, SCIENTIFIC APPARATUS AND SURGICAL EQUIPMENT USED FO R THE PURPOSES OF THE BUSINESS OR PROFESSION (BUT DOES NOT INCLUDE TEA BUSHES OR LIVE STOCK OR BUILDINGS OR FURNITURE AND FITTINGS) 10. AFTER CONSIDERING THE ABOVE DEFINITION, THE LD. CIT(A) HAS DELETED THE DISALLOWANCE. 11. WITH THE ASSISTANCE OF THE LD. REPRESENTATIVES , WE HAVE GONE THROUGH THE RECORD CAREFULLY. A PERUSAL OF THE ORDER OF THE LD.CIT(A) WOULD INDICATE THAT THERE IS NO DISTINCTION BETWEEN THE EXPRESSION 'PLANT' FOR ALLO WING NORMAL DEPRECIATION VIS-A-VIS ADDITIONAL DEPRECIATION ON THAT ITEM. THE LD AO HAS CREATED AN ARTIFICIAL DISTINCTION ON THAT GROUND. AFTER GOING THROUGH THE ORDER OF THE L D.CIT(A) WE ARE SATISFIED THAT THE LD.CIT(A) HAS EXAMINED THE ISSUE WITH ALL POSSIBLE ANGLE, AND THEREAFTER HELD THAT DEPRECIATION IS ADMISSIBLE TO THE ASSESSEE. THEREFO RE, WE DO NOT FIND ANY MERIT IN THIS GROUND OF APPEAL. IT IS REJECTED,' 5.5. IN VIEW OF THE ABOVE AND RESPECTFULLY FOLLOWIN G THE DECISION OF HONOURABLE 1TAT, THE DISALLOWANCE OF ADDITIONAL DEPRECIATION MADE BY THE AO IS DELETED. THE GROUND OF APPEAL IS ACCORDINGLY ALLOWED. 14. DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE US, LD. COUNSEL HAS CONTENDED THAT IDENTICAL ISSUE ON SIMILAR FACTS WAS ADJUDICATED IN FAVOUR OF THE ASSESSEE BY THE CO-ORDINATE BENCH OF THE ITAT F OR ASSESSMENT YEAR 2012-13 VIDE ITA NO. 1905/AHD/2016 DATED 6 TH JUNE, 2018. ON THE OTHER HAND, LD. COUNSEL IS FAIR ENOUGH NOT TO CONTROVERT THESE UNDISPUTED FACTS THAT THE ISSUE HAS BEEN DECIDED IN FAVOUR OF THE ASSESSE E BY THE CO-ORDINATE BENCH OF THE ITAT AS MENTIONED ABOVE. RESPECTFUL LY FOLLOWING THE DECISION OF THE CO-ORDINATE BENCH AS ELABORATED IN THE FINDING OF LD. CIT(A), WE DO NOT FIND ANY INFIRMITY AND THE SAME IS DISMIS SED. I.T.A NOS. 2401 & 2402/AHD/2018 & C.O. 136/AHD/201 9 A.Y. 2013-14 & 2014-15 PAGE NO ACIT VS. THE SABARKANTHA DISTRICT CO-OP. MILK PRODU CERS UNION LTD. 11 15. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. ITA NO. 2402/AHD/2018 A.Y. 2014-15 16. AS THE FACTS AND ISSUE INVOLVED IN GROUNDS O F APPEAL VIDE ITA NO. 2401/AHD/2018 ASSESSMENT YEAR 2012-13 ARE SIMILAR A S IN ITA NO. 2402/AHD/2018 ASSESSMENT YEAR 2013-14 THEREFORE AFTER APPLYING THE DECISION ADJUDICATED VIDE ITA NO. 2401 /AHD/2015 AS SUPRA IN THIS ORDER, THIS APPEAL OF THE REVENUE STANDS DISMISSED. CROSS OBJECTION NO. 136/AHD/2019 A.Y. 2013-14 17. THE ASSESSE HAS FILED CROSS OBJECTION AGAINST THE DECISION OF LD. CIT(A) IN CONFIRMING THE INTEREST CHARGED U/S. 234A OF THE ACT OF RS. 4,71,300/-. DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE U S, THE LD. COUNSEL HAS BROUGHT TO OUR NOTICE THAT RETURN WAS FILED WITHIN DUE DATE, THEREFORE, NO INTEREST IS REQUIRED TO BE CHARGED. THE LD. COUNSE L HAS REFERRED PAGER NO. 26 TO 28 OF THE PAPER PERTAINING TO COPY OF ACKNOWLEDG EMENT OF ORIGINAL RETURN OF INCOME AND ORIGINAL STATEMENT OF TOTAL INCOME FO R ASSESSMENT YEAR 2014- 15 PLACED IN THE PAPER BOOK. THE LD. COUNSEL HAS S UBMITTED THAT THE ASSESSEE WAS REQUIRED TO FURNISH FORM NO. 3CEB, THEREFORE, D UE DATE OF FILING OF RETURN OF INCOME U/S. 139(1) OF THE ACT WAS 30 TH NOV, 2014. 18. HEARD BOTH THE SIDES AND PERUSED THE MATERI AL ON RECORD. WE CONSIDER THAT THIS ISSUE IS REQUIRED TO BE VERIFIED BY THE A SSESSING OFFICER AFTER EXAMINATION OF THE MATERIAL PLACED IN THE PAPER BOO K. THEREFORE, WE RESTORE THIS ISSUE TO THE FILE OF ASSESSING OFFICER FOR DEC IDING AFRESH AS DIRECTED I.T.A NOS. 2401 & 2402/AHD/2018 & C.O. 136/AHD/201 9 A.Y. 2013-14 & 2014-15 PAGE NO ACIT VS. THE SABARKANTHA DISTRICT CO-OP. MILK PRODU CERS UNION LTD. 12 ABOVE. ACCORDINGLY, THIS CROSS OBJECTION FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES 19. IN THE COMBINED RESULT, BOTH THE APPEALS FIL ED BY THE REVENUE ARE DISMISSED AND CROSS OBJECTION FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 12 -01-2021 SD/- SD/- (MAHAVIR PRASAD) (AMARJIT SINGH) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD : DATED 12/01/2021 / COPY OF ORDER FORWARDED TO:- 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,