Dy.CIT, Circle-16(1), Hyderabad V. M/s Lanco Infratech Limited, Hyderabad

ITA 254/HYD/2013

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 5573 (ITAT-HYDERABAD)
• Duration Of Justice: 10 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-01-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2004-2005
• Appeal Filed On: 01-03-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D SUDHAKAR RAO
• Assessee Lawyers: P MURALI MOHAN RAO
• Keywords: Depreciation
• Section: 143(3); 153A; 32; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B', HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SMT. ASHA VIJAYARAGHAVAN, JUDICIAL MEMBER ITA NOS. 252, 253, 254, 255, 256 & 257/HYD/2013 ASSESSMENT YEARS: 2002-03, 2003-04, 2004-05, 2005-0 6, 2006-07 & 2007-08 DY. COMMISSIONER OF INCOME-TAX, CIRCLE 16(1), HYDERABAD. VS. M/S LANCO INFRATECH LTD., HYDERABAD. PAN AAACL3449H APPELLANT RESPONDENT REVENUE BY SRI D. SUDHAKAR RAO ASSESSEE BY: SRI P. MURALI MOHAN RAO DATE OF HEARING: 07/01/2014 DATE OF PRONOUNCEMENT: 07/01/2014 O R D E R PER CHANDRA POOJARI, AM: THESE APPEALS PERTAINING TO ONE ASSESSEE ARE PREFER RED BY THE REVENUE DIRECTED AGAINST A COMMON ORDER OF CIT( A)-V, HYDERABAD DATED 22/11/2012 FOR THE ASSESSMENT YEARS 2002-03 TO 2007-08. SINCE COMMON ISSUES ARE INVOLVED IN THESE APPEALS, THE SAME WERE CLUBBED AND HEARD TOGETHER, THEREFORE, A COMMON ORDER IS PASSED FOR THE SAKE OF CONVENIENCE. ITA NOS. 252 & 253/HYD/2013 FOR THE AYS 2002-03 & 2 003-04. 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS IN BOTH THESE APPEALS: 1. THE CIT(A) ERRED BOTH ON FACTS AND IN THE CIRCUM STANCES OF THE CASE WITHOUT GOING INTO THE MERITS OF THE OR DER OF THE ASSESSING OFFICER. 2. THE CIT(A) ERRED IN ALLOWING THE CLAIM OF THE AS SESSEE WHEN THE ELECTRIC GENERATORS FROM PART OF BLOCK OF ASSETS UNDER THE CATEGORY OF ELECTRICAL EQUIPMENTS AND A RE ELIGIBLE FOR DEPRECIATION AT THE RATE OF 25% ONLY; I.T.A. NO.252 TO 257/HYD/2013 M/S LANCO INFRATECH LTD. 2 3. THE CIT(A) OUGHT TO HAVE CONSIDERED THAT THE ELE CTRIC GENERATORS ARE ANCILLARY TO RUN THE WIND MILLS AND CANNOT BE CONSIDERED AS WIND MILL WHICH BLOCK OF ASSET IS COV ERED BY DEPRECIATION AT THE RATE OF 100%. 3. THE ASSESSING OFFICER HAD MADE THE ADDITIONS TOW ARDS EXCESS CLAIM OF DEPRECIATION ON ELECTRICAL EQUIPMEN TS FOR THE AY 2002-03 AT RS. 5,52,63,750/- AND FOR AY 2003-04 AT RS. 5,59,87,820/-. 4. THE CIT(CENTRAL) HYDERABAD IN ITS ORDER U/S 263 OF THE ACT HAD POINTED OUT THAT THE DEPRECIATION AT 25% ONLY W AS ALLOWABLE ON ELECTRICAL EQUIPMENT WHICH WORKED OUT TO RS. 3,76,1 4,006/- (FOR AY 2002-03 AT RS. 1,89,38,019/- AND FOR AY 2003-04 AT RS. 1,86,75,987/-) WHEREAS THE ASSESSEE CLAIMED DEPRECI ATION OF RS. 14,81,41,506/- WHICH WAS ALLOWED BY THE ASSESSING O FFICER IN ORDER UNDER SECTION 143(3) R.W.S. 153A OF THE ACT. 5. CONSEQUENTLY, THE ASSESSING OFFICER DURING THE C OURSE OF ASSESSMENT PROCEEDINGS FOUND THAT THE ASSESSEE HAD CLAIMED 100% DEPRECIATION ON WIND ELECTRIC GENERATORS. THE ASSESSING OFFICER WAS OF THE VIEW THAT THE WIND ELECTRIC GENE RATORS ARE IN NATURE OF ELECTRICAL EQUIPMENTS AND DEPRECIATION IS ALLOWABLE AT 25% ONLY BUT NOT AT 100% AS CLAIMED BY THE ASSESSEE . ACCORDINGLY, THE ASSESSING OFFICER CALCULATED THE DEPRECIATION A T 25% AND ADDED BACK THE BALANCE AS EXCESS DEPRECIATION CLAIMED BY THE ASSESSEE. 6. BEFORE THE CIT(A), THE ASSESSEE STATED THAT THE ASSESSEE COMPANY IS HAVING WIND MILL POWER PROJECT SITUATED AT CHITRADURGA, KARNATAKA WHICH WAS CONCEIVED BY M/S ENCON SERVICES LTD., CHENNAI AT A COST OF RS. 14,73,71,680/-. FURTHER, I T WAS STATED THAT LATER, ENCON SERVICES LTD., CHENNAI WAS AMALGAMATED WITH THE ASSESSEE COMPANY I.E. LANCO INFRATECH LTD., HYDERAB AD, WITH EFFECT FROM 01/04/2001 AND THE AMALGAMATION WAS APPROVED B Y THE HONBLE HIGH COURT OF ANDHRA PRADESH, VIDE ITS ORDE R DATED I.T.A. NO.252 TO 257/HYD/2013 M/S LANCO INFRATECH LTD. 3 08/10/2002. IT WAS SUBMITTED THAT THE WIND MILL POW ER PROJECT IS ELIGIBLE FOR HIGHER ATE OF DEPRECIATION AT 100% AS PER THE PROVISIONS OF THE IT ACT AND THAT THE AFORESAID POWER PROJECT AT CHITRADURGA, KARNATAKA, WAS COMMISSIONED ON 30 TH MARCH, 2002 AND USED FOR LESS THAN 180 DAYS DURING THE FY 2001-02. HE, THERE FORE, SUBMITTED THAT THE ASSESSEE ACCORDINGLY CALCULATED AND CLAIME D DEPRECIATION ON WIND ELECTRIC GENERATORS AT 50%. 6.1 THE ASSESSEE FURTHER STATED THAT THE VIEW TAKEN BY THE ASSESSING OFFICER IS NOT TENABLE IN LAW AS WELL AS ON FACTS. THE ASSESSEE COMPANY, DURING THE COURSE OF ASSESSMENT P ROCEEDINGS, HAD SUBMITTED THE INVOICE COPIES OF THE WIND MILL I N WHICH IT IS CLEARLY MENTIONED SPECIFICATION OF ASSETS AS WIND ELECTRIC GENERATORS AND THAT CONSIDERING THEM, THE ASSESSIN G OFFICER OUGHT TO HAVE ALLOWED THE DEPRECIATION AT 100%. IN SUPPOR T OF ITS ARGUMENTS, THE ASSESSEE COMPANY HAD RELIED ON THE D ECISIONS OF HONBLE HIGH COURT OF RAJASTHAN, IN THE CASES OF CI T VS. AGARWAL TRANSFORMERS (P) LTD. [2003] 127 TAXMAN 538 (RAJ.) AND CIT VS. ABRESSIVE INDIA [2003] 133 TAXMAN 389 (RAJ.). FURTH ER, ASSESSEE RELIED ON THE DECISION OF ITAT MUMBAI, IN THE CASE OF HINDUSTAN PLATINUM PVT. LTD. VS. ACIT IN ITA NO. 3352/MUM/201 0. 7. THE CIT(A) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE, DIRECTED THE ASSESSING OFFICER TO ALLOW 1 00% DEPRECIATION ON THE ELECTRIC WIND GENERATORS AS THE SAME ARE ELIGIBLE FOR HIGHER RATE OF DEPRECIATION BY OBSERVI NG AS UNDER: 4.6.......................IT IS NOT A DISPUTED FACT THAT THE APPELLANT IS HAVING WINDMILL POWER PROJECT AND WAS COMMISSION ED ON 30-03-2002. THE ONLY POINT OF CONTENTION IS RATE OF DEPRECIATION ON WIND ELECTRICAL GENERATORS. IN THIS REGARD, THE RAJASTHAN HIGH COURT IN THE CASE OF CIT VS. AGARWAL TRANSFORMERS HAVE CONSTRUED THE WORD WIND ELECTRIC GENERATORS BASED ON THE PRINCIPLE OF EJUSDEM GENERI S AND HELD THAT WIND ELECTRIC GENERATORS ARE ELIGIBLE FOR THE HIGHER RATE OF DEPRECIATION. ALSO, IN THE CASE OF HINDUSTA N PLATINUM (P) LTD. VS. ACIT, ITAT MUMBAI, DEPRECIATION HAS BE EN ALLOWED ON WIND ELECTRIC GENERATORS AT A HIGHER RAT E. I.T.A. NO.252 TO 257/HYD/2013 M/S LANCO INFRATECH LTD. 4 4.7 I AM OF THE VIEW THAT THE WIND ELECTRIC GENERAT ORS ARE THE PART OF THE WIND POWER PROJECTS. THE WIND POWER PROJECTS CANNOT BE OPERATIONAL WITHOUT THE WIND ELECTRIC GEN ERATORS. THE HIGHER RATE OF DEPRECIATION IS GIVEN TO ENCOURA GE MORE WIND POWER PROJECTS. THEREFORE, AFTER CONSIDERING T HE AFORESAID FACTS OF THE CASE AND CASE LAWS, I HOLD T HAT THE ELECTRIC WIND GENERATORS ARE ELIGIBLE FOR HIGHER AT E OF DEPRECIATION. FURTHER, IT IS HELD THAT, THE DEPRECI ATION FOR THE YEAR 2003-04 SHOULD ALSO BE ALLOWED AT 100%. ACCORD INGLY, I DIRECT THE ASSESSING OFFICER TO ALLOW THE SAME. THU S THIS GROUND OF APPEAL IS ALLOWED. 8. AGGRIEVED BY THE ORDER OF THE CIT(A), THE REVENU E IS IN APPEAL BEFORE US. 9. WE HAVE HEARD THE ARGUMENTS OF BOTH THE PARTIES, PERUSED THE RECORD AND HAVE GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THE ASSESSING OFFICER WAS OF THE VIEW THAT T HE WIND ELECTRIC GENERATORS ARE IN THE NATURE OF ELECTRICAL EQUIPMEN TS AND DEPRECIATION IS ALLOWABLE AT 25% ONLY BUT NOT AT 10 0% AS CLAIMED BY THE ASSESSEE. ON THE OTHER HAND, THE CIT(A) HELD TH AT ELECTRIC WIND GENERATORS ARE ELIGIBLE FOR HIGHER RATE OF DEPRECIA TION AS THE SAME ARE PART OF THE WIND POWER PROJECTS AND THE WIND PO WER PROJECTS CANNOT BE OPERATIONAL WITHOUT THE WIND ELECTRIC GEN ERATORS. 10. IT IS OBSERVED THAT THE EMPHASIS FOR GRANTING HIGHER RATE OF DEPRECIATION AS FAR AS WIND ELECTRIC GENERATORS ARE CONCERNED, THE NECESSITY IS TO EXAMINE THE FUNCTIONAL TEST OF THE SAID EQUIPMENT. A CATEGORICAL EVIDENCE HAS TO BE PLACED THAT THE EQUI PMENT IS WHETHER AN INTEGRAL PART OF WIND MILL POWER PROJECT . SUCH AN EVIDENCE OR FINDING IS ABSENT IN THIS APPEAL. EVEN IN THE CASE OF CIT VS. ABAD HOTELS INDIA (P) LTD. (2001) 170 CTR (SC) 185 : (2001) 251 ITR 204 (SC), THE HONBLE SUPREME COURT HAS HEL D THAT THE HOTEL BUILDING WAS NOT A PLANT SO THE ASSESSEE WAS HELD AS NOT ENTITLED TO EXTRA-SHIFT DEPRECIATION ALLOWANCE. IN THE PRESENT APPEAL NOTHING IS ON RECORD TO ESTABLISH THAT ON THE TOUCH STONE OF FUNCTIONAL TEST THE WIND ELECTRIC GENERATORS ARE SO DESIGNED THAT I.T.A. NO.252 TO 257/HYD/2013 M/S LANCO INFRATECH LTD. 5 THEY CAN ONLY BE USED FOR POWER GENERATION AS DONE BY THE WIND MILL AND MEANT FOR NO OTHER USE. THERE IS NOTHING O N RECORD, SUCH AS A REPORT FROM A QUALIFIED PERSON TO ESTABLISH TH AT THE WIND ELECTRIC GENERATORS ARE DESIGNED IN SUCH A MANNER T O FACILITATE THE POWER GENERATION AND DISTRIBUTION FROM WINDMILL. NA TURALLY A MACHINERY DOES NOT REQUIRE PROTECTION SO INSTALLED IN A WIND MILL POWER PROJECT BUT SUCH A GENERATOR CANNOT BE SAID TO BE A PART AND PARCEL OF THE PROJECT. RESULTANTLY THE CLAIMS FAIL ON FUNCTIONAL TEST. 11. IT IS AN ACCEPTED PRINCIPLE OF INTERPRETATION THAT IT IS NOT ALWAYS A SAFE WAY TO CONSTRUE THE STATUTE BY DIVIDI NG IT BY A PROCESS OF ETYMOLOGICAL DISSECTION AND AFTER SEPARA TING WORDS FROM THE CONTEXT TO GIVE EACH WORD SOME PARTICULAR DEFIN ITION GIVEN BY LEXICOGRAPHERS AND THEN TO RECONSTRUCT THE INSTRUME NT UPON THE BASIS OF THOSE INTERPRETATION. THE CORRECT METHOD I S THAT WHEN PARTICULAR MEANING IS ATTACHED TO A WORD AS IS GIVE N IN AN INSTRUMENT IS TO BE GATHERED FROM THE CONTEXT, THE NATURE OF THE SUBJECT-MATTER, THE PURPOSE OR THE INTENTION OF THE AUTHOR AND THE EFFECT OF GIVING TO THEM ONE OR MORE OTHER PERMISSI BLE MEANING ON THE OBJECT TO BE ACHIEVED. APPLYING THIS TEST, WE H AVE TO GATHER THE MEANING OF THE WORDS SUCH AS PLANT AND MACHINERY. FOR INTERPRETING THE SCHEME OF DEPRECIATION AS PRESCRIB ED UNDER S. 32 IT IS NOT NECESSARY THAT WE SHOULD ADOPT A JUDGE-SENSE MEANING, WHICH IS SOMETIMES ARTIFICIAL AND IMPRECISE IN APPL ICATION BY GIVING A MEANING ALTOGETHER DIFFERENT FROM THE STATUTORY P ROVISIONS. THE SCHEME OF S. 32 UNEQUIVOCALLY LEADS TO THE CONCLUSI ON THAT ON ONE HAND 'PLANT' AND ON THE OTHER HAND 'MACHINERY' ARE TO BE TREATED AS SEPARATE FOR THE PURPOSE OF ALLOWANCE OF DEPRECIATI ON. MOREOVER, HOW ONE CAN IGNORE THE BLOCK OF ASSETS AS PRESCRIBE D IN THE TABLE OF RATES FOR THE PURPOSE OF ALLOWANCE OF DEPRECIATION IN APPENDIX I OF IT RULES. AS PER THIS APPENDIX PART A CONTAINS BU ILDING IN A SEPARATE HEAD, FURNITURE AND FITTINGS IN ANOTHER HE AD AND MACHINERY AND PLANT IN A DIFFERENT HEAD AND ELECTRICAL FITTIN GS IN A DIFFERENT HEAD BY PRESCRIBING DIFFERENT RATES OF DEPRECIATION S. THE SCIENTIFIC I.T.A. NO.252 TO 257/HYD/2013 M/S LANCO INFRATECH LTD. 6 REASON IS OFTEN DISCUSSED AS THE PERIOD OF DIMINUTI ON FOR TANGIBLE ASSETS. IF THE PERIOD OF DIMINUTION OR WEAR-TEAR IS VERY FAST THAN HIGHER RATE OF DEPRECIATION IS GRANTED. NATURALLY T HE SPEED WITH WHICH WIND MILLS GET DISCARDED DUE TO WEAR AND TEA R, THE GENERATOR DO NOT GET WEAR AND TEAR SO FAST. ON THIS BASIS, AS WELL, WE CANNOT HOLD THAT GENERATORS ARE NOT AT PAR WITH THE 'WINDM ILL' AS FAR AS THE PERIOD OF DIMINUTION IS CONCERNED. MOREOVER SOMETIM ES TO PROMOTE A PARTICULAR ACTIVITY THE STATUTE PROVIDES CERTAIN INCENTIVES IN THE SHAPE OF HIGHER DEPRECIATION. WE HAVE TO KEEP IN MI ND SUCH AN INTENTION OF THE LEGISLATURE AS WELL. HOWEVER NO SU CH INTENTION HAS EVER BEEN EXPRESSED IN THE LEGISLATURE TO PROVIDE H IGHER RATE OF DEPRECIATION IN RESPECT OF GENERATOR SURROUNDING TH E WINDMILL. RATHER THE APPENDIX AND THE DEPRECIATION SCHEDULE H AS CATEGORICALLY WORDED THAT 'WINDMILLS AND ANY SPECIA LLY DESIGNED DEVICES WHICH RUN ON WIND MILLS' ARE QUALIFIED FOR 100 PER CENT RATE OF DEPRECIATION. SINCE THE GENERATORS ARE NOT SPECI ALLY DESIGNED DEVICES HENCE IN OUR CONSIDERED OPINION, AS PER THE DISCUSSION MADE HEREIN ABOVE, ARE NOT ENTITLED FOR HIGHER DEP RECIATION AS CLAIMED BY THE ASSESSEE. IN VIEW OF THE ABOVE DISCU SSION, WE REVERSE THE ORDER OF THE CIT(A) AND RESTORE THAT OF THE ASSESSING OFFICERS ORDER. ACCORDINGLY, THE GROUND RAISED BY THE REVENUE ON THIS ISSUE IN BOTH THE APPEALS ARE ALLOWED. 12. IN THE RESULT, BOTH THE APPEALS IN ITA NOS. 252 & 253/HYD/2013 FOR AY 2002-03 AND 2003-04 ARE ALLOWED . ITA NOS. 254, 255, 256 & 257/HYD/2013 FOR AYS 2004- 05 TO 2007-08 13. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS, W HICH ARE COMMON, IN ALL THE YEARS UNDER CONSIDERATION: 1. THE CIT(A) ERRED BOTH ON FACTS AND IN THE CIRCUM STANCES OF THE CASE WITHOUT GOING INTO THE MERITS OF THE OR DER OF THE ASSESSING OFFICER. I.T.A. NO.252 TO 257/HYD/2013 M/S LANCO INFRATECH LTD. 7 2. THE CIT(A) ERRED IN DIRECTING THE ASSESSING OFFI CER TO ALLOW DEDUCTION U/S 80IA AS CLAIMED BY THE ASSESSEE WITHO UT CONSIDERING EXPLANATION 5 TO SECTION 32(1)(III) O F THE IT ACT, 1961. 3. THE CIT(A) OUGHT TO HAVE CONSIDERED THE FACT THA T THE ASSESSEE FAILED TO FOLLOW RULE 18BBB OF IT RULES, 1 960 AS PER WHICH ASSESSEES CLAIMING DEDUCTION U/S 80IA HA VE TO MAINTAIN A SEPARATE REPORT WHICH SHOULD BE ACCOMPAN IED BY P&L ACCOUNT, BALANCE SHEET, AS IF IT IS A SEPARATE AND DISTINCT ENTITY. 14. BRIEFLY THE FACTS OF THE CASE ARE THAT THE ASSE SSING OFFICER HAD MADE THE FOLLOWING DISALLOWANCE WITH REGARD TO THE EXEMPTION CLAIMED BY THE ASSESSEE COMPANY U/S 80IA FROM THE P ROFITS DERIVED FROM WIND MILL PERTAINING TO THE ASSESSMENT YEARS 2 004-05 TO 2007- 08: AY AMOUNT (RS.) 2004-05 38,21,764/- 2005-06 1,75,24,861/- 2006-07 1,54,29,336/- 2007-08 1,41,27,947/- 14.1 THE ASSESSING OFFICER WAS OF THE OPINION THAT WHILE CALCULATING THE PROFITS FOR DEDUCTION U/S 80IA OF T HE ACT, THE ASSESSEE COMPANY HAD NOT REDUCED THE PROFITS BY DEP RECIATION ON WIND MILL AND HENCE HAD CLAIMED HIGHER DEDUCTION. F URTHER, THE ASSESSING OFFICER WAS OF THE OPINION THAT ASSESSEE HAD NOT MAINTAINED PROPER ACCOUNTS IN RESPECT OF ENTERPRISE S CLAIMING DEDUCTION U/S 80IA AND HENCE, THE BALANCE SHEET AND PROFIT AND LOSS ACCOUNT AS ENCLOSED TO FORM 10CCB WERE NOT ACC EPTABLE. 15. BEFORE THE CIT(A), IT WAS CONTENDED THAT THE DE PRECIATION ON THE WIND MILL PROJECT HAD ALREADY BEEN FULLY CLAIME D IN THE ASSESSMENT YEARS 2002-03 AND 2003-04 AND THERE IS N O BLOCK OF ASSET REMAINING TO CLAIM ANY DEDUCTION FROM 2004-05 ONWARDS. IT WAS SUBMITTED THAT THE ASSESSEE COMPANY HAD CLAIMED DEDUCTION U/S 80IA OF THE IT ACT IN RESPECT OF THE INCOME DER IVED FROM POWER I.T.A. NO.252 TO 257/HYD/2013 M/S LANCO INFRATECH LTD. 8 GENERATION FROM WIND MILL AND THE WIND POWER UNIT I S A SEPARATE UNIT HELD BY THE ASSESSEE AND A SEPARATE BALANCE SHEET A ND PROFIT AND LOSS ACCOUNT WAS PREPARED FOR THE PURPOSE OF ARRIVI NG AT THE PROFIT FOR THE WIND POWER UNIT HELD BY THE ASSESSEE. THE A SSESSEE FILED AUDIT REPORT REQUIRED U/S 80IA(7) OF THE ACT IN FOR M NO. 10CCB. HE SUBMITTED THAT THE WIND POWER UNIT IS A SEPARATE UN IT HELD BY THE ASSESSEE AND A BALANCE SHEET IS DRAWN UP FOR THE PU RPOSE. 16. AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESS EE THE CIT(A) HELD AS FOLLOWS: 5.6 I HAVE CAREFULLY GONE THROUGH THE ASSESSMENT OR DERS AND SUBMISSIONS MADE BY THE APPELLANT. IN MY VIEW, AS DISCUSSED IN THE AFORESAID PARAS, THE APPELLANT IS ELIGIBLE FOR HIGHER RATE OF DEPRECIATION FOR THE AYS 2002-03 AND 2003-04 ON WIND MILL PROJECT AND ACCORDINGLY, NO DEPRECIATI ON REMAINS TO BE CLAIMED FROM THE AY 2004-05. HENCE, THE PROFI TS FROM WIND POWER PROJECTS AS CALCULATED BY THE APPELLANT COMPANY FOR THE PURPOSE OF DEDUCTION U/S 80IA OF THE ACT AR E CORRECT. 5.7 FURTHER, IT IS AN ESTABLISHED FACT THAT A CONSE QUENTIAL ORDER PASSED AFTER ORDER U/S 263 SHOULD BE MADE ONL Y ON THE SPECIFIC ISSUES FOR WHICH 263 ORDER WAS ISSUED. THE ASSESSING OFFICER CANNOT GO BEYOND THE DIRECTIONS G IVEN IN ORDER U/S 263 WHILE PASSING THE CONSEQUENTIAL ORDER U/S 143(3) R.W.S. 263. A HARMONIOUS READING OF THE ORDE R U/S 263 PASSED ON 11/03/2011 STATES THAT THE CLAIM OF DEDUC TION U/S 80IA SHOULD BE VERIFIED ONLY WITH REDUCTION OF DEPR ECIATION IN ACCORDANCE WITH PROVISIONS OF EXPLANATION 5 TO SECT ION 32(I)(III). THEREFORE, THE ASSESSING OFFICER CANNOT REASSESS THE CLAIM OF DEDUCTION U/S 80IA WITH REGARD TO MAIN TENANCE OF BOOKS OF ACCOUNT. AGGRIEVED, THE REVENUE IS IN APPEAL BEFORE US FOR T HE ASSESSMENT YEARS 2004-05 TO 2007-08. 17. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE RECORD. AS HELD BY THE CIT(A) THE ASSESSING OFFICER CANNOT REA SSESS THE CLAIM OF DEDUCTION U/S 80IA WITH REGARD TO MAINTENANCE OF BOOKS OF ACCOUNT, AS THE ASSESSEE HAS ALREADY CLAIMED THE SA ME IN AYS 2002-03 AND 2003-04. MOREOVER, WE FIND THAT THE COO RDINATE BENCH I.T.A. NO.252 TO 257/HYD/2013 M/S LANCO INFRATECH LTD. 9 IN ASSESSEES OWN CASE IN AY 2004-05 IN ITA NO. 88/ HYD/2010 DATED 09/07/2012 ON SIMILAR GROUND HELD AS FOLLOWS: 18.............THE ASSESSEE HAD COMPUTED PROFITS OF THE UNDERTAKING AND HAS ALSO FILED CERTIFICATE OF THE A UDITOR IN RESPECT OF THE ELIGIBLE UNDERTAKING. IN THESE CIRCU MSTANCES, WE DEEM IT FIT TO SET ASIDE THIS ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR RECONSIDERING THE PROFITABILI TY OF THE ELIGIBLE UNDERTAKING ON THE BASIS OF THE WORKING FU RNISHED BY THE ASSESSEE, AFTER GIVING REASONABLE OPPORTUNITY T O THE ASSESSEE TO PUT FORWARD ITS CASE. 18. AS SUBMITTED BY THE ASSESSEE COMPANY THAT THE D EPRECIATION ON THE WIND MILL PROJECT HAS ALREADY BEEN FULLY CLA IMED IN THE ASSESSMENT YEARS 2002-03 AND 2003-04 AND THERE IS N O BLOCK OF ASSET REMAINING TO CLAIM ANY DEDUCTION FROM 2004-05 ONWARDS. THEREFORE, WE DO NOT FIND ANY INFIRMITY IN THE ORDE R OF THE CIT(A) IN HOLDING THAT NO DEPRECIATIONS REMAINS TO BE CLAIMED FROM THE AY 2004-05 AND THE PROFITS FROM WIND POWER PROJECTS AS CALCULATED BY THE ASSESSEE COMPANY FOR THE PURPOSE OF DEDUCTION U /S 80IA OF THE ACT ARE CORRECT AND, ACCORDINGLY, THE ORDER OF THE CIT(A) IS HEREBY UPHELD IN ALL THE ASSESSMENT YEARS UNDER CONSIDERAT ION. THE GROUNDS RAISED BY THE REVENUE ON THIS ISSUE ARE DIS MISSED IN ASSESSMENT YEARS 2 19. IN THE RESULT, APPEALS IN ITA NOS. 254, 255, 25 6 & 257/HYD/2013 ARE DISMISSED. 20. TO SUM UP, APPEALS IN ITA NOS. 252 & 253/HYD/20 13 ARE ALLOWED AND APPEALS IN ITA NOS. 254, 255, 256 & 257 /HYD/2013 ARE DISMISSED. PRONOUNCED IN THE OPEN COURT ON 07/01/2014. SD/- (ASHA VIJAYARAGHAVAN) JUDICIAL MEMBER SD/- (CHANDRA POOJARI) ACCOUNTANT MEMBER HYDERABAD, DATED 7 TH JANUARY, 2014. I.T.A. NO.252 TO 257/HYD/2013 M/S LANCO INFRATECH LTD. 10 KV COPY FORWARDED TO: 1. DCIT, CIRCLE 16(1), ROOM NO. 612, 6 TH FLOOR, AAYAKAR BHAVAN, BASHEERBAGH, HYDERABAD 2. M/S LANCO INFRATECH LTD., LANCO HOUSE, PLOT NO. 4, SOFTWARRE UNITS LAYOUT, HITECH CITY, MADHAPUR, HYDERABAD. 3. CIT(A)-V, HYDERABAD 4. CIT-IV, HYDERABAD. 5. THE DR, ITAT, HYDERABAD