M/s. Paceman Sales Promotion Pvt. Ltd., Kolkata V. DCIT, Circle - 9, Kolkata, Kolkata

CO 59/KOL/2013

• Counselvise Citation: [2017] 123 COUNSELVISE.COM (IT) 3377 (ITAT-KOLKATA)
• Duration Of Justice: 4 year(s) 6 month(s) 10 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 01-12-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2003-2004
• Appeal Filed On: 21-05-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SOUMYAJIT DASGUPTA
• Assessee Lawyers: R CHOWDHURY
• Keywords: Capital asset; Depreciation; Additional evidence; Reasonable cause
• Section: 143(3); 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : KOLKATA [BEFORE HONBLE SHRI N.V.VASUDEVAN, JM & SHRI M.B ALAGANESH, AM ] I.T.A NOS. 1058 & 105 9/KOL/2011 ASSESSMENT YEARS : 2003- 04 & 2004-05 DCIT, CIRCLE-9, KOLKATA -VS- M/S PACEMAN SALES PROMOTION PVT. LTD. [PAN: AABCP 5021 A] (APPELLANT) (RESPONDENT) I.T.A NO. 916/KOL/201 2 ASSESSMENT YEAR : 2006-0 7 DCIT, CIRCLE-9, KOLKATA -VS- M/S PACEMAN SALES PROMOTION PVT. LTD. [PAN: AABCP 5021 A] (APPELLANT) (RESPONDENT) C.O. NOS.59 & 60/KOL/2 013 (ARISING OUT OF I.T.A NOS. 1058 & 1059/KOL/2011) ASSESSMENT YEARS : 2003- 04 & 2004-05 M/S PACEMAN SALES PROMOTION PVT. LTD. -VS- DCIT, CI RCLE-9, KOLKATA [PAN: AABCP 5021 A] ( CROSS OBJECTOR) (RESPOND ENT) FOR THE DEPARTMENT : SHRI SOUMYAJIT DASGU PTA, ADDL. CIT SR DR FOR THE ASSESSEE : SHRI R. CHOWDHURY, FCA DATE OF HEARING : 23.11.2017 DATE OF PRONOUNCEMENT : 01.12.2017 ORDER PER BENCH: 1. THESE THREE APPEALS BY THE REVENUE AND THE CROSS OBJECTIONS BY THE ASSESSEE ARISE OUT OF THE SEPARATE ORDERS OF THE LEARNED COMMISSIO NER OF INCOME TAX (APPEALS), 2 ITA NOS.1058&1059/KOL/2011 ITA NO. 916/KO/2012 C.O. NOS.59&60/KOL/2013 PACEMAN SALES PROMOTION PVT. LTD. A.YRS.03-04,04-05&06-07 2 CENTRAL-III, KOLKATA [ IN SHORT THE LD CITA] IN APP EAL NOS. 09 & 10/CC-I/CIT(A)C- III/2009-10 DATED 10.03.2011 AND THE ORDER OF LD. C IT(A)-VIII, KOLKATA IN APPEAL NO. 219/CIT(A)-VIII/KOL/10-11 DATED 15.03.2012 AGAINST THE ORDERS PASSED BY THE DCIT, CIRCLE-9, KOLKATA [ IN SHORT THE LD AO] UNDER SECT ION 147/143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE ACT) DATED 31.12.2008, 2 3.12.2010 RESPECTIVELY FOR THE ASSESSMENT YEARS 2003-04 TO 2004-05 & 2006-07 RESPE CTIVELY. 2. AT THE OUTSET, WE FIND THAT THE CROSS OBJECTION S OF THE ASSESSEE FOR THE ASST YEARS 2003-04 AND 2004-05 ARE DELAYED BY 361 DAYS IN FILING BEFOR E US. THE LD AR DREW SUPPORT FROM THE AFFIDAVIT FILED BY THE ASSESSEE STATING THAT THE EA RLIER CHARTERED ACCOUNTANT HAD NOT ADVISED THE ASSESSEE TO PREFER CROSS OBJECTIONS. LATER THERE W AS A CHANGE OF COUNSEL AND THE PRESENT COUNSEL HAD SUGGESTED TO FILE CROSS OBJECTIONS BEFO RE TRIBUNAL WITH A DELAY CONDONATION PETITION. HENCE THE LD AR ARGUED THAT THE ASSESSEE ACTING AS PER THE ADVISE OF THE EARLIER COUNSEL WOULD AMOUNT TO REASONABLE CAUSE FOR THE DE LAY AND IN SUPPORT OF THIS, HE PLACED RELIANCE ON THE DECISION OF DELHI TRIBUNAL IN THE CASE OF ITO VS M/S VISHU IMPE X PVT LTD IN ITA NO. 2765/DEL/2011 AND ITA NO. 3703/DEL/2011 DATED 3 1.12.2015 . IN THE SAID CASE, HE ARGUED THAT ON SIMILAR SET OF FACTS, THE DELHI TRIBUNAL HA D CONDONED THE DELAY IN FILING THE APPEAL. IN RESPONSE TO THIS, THE LD DR VEHEMENTLY OBJECTED FOR CONDONING THE DELAY. WE FIND THAT THE FACTS BEFORE THE DELHI TRIBUNAL AND FACTS BEFORE US ARE IDENTICAL. WE ALSO FIND THAT THE SPECIAL BENCH OF DELHI TRIBUNAL IN THE CASE OF ACIT VS VIRE ET INVESTMENT PVT LTD REPORTED IN (2017) 58 ITR (TRIB) 313 (DELHI) (SB) DATED 16.6.2017 HAD ALSO ADDRESSED THE SIMILAR ASPECT OF CONDONING THE DELAY DUE TO DIFFERENT ADVISE GIVEN B Y THE CHARTERED ACCOUNTANT. IN VIEW OF THESE DECISIONS, WE DEEM IT FIT TO CONDONE THE DELA Y IN THE FACTS AND CIRCUMSTANCES OF THE CASE. ACCORDINGLY, THE CROSS OBJECTIONS OF THE ASSESSEE A RE ADMITTED FOR ADJUDICATION FOR BOTH THE ASST YEARS 2003-04 AND 2004-05. 3 ITA NOS.1058&1059/KOL/2011 ITA NO. 916/KO/2012 C.O. NOS.59&60/KOL/2013 PACEMAN SALES PROMOTION PVT. LTD. A.YRS.03-04,04-05&06-07 3 3. THE ISSUES INVOLVED IN ASST YEARS 2003-04 , 2004 -05 AND 2006-07 ARE IDENTICAL IN NATURE AND HENCE ARE TAKEN UPTOGETHER AND DISPOSED OFF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. THE FACTS OF ASST YEAR 2003-04 ARE TAKEN UP FOR ADJ UDICATION AND THE DECISION RENDERED THEREON WOULD APPLY WITH EQUAL FORCE FOR THE ASST YEARS 200 4-05 AND 2006-07 ALSO EXCEPT WITH VARIANCE IN FIGURES. 4. THE FIRST ISSUE TO BE DECIDED IN ASST YEAR 2003- 04 IS AS TO WHETHER THE LD CITA WAS JUSTIFIED IN DIRECTING THE LD AO TO GRANT DEPRECIATION ON CI VIL WORK STATION AND ERECTION AND FABRICATION SECTION IN THE FACTS AND CIRCUMSTANCES OF THE CASE. THE NEXT INTERCONNECTED ISSUE IS AS TO WHETHER THE LD CITA WAS JUSTIFIED IN HOLDI NG THA THE RATE OF DEPRECIATION ON ELECTRICAL INSTALALTION WAS 25% AND NOT 15% IN THE FACTS AND C IRCUMSTANCES OF THE CASE. 5. THE BRIEF FACTS OF THIS ISSUE IS THAT THE ASSESS EE IS ENGAGED IN THE BUSINESS OF MANUFACTURE OF EDIBLE OILS. THE ORIGINAL RETURN OF INCOME FOR THE ASST YEAR 2003-04 WAS FIELD BY THE ASSESSEE ON 1.12.2003 DELCARING LOSS OF RS 40,53,293/- AND A SSESSMENT U/S 143(3) OF THE ACT WAS FRAMED BY THE LD AO ON 24.3.2006 ACCEPTING THE RETURNED LO SS. LATER THE ASSESSMENT WAS REOPENED BY ISSUANCE OF NOTICE U/S 148 OF THE ACT FOR DISALLOWA NCE OF DEPRECIATION ON CIVIL WORK STATION AND ERECTION AND FABRICATION SECTION ON THE GROU ND THAT THE SAID ASSETS WERE NOT PUT TO USE AND IS RETAINED UNDER WORK IN PROGRESS IN THE BAL ANCE SHEET. SIMILARLY THE LD AO ALSO OBSERVED THAT THE ASSESSEE IS NOT ENTITLED FOR DEPR ECIATION ON ELECTRICAL INSTALLATION AT THE RATE OF 25% AND IS ENTITLED FOR ONLY 15%. THE ASSESSEE FI LED WRITTEN SUBMISSIONS IN THIS REGARD BEFORE THE LD AO EXPLAINING THAT THESE ASPECTS WERE DULY E XAMINED BY THE LD AO IN THE COURSE OF ORIGINAL ASSESSMENT PROCEEDINGS AND THERE WAS NOTHI NG ADVERSE OBSERVED BY HIM ON THESE TWO ASPECTS. MOREOVER, IT WAS ALSO PLEADED THAT THE AS SESSEE HAD RIGHTLY CLAIMED THE DEPRECIATION ON THE ASSETS IN RESPECT OF ASSETS INSTALLED IN ASS T YEAR 2002-03. HENCE IT WAS PLEADED THAT THE BASIS OF REASONING FOR REOPENING ITSELF IS BAD IN L AW AS IT IS BASED ON INCORRECT ASSUMPTION OF FACTS. THE LD AO HOWEVER PROCEEDED TO DISALLOW TH E DEPRECIATION AMOUNTING TO RS 4 ITA NOS.1058&1059/KOL/2011 ITA NO. 916/KO/2012 C.O. NOS.59&60/KOL/2013 PACEMAN SALES PROMOTION PVT. LTD. A.YRS.03-04,04-05&06-07 4 10,87,314/- AND RS 1,02,84,592/- ON ASSETS CLASSIFI ED AS CIVIL WORK STATION AND ERECTION AND FABRICATION RESPECTIVELY. FURTHER THE LD AO ALSO DISALLOWED RS 2,11,448/- ON THE GROUND THAT EXCESS DEPRECIATION ON ELECTRICAL INSTALLATION HA D BEEN TAKEN AT 25% INSTEAD OF 15%. 6. IT WAS EXPLAINED BY THE ASSESSEE THAT THE NOMENC LATURE USED IN THE FINANCIAL STATEMENTS SHOULD NOT BE CONSIDERED BY THE LD AO AND THE SUBST ANCE OVER FORM IS TO BE SEEN. THE LD AO TRIED TO RELATE CIVIL WORK STATION AND ERECTION AND FABRICATION SHOWN UNDER THE HEAD FIXED ASSETS TO THE WORK IN PROGRESS AND DISALLOWED THE D EPRECIATION CLAIMED BY THE ASSESSEE ON THE SAID ASSETS WHICH ARE THE INTEGRAL PART OF PLANT AN D MACHINERY. IT WAS STATED THAT THE CIVIL WORK STATION AND ERECTION AND FABRICATION WHICH ARE REFLECTED UNDER THE SCHEDULE OF FIXED ASSETS OF THE AUDITED ANNUAL ACCOUNTS ARE RELATED T O THE INSTALLATION OF MACHINERY IN THE PLANT AT THE COMPANY FACTORY AT VILL, KALACHHARA, P.S.-CHAND ITALLA, DIST- HOOGHLY-712702. THEREFORE THE SAME ARE INTEGRAL PART OF MACHINERY. ONLY FOR IDENTIFICATION PURPOSES, IT HAS BEEN ACCOUNTED SEPARATELY WHICH ARE ACTUALLY INTEGRAL PA RT OF MACHINERY. THE BOOKS OF ACCOUNTS WERE DULY AUDITED UNDER THE RELEVANT PROVISIONS OF THE COMPANIES ACT, 1956 AND UNDER THE PROVISIONS OF THE ACT HEREIN. IT WAS STATED THAT THE ASSESSMENT FOR THE YEAR WAS MADE U/S 143(3) OF THE ACT BY THE CONCERNED LD AO AFTER SCRU TINY OF THE BOOKS OF ACCOUNTS AND IN THE PROCESS, ALL THE DOCUMENTS / EXPLANATION AS SOUGHT BY THE LD AO WAS DULY PRODUCED BEFORE HIM. THE CLAIM OF THE LD AO THAT THE ABOVEMENTIONED FIXE D ASSETS WERE NOT PUT TO USE AND ARE UNDER WORK IN PROGRESS IS NOT JUSTIFIED DUE TO THE FACT T HAT WITHOUT THESE ASSETS, THE ASSESSEE COULD NOT MANUFACTURE THE GOODS AND THE ASSESSMENT WAS MADE C ONSIDERING THE MANUFACTURING EXPENSES AS WELL AS SALE OF FINISHED PRODUCTS IN RESPECT OF THE RELEVANT ASST YEAR AND THEREFORE IT HAS BEEN INDIRECTLY ACCEPTED BY THE LD AO THAT THOSE ASSETS WERE PUT TO USE AND ARE INTEGRAL PART OF THE PLANT AND MACHINERY. IT WAS FURTHER PLEADED THAT MANUFACTURING ACTIVITES OF REFINED EDIBLE OILS AND VANASPATI IS SIMILAR TO THAT OF CHEMICAL PLANTS AND HAVING VARIETIES OF DIFFERENT PROCESSING VESSELS, INTERMEDIATE TANKS, ANCILLARY MACHINERIES FOR STEAM GENERATION, OIL HEATERS, CHILLING PLANT, COLD STORAGE, POLLUTION TREATMENT PLANTS, HY DROGEN GAS PRODUCING SECTION, BYPRODUCTS 5 ITA NOS.1058&1059/KOL/2011 ITA NO. 916/KO/2012 C.O. NOS.59&60/KOL/2013 PACEMAN SALES PROMOTION PVT. LTD. A.YRS.03-04,04-05&06-07 5 TREATMENT PLANTS, ETC. ALL THESE ASSETS WERE PUT TO USE BY THE ASSESSEE IN THE PREVIOUS YEAR 2001-02 ITSELF AS THE COMMERCIAL PRODUCTION WAS STA RTED ON 19.10.2001, RELEVANT TO ASST YEAR 2002-03. CERTAIN ADDITIONS WERE MADE SUBSEQUENT TO THAT DATE AND THE SAME WERE ALSO CAPITALIZED IN THE BOOKS AND DEPRECIATION CLAIMED A CCORDINGLY. THE ASSESSEE EVEN STATED THAT DURING THE FINANCIAL EYAR 2001-02, THE PROJECT WAS COMPLETED FOR THE COMMERCIAL PRODUCTION AND THE ASSESSEE TRANSFERRED THE CAPITAL EXPENDITUR E INCURRED TILL THE DATE OF COMMENCEMENT OF COMMERCIAL PRODUCTION TO THE RESPECTIVE FIXED ASSET S AS UNDER:- AMOUNT RS. SL NO. PARTICULARS BALANCE AS ON 31.03.2001 TRANSFERRED TO CAPITAL ASSETS AS ON19.10.01 BALANCE AS ON 31.03.2002 1 CONSTRUCTION WORK IN PROGRESS 41002688.41 41002688.41 NIL 2 ADVANCE AGAINST CAPITAL WIP 5983724.00 3440090.14 2543633.86 6.1. THE ASSESSEE ALSO FURNISHED THE DETAILS OF ASS ETS PUT TO USE DURING THE PREVIOUS YEAR 2001- 02 AS UNDER:- AMOUNT RS. SL. NO. PARTICULARS BALANCE AS ON 31.03.2002 1 OPENING BALANCE OF ASSETS AS ON 01.04.2001 56137. 50 2 TRANSFERRED FROM CAPITAL WORK IN PROGRESS PUT TO USE AS ON19.10.2001(RS.41002688.41+3440090.14) 44442778.55 3 FURTHER ADDITION TO FIXED ASSETS DURING THE PREVI OUS YEAR 2001 - 02 58330826.66 TOTAL ASSETS PUT TO USE DURING THE PREVIOUS YEAR 2001-02(AS PER ANNEXURE A TO THE TAX AUDIT REPORT FOR THE A.Y. 2002-03) 102829742.71 6.2. IT WAS FURTHER EXPLAINED THAT CIVIL WORK SECT ION IS NOTHING BUT A PART AND PARCEL OF PLANT AND MACHINERY AS IT INCLUDES THE FOUNDATION WORK FO R INSTALLATION OF DIFFERENT MACHINERIES, 6 ITA NOS.1058&1059/KOL/2011 ITA NO. 916/KO/2012 C.O. NOS.59&60/KOL/2013 PACEMAN SALES PROMOTION PVT. LTD. A.YRS.03-04,04-05&06-07 6 VESSELS, DRAINAGE & OTHER TANKS / PITS FOR POLLUTIO N EQUIPMENTS , UNDERGROUND AND CIVIL TANKS INCLUDING WASTEWATER SEPARATORS ETC, WHICH ARE INTE GRAL PART OF THE PLANT AND MACHINERY. IT WAS ALSO EXPLAINED THAT ERECTION & FABRICATION IS ALSO NOTHING BUT AN INTEGRAL PART OF PLANT AND MACHINERY AS IT INCLUDES THE CHARGES FOR MATERI AL AND ALSO FOR LABOUR TO FABRICATE THE VESSELS, TO CONNECT THE VESSELS, BOILER, CHILLING S ECTION, POLLUTION SECTION ETC THROUGH VARIOUS PIPE LINE AND ESTABLISHING THEIR CONTROL THROUGH VA RIOUS VALVESM CONTROL EQUIPMENT ETC, WITHOUT THESE, NO PRODUCTION CAN BE CARRIED OUT. FURTHER W ITH THE HELP OF THESE AND THE ISOLATED MACHINERIES AND OTHER SECTIONS CAN ONLY BE TERMED A S MANUFACTURING PLANT. THE ASSESSEE ALSO REGISTERED ITSELF WITH THE SALES TAX AUTHORITY IN W EST BENGAL DATED 26.2.2001. THE COMMENCEMENT OF COMMERCIAL PRODUCTION WAS DONE ON 1 9.10.2001 WHICH IS EVIDENT FROM THE CERTIFICATE ISSUED BY THE DIRECTORATE OF INDUSTRIES , WEST BENGAL, CERTIFYING THE SAID DATE. IT WAS ALSO SUBMITTED THAT IN ASST YEAR 2002-03, THE ASSES SEE CLAIMED TOTAL DEPRECIATION OF RS 1,12,41,008/- ON THE ABOVE MENTIONED ASSETS, IN THE COMPUTATION OF TOTAL INCOME AND THE SAME WAS ALLOWED IN THE SCRUTINY ASSESSMENT FRAMED U/S 1 43(3) OF THE ACT. IT WAS EXPLAINED THAT CERTAIN EXTENSION OF PLANT AND MACHINERY WAS UNDER PROCESS, WHICH WAS SHOWN UNDER DIFFERENT SCHEDULE AS ADVANCE AGAINST CAPITAL WORK IN PROGRES S. THE ASSESSEE EVEN GAVE THE PRODUCTION DETAILS FROM THE SAID UNIT AS UNDER:- QUANTITY OF FINISHED GOODS PRODUCED DURING THE PREV IOUS YEAR 2001-02 & 2002-03 PARTICULARS F.Y.2001 - 02 F.Y. 2002 - 03 PRODUCTION (ITEM WISE) UNITS (IN MT.) UNITS (IN MT. ) REFINED OIL 6522.920 22531.960 VANASPATI OIL 847.507 7152.026 MUSTARD OIL - - TOTAL 7370.427 29683.986 6.3. IT WAS ALSO PLEADED THAT THE TERM ELECTRICAL INSTALLATION IS OF WIDE IMPORT AND SHOULD NOT MERELY BE INTERPRETED AS FANS, SWITCHESM WIRING ETC AND ACCORDINGLY THE DISALLOWANCE OF 7 ITA NOS.1058&1059/KOL/2011 ITA NO. 916/KO/2012 C.O. NOS.59&60/KOL/2013 PACEMAN SALES PROMOTION PVT. LTD. A.YRS.03-04,04-05&06-07 7 EXCESS DEPRECIATION THEREON @ 10% MADE BY THE LD AO IS ERRONEOUS. INFACT THE ASSESSEE HAD DONE ELECTRICAL INSTALLATION WHICH ARE INTEGRAL PAR T OF PLANT AND MACHINERY AS THESE ARE ELECTRICAL EQUIPMENTS WHICH WERE INSTALLED IN THE FACTORY PREM ISES OF THE ASSESSEE. THE ASSESSEE PLEADED THAT HEAVY ELECTRICAL INSTALLATION SUCH AS ELECTRIC AL TRANSFORMER, DISTRIBUTION PANELS, BUS BARS, SWITCHGEARS, MAIN SWITCHES, STARTERS, ELECTRIC MOTO RS AND VARIOUS OTHER EQUIPMENTS AND ELECTRIC HIGH VOLTAGE CABLES WERE INSTALLED. THE SAME WERE CATEGORIZED SEPARATELY FOR ACCOUNTING PURPOSES UNDER THE HEAD ELECTRICAL INSTALLATION T HOUGH THEY WERE PART OF PLANT AND MACHINERY AND HENCE THE SAME CANNOT BE EQUATED WITH SWITCHES, SOCKETS, OTHER FITTINGS AND FANS ETC AND CONSEQUENTLY CANNOT BE GROUPED UNDER THE HEAD FURN ITURE & FITTINGS. 7. THE LD CITA DELETED THE DISALLOWANCE OF DEPRECIA TION ON CIVIL WORK SECTION AND ERECTION & FABRICATION BY OBSERVING AS UNDER:- 6. I HAVE CAREFULLY CONSIDERED THE SUBMISSION OF T HE APPELLANT AND ALSO HAVE PERUSED THE ASSESSMENT ORDER. THE AO HAS NOT DISPUTED THE FACT THAT THE ITEMS INCLUDED IN THE CIVIL WORKS SECTION AND ERECTION & FABRICATION ARE INTEGRAL PAR T OF THE PLANT AND MACHINERY SITUATED IN THE ASSESSEES FACTORY AT VILL. KALCHHARA. HE ONLY STAT ED THAT SINCE THE ASSETS ARE SITUATED AT THE SITE FOR CAPITAL WORK-IN-PROGRESS THESE WERE NOT PUT TO USE AND HENCE DEPRECIATION WAS NOT ADMISSIBLE. WHILE SO CONCLUDING HE HAS APPARENTLY L OST SIGHT OF THE FACT THAT THE PROCESS OF SETTING UP THE FACTORY AT THE AFORESAID ADDRESS WAS COMPLETED IN F.Y. 2001-02 I.E. A.Y. 2002-03. THE COMMERCIAL PRODUCTION HAS STARTED DURING THE A. Y. 2002-03 AND RETURN OF INCOME WAS FILED FOR THE A.Y. 2002-03 CLAIMING TOTAL DEPRECIATION OF RS. 1,12,41,008/-. THUS, IT IS CLEARLY EVIDENT THAT THE SITE HAD WORK-IN-PROGRESS TILL THE MIDDLE OF F.Y. 2001-02 AND THE BALANCE OF CONSTRUCTION WORK IN PROGRESS WAS THE APPELLANT HAS STATED THAT THE BALANCE OF CONSTRUCTION WORK IN PROGRESS AS ON 31.03.2001 WAS RS. 4,10,02,6 88/- WHICH WAS TRANSFERRED TO CAPITAL ASSETS A/C. ON 19.10.2001. ONLY THERE WAS AN ADVANC E AGAINST CAPITAL W.I.P. OF RS. 59,83,724/- OUT OF WHICH RS. 34,40,090/- WAS TRANSFERRED TO CAP ITAL ASSETS AS ON 19.10.2001 AND THE BALANCE WAS CARRIED FORWARD. THESE WERE ADVANCES MADE FOR P URCHASE OF MACHINERY. THUS, THE APPELLANT STARTED ITS COMMERCIAL PRODUCTION SINCE 1 9.10.2001 AND THE PRODUCTION DETAILS FOR THE F.Y. 2001-02 AND 2002-03 ARE AS UNDER: PARTICULARS F.Y.2001-02 F.Y. 2002-03 PRODUCTION (ITEM WISE) UNITS (IN MT.) UNITS (IN MT. ) REFINED OIL 6522.920 22531.960 VANASPATI OIL 847.507 7152.026 MUSTARD OIL - - TOTAL 7370.427 29683.986 8 ITA NOS.1058&1059/KOL/2011 ITA NO. 916/KO/2012 C.O. NOS.59&60/KOL/2013 PACEMAN SALES PROMOTION PVT. LTD. A.YRS.03-04,04-05&06-07 8 6.1 FROM THE ABOVE DISCUSSION IT IS CRYSTAL CLEAR T HAT THE FACTORY WAS THE SITE FOR CAPITAL WORK- IN-PROGRESS ONLY UPTO 18.10.2001 AND AFTER THAT DAT E THE COMMERCIAL PRODUCTION HAS STARTED. AFTER THE COMMENCEMENT OF COMMERCIAL PRODUCTION VAR IOUS NEW PLANT AND MACHINERY HAVE BEEN ADDED IN DIFFERENT ASSESSMENT YEAR AND THEY HA VE BEEN INSTALLED AND PUT TO USE. THE ASSETS CLUBBED TOGETHER AS CIVIL WORK SECTION AND ERECTION AND FABRICATION ARE RELATED TO INSTALLATION OF NEW MACHINERIES AND INCLUDE THE FOU NDATION WORK FOR INSTALLATION DIFFERENT MACHINERIES, VESSELS, DRAINAGE FOR POLLUTION EQUIPM ENT, UNDERGROUND AND CIVIL TANKS INCLUDING WASTE WATER SEPARATORS ETC. AND FABRICATION OF DIFF ERENT VESSELS, INTERMEDIATE CONNECTIONS AND CONTROL EQUIPMENT ETC. THERE IS NO DOUBT THAT FOR T HE INSTALLATION AND PROPER WORKING OF THE MACHINERY AND PLANT THERE WORKS WERE ABSOLUTELY ESS ENTIAL. THE A.O.S CONCLUSION THAT SINCE THE ITEMS UNDER THESE TWO HEADS HAVE BEEN INSTALLED IN A FACTORY WHICH WAS ALSO THE SITE FOR WORK-IN-PROGRESS AND HENCE THEY HAVE NOT BEEN PUT I N USE, IS TOTALLY UNFOUNDED AND BASED ON SURMISE WITHOUT APPRECIATION OF ALL THE FACTS. THE CAPITAL WORK-IN-PROGRESS CEASED TO EXIST ON COMMENCEMENT OF COMMERCIAL PRODUCTION AS ON 19.10.2 001 AND FURTHER ADDITION TO THE ASSETS ARE REFLECTED IN THE CAPITAL ASSETS ACCOUNT. THEREF ORE, I HOLD THAT THE ASSETS DESCRIBED UNDER THE NOMENCLATURE CIVIL WORKS SECTION AND ERECTION & FABRICATION WERE AN INTEGRAL PART OF THE INSTALLED PLANT & MACHINERY AND THEY HAVE BEEN PUT TO USE. THEREFORE, THE A.OS ACTION IN DISALLOWING DEPRECIATION ON THESE ASSETS ARE NOT JU STIFIED AS PER LAW. THE A.O IS DIRECTED TO DELETE THE ADDITION OF RS. 1,13,71,906/-. 7.1. WITH REGARD TO DISALLOWANCE OF DEPRECIATION ON ELECTRICAL INSTALLATION AMOUNTING TO RS 2,11,448/- , THE LD CITA DELETED THE DISALLOWANCE B Y OBSERVING AS UNDER:- 8. I HAVE CAREFULLY CONSIDERED THE SUBMISSION OF T HE APPELLANT AND THE REASONING OF THE A.O. GIVEN IN THE ASSESSMENT ORDER. THE AO HAS SIMPLY BR USHED ASIDE THE ASSESSEES EXPLANATION THAT ELECTRICAL INSTALLATION UNDER BY THE ASSESSEE IS I N RESPECT OF HEAVY ELECTRICAL MACHINERY AS NOT SUBSTANTIATED AND UNACCEPTABLE. ONCE THE ASSESSEE S UBMITS AN EXPLANATION REGARDING A CLAIM MADE IT IS TO BE CONSTRUED THAT HE HAS DISCHARGED H IS ONUS. IN CASE THE AO FEELS THAT THE EXPLANATION ARE NOT SUFFICIENT OR NOT SUBSTANTIATE D, IT IS HIS DUTY TO ASK THE ASSESSEE TO PRODUCE THE DETAILS AND EVIDENCES HE REQUIRES. IN THIS CASE THE AO HAS NOT GONE ANY FURTHER TO EXAMINE THE WHOLE RANGE OF FACT NEITHER HE HAS CALLED FOR A NY FURTHER DETAILS BUT SIMPLY BRUSHED ASIDE THE ASSESSEES EXPLANATION AS NOT SATISFACTORY. HEA VY ELECTRICAL INSTALLATION IN A HUGE FACTORY SUCH AS ELECTRICAL TRANSFORMERS, DISTRIBUTION PANEL S, BUS BARS, SWITCH GEARS, ELECTRIC HIGH VOLTAGE CABLES CAN NOT BE EQUATED WITH ELECTRICAL W IRING, SWITCHES, OTHER FITTINGS AND FANS ETC. AS PROVIDED IN NOTE NO. 5 TO THE APPENDIX-1 OF RULE 5 OF THE INCOME TAX RULES. THESE ARE PART OF PLANT & MACHINERY WITHOUT WHICH THE PLANT CAN NO T OPERATE. THE MERE FACT THAT THESE HAVE BEEN CLUBBED UNDER THE NOMENCLATURE ELECTRICAL INST ALLATION DOES NOT MAKE THEM SIMPLE ELECTRICAL ITEMS LIKE WIRING, SWITCHES, FANS ETC. 9 ITA NOS.1058&1059/KOL/2011 ITA NO. 916/KO/2012 C.O. NOS.59&60/KOL/2013 PACEMAN SALES PROMOTION PVT. LTD. A.YRS.03-04,04-05&06-07 9 8.1 IN VIEW OF THE ABOVE I HOLD THAT THE ITEMS SHOW N UNDER THE HEAD ELECTRICAL INSTALLATIONS ARE IN FACT HEAVY ELECTRICAL MACHINERIES AND ARE ELIGIB LE FOR DEPRECIATION AT THE RATE APPLICABLE TO PLANT & MACHINERY. THEREFORE, THE ADDITION OF RS. 2 ,11,488/- ON THIS ACCOUNT IS NOT JUSTIFIED AND IS DIRECTED TO BE DELETED. 8. AGGRIEVED, THE REVENUE IS IN APPEAL BEFORE US ON THE FOLLOWING GROUNDS:- 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) C-III, ERRED IN HOLDING THAT THE INSTALLED MACHINERY WAS PUT TO USE AS THE SUBMISSIONS MADE BY THE ASSESSEE DURING THE COURSE OF ASSESSMENT DO NOT PROVIDE SUFF ICIENT AND REQUIRED EVIDENCES IN SUPPORT OF THE FACT THAT THE MACHINE WAS ACTUALLY P UT TO USE. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) C-III ERRED IN HOLDING THAT THE INSTALLED MACHINERY WAS PUT TO USE BECAUSE WHILE HOLDING THE DECISION, THE LD. CIT(A) HAD CONSIDERED FRESH AND ADDITIONAL EVIDENCE S (VIZ. REGN. CERTIFICATE FROM SALES TAX AUTHORITY, CERTIFICATE DIRECTORATE OF INDUSTRIE S OF WEST BENGAL, CERTIFYING THE DATE OF COMMENCEMENT OF COMMERCIAL PRODUCTION ETC.) WHIC H IS CONTRARY TO RULE 46A OF I.T. RULE, 1962. 3. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A)C-III ERRED IN HOLDING THAT THE RATE OF DEPRECIATION ON ELECTRICAL INSTALL ATION IS 25% AND NOT 15%. 4. THAT THE APPELLANT CRAVES LEAVE TO ADD, ALTER, M ODIFY AND/OR WITHDRAW ANY GROUND OR GROUNDS OF APPEAL AT THE TIME OF HEARING. 9. WE HAVE HEARD THE RIVAL SUBMISSIONS. AT THE OUT SET, WE FIND THAT THE FACTORY AT VILL, KALACHHARA, P.S.-CHANDITALLA, DIST- HOOGHLY-712702 HAD STARTED ITS COMMERCIAL PRODUCTION ON 19.10.2001 AND MANUFACTURING HAD ALREADY COMMENCED THEREON. INFACT THE LD AO HAD ALREADY ALLOWED DEPRECIATION ON THE SAID UNIT IN ASST YEAR 2002-03 ITSELF U/S 143(3) OF THE ACT. HENCE THERE IS NO REASON TO TAKE A DIFFERENT STAND DURING THIS YEAR BY STATING THAT UNIT WAS NOT PUT TO USE DURING THE YEAR. THE LD DR BEFORE US STATED T HAT THE SALES TAX REGISTRATION CERTIFICATE WAS NOT SUBMITTED BEFORE THE LD AO IN ASSESSMENT PROCEE DINGS FOR ASST YEAR 2003-04 AND TO THAT EXTENT IT BECOMES AN ADDITIONAL EVIDENCE FILED BEFO RE THE LD CITA FOR WHICH REMAND REPORT WAS 10 ITA NOS.1058&1059/KOL/2011 ITA NO. 916/KO/2012 C.O. NOS.59&60/KOL/2013 PACEMAN SALES PROMOTION PVT. LTD. A.YRS.03-04,04-05&06-07 10 NOT SOUGHT FOR BY THE LD CITA. BASED ON THIS , HE J USTIFIED THE GROUND RAISED BY THE REVENUE FOR VIOLATION OF RULE 46A OF THE IT RULES. WE ARE NOT ABLE TO PERSUADE OURSELVES TO APPRECIATE THIS ARGUMENT OF THE LD DR AS FILING OF SALES TAX REGIST RATION CERTIFICATE IS ONLY TO STRENGTHEN THE ARGUMENT OF THE ASSESSEE THAT PRODUCTION HAD ALREAD Y COMMENCED IN THE ASST YEAR 2002-03. WE HOLD THAT THE LD CITA HAD GIVEN A CATEGORICAL FI NDING THAT THE SUBJECT MENTIONED ASSETS WERE DULY PUT TO USE IN THE EARLIER ASST YEAR ITSEL F AND DEPRECIATION WAS ALLOWD IN ASST YEAR 2002-03 BY THE LD AO AND HAD DISMISSED THE STAND TA KEN BY THE LD AO. WE DO NOT FIND ANY INFIRMITY IN THE AFORESAID FINDING OF THE LD CITA. 9.1. WITH REGARD TO THE DISALLOWANCE OF DEPRECIATIO N, THE LD CITA HAD HELD THAT THE ASSESSEE HAD INSTALLED HEAVY ELECTRICAL EQUIPMENTS SUCH AS T RANSFORMERS, CONTROL PANELS, ETC. AND HAD CATEGORIZED THE SAME UNDER THE HEAD ELECTRICAL INS TALLATIONS SHOWN SEPARATELY IN THE BALANCE SHEET IN SCHEDULE OF FIXED ASSETS. IT IS NOT IN DI SPUTE THAT THE ELECTRICAL INSTALLATION WOULD FALL UNDER THE BROAD HEAD OF PLANT AND MACHINERY. WE FIND THAT THE LD AO WITHOUT GOING INTO THE BOOKS OF ACCOUNTS SUBMITTED BEFORE HIM AT THE TIME OF ASSESSMENT PROCEEDINGS, HAD COME TO AN ERRONEOUS CONCLUSION THAT THEY WERE MERELY SWITCHES , FANS, FITTINGS ETC SO AS TO GIVE THE REDUCED RATE OF DEPRECIATION TO THE ASSESSEE. WE FIND THAT THE LD CITA HAD RIGHTLY DELETED THE DISALLOWANCE MADE IN THIS REGARD AND ACCORDINGLY FI ND NO INFIRMITY IN HIS ORDER. 10. ACCORDINGLY, THE GROUNDS RAISED BY THE REVENUE FOR THE ASST YEAR 2003-04 ARE DISMISSED. THIS DECISION WOULD APPLY WITH EQUAL FORCE FOR OTHE R REVENUE APPEALS FOR THE ASST YEARS 2004- 05 AND 2006-07 ALSO. 11. WE FIND THAT IN THE CROSS OBJECTIONS RAISED BY THE ASSESSEE FOR THE ASST YEARS 2003-04 AND 2004-05, THE ASSESSEE HAD QUESTIONED THE VALIDITY O F ASSUMPTION OF JURISDICTION FOR FRAMING THE RE-ASSESSMENT IN THE INSTANT CASE. WE DO NOT FIND IT NECESSARY TO ADDRESS THIS ISSUE AS THE RELIEF 11 ITA NOS.1058&1059/KOL/2011 ITA NO. 916/KO/2012 C.O. NOS.59&60/KOL/2013 PACEMAN SALES PROMOTION PVT. LTD. A.YRS.03-04,04-05&06-07 11 HAS BEEN ALREADY GRANTED TO THE ASSESSEE ON MERITS OF THE CASE AND ACCORDINGLY THIS LEGAL ISSUE IS LEFT OPEN. ACCORDINGLY , THE CROSS OBJECTIONS O F THE ASSESSEE ARE DISMISSED AS INFRUCTUOUS. 12. IN THE RESULT, THE APPEAL OF THE REVENUE ARE D ISMISSED AND CROSS OBJECTIONS OF THE ASSESSEE ARE DISMISSED AS INFRUCTUOUS. ORDER PRONOUNCED IN THE COURT ON 01.12.2017 SD/- SD/- [N.V. VASUDEVAN] [ M.BALAGANESH ] JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 01.12.2017 SB, SR. PS COPY OF THE ORDER FORWARDED TO: 1. DCIT, CIRCLE-9, KOLKATA, AAYAKAR BHAWAN, 5 TH FLOOR, P-7, CHOWRINGHEE SQUARE, KOLKATA-700069 2. M/S PACEMAN SALES PROMOTION PVT. LTD., 207, M.D. ROAD, KOLKATA-700007. 3..C.I.T.(A)- , KOLKATA 4. C.I.T.- KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVAT E SECRETARY HEAD OF OFFICE/D.D.O., ITAT, KOLKATA BENCHE S