ACIT CIRCLE 20(3), Mumbai V. M/S REAL GOLD DEVELOPERS LLP, Mumbai

ITA 2733/MUM/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 7927 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 2 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-07-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2013-2014
• Appeal Filed On: 02-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Depreciation
• Section: 143(3); 143(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH D, MUMBAI BEFORE SHRI RAJESH KUMAR, ACCOUNTANT MEMBER AND SHRI AMARJIT SINGH, JUDICIAL MEMBER ITA NO.2733/M/2019 ASSESSMENT YEAR: 2013-14 ACIT, CIRCLE-20(3), 615, 6 TH FLOOR, PIRAMAL CHAMBERS, LALBAUG, MUMBAI - 400012 VS. M/S. REAL GOLD DEVELOPERS, 3, NARAYAN BUILDING, 23 L.N. ROAD, DADAR (EAST), MUMBAI 400014 PAN: AAMFR2044P (APPELLANT) (R ESPONDENT) ITA NO.1940/M/2019 ASSESSMENT YEAR: 2013-14 M/S. REAL GOLD DEVELOPERS, 3, NARAYAN BUILDING, 23 L.N. ROAD, DADAR (EAST), MUMBAI 400014 PAN: AAMFR2044P VS. ACIT, CIRCLE-20(3), 615, 6 TH FLOOR, PIRAMAL CHAMBERS, LALBAUG, MUMBAI - 400012 (APPELLANT) (R ESPONDENT) PRESENT FOR: ASSESSEE BY : SHRI VIJAY MEHTA, A.R. REVENUE BY : SHRI SUSHIL KUMAR MISHRA, D.R. DATE OF HEARING : 18.06.2021 DATE OF PRONOUNCEMENT : 09.07.2021 O R D E R PER RAJESH KUMAR, ACCOUNTANT MEMBER: THE ABOVE TITLED CROSS APPEALS ONE BY THE ASSESSEE AND THE OTHER BY THE REVENUE HAVE BEEN PREFERRED AGAINST TH E ORDER DATED 01.02.2019 OF THE COMMISSIONER OF INCOME TAX (APPEALS) ITA NO.2733/M/2019 M/S. REAL GOLD DEVELOPERS 2 [HEREINAFTER REFERRED TO AS THE CIT(A)] RELEVANT TO ASSESSMENT YEAR 2013-14. 2. FIRST WE TAKE UP ITA NO.1940/M/2019 AND THE GROU NDS TAKEN BY THE ASSESSEE ARE REPRODUCED AS UNDER:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE A ND IN LAW, LD CIT(A) ERRED IN CONFIRMING THE DISALLOWANCE OF THE DEPRECIATION ON HELICOPTER TO THE EXTENT 25% OF TOTAL DEPRECIATION OF RS. 2,26,64,020/- I.E. RS. 56 ,66,005/- BY MERELY STATING THAT THE USE OF HELICOPTER FOR NON-BUSINESS PURPOSE BY THE D IRECTOR OF THE APPELLANT CANNOT BE RULED OUT. DISALLOWANCE MADE WITHOUT APPRECIATIN G THE SUBMISSIONS OF THE APPELLANT, IS BAD IN LAW AND NEEDS TO BE CANCELLED. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, LD CIT(A) ERRED IN CONFIRMING THE DISALLOWANCE OF THE EXPENSES IN CONN ECTION WITH HELICOPTER TO THE EXTENT 25% OF TOTAL EXPENDITURE OF RS. 10,06,057/- I.E. RS. 2,51,5147- BY MERELY STATING THAT THE USE OF HELICOPTER FOR NON-BUSINESS PURPOSE BY THE DIRECTOR OF THE APPELLANT CANNOT BE RULED OUT. DISALLOWANCE MADE WI THOUT APPRECIATING THE SUBMISSIONS OF THE APPELLANT, IS BAD IN LAW AND NEE DS TO BE CANCELLED. 3. THE APPELLANT CRAVES LEAVE TO ADD, TO AMEND, AL TER/DELETE AND/OR MODIFY THE ABOVE GROUNDS OF APPEAL ON OR BEFORE THE FINAL HEAR ING. 3. THE ISSUE RAISED IN 1 ST GROUND OF APPEAL IS AGAINST THE CONFIRMATION OF DISALLOWANCE OF DEPRECIATION BY LD. CIT(A) AS MADE BY THE AO TOWARDS DEPRECIATION ON HELICOPTER O F RS.56,66,005/- ON THE GROUND OF NON BUSINESS USE OF THE HELICOPTER. IN THE GROUND NO. 2 THE ASSESSEE ASSAI LED THE ORDER OF LD. CIT(A) CHALLENGING THE PARTIAL CONFIRMATION OF EXPENSES ON MAINTENANCE OF HELICOPTER OF RS.2,51,514/-. 4. THE FACTS IN BRIEF ARE THAT THE ASSESSEE IS IN T HE BUSINESS OF CONSTRUCTION, DEVELOPMENT AND REAL ESTATE. DURING THE YEAR THE ASSESSEE FILED THE RETURN OF INCOME ON 30.11.2013 D ECLARING A LOSS OF RS.18,16,11,737/- WHICH WAS PROCESSED UNDER SECTION 143(1) OF THE ACT. THEREAFTER, THE CASE OF THE ASS ESSEE WAS SELECTED FOR SCRUTINY UNDER CASS AND STATUTORY NOTI CES WERE DULY ISSUED AND SERVED UPON THE ASSESSEE. DURING T HE YEAR THE ASSESSEE PURCHASED A HELICOPTER IN CO-OWNERSHIP WIT H OTHER ITA NO.2733/M/2019 M/S. REAL GOLD DEVELOPERS 3 PARTIES. THE ASSESSEES SHARE IN THE OWNERSHIP OF HELICOPTER WAS 25% AND ACCORDINGLY THE ASSESSEE CLAIMED DEPRECIATI ON ON THE SAME AND ALSO CLAIMED MAINTENANCE EXPENSES OF THE S AID HELICOPTER. THE AO CALLED UPON THE ASSESSEE TO JUS TIFY THE CLAIM OF DEPRECIATION AND EXPENSES ON MAINTENANCE OF HELI COPTER. THE ASSESSEE SUBMITTED BEFORE THE AO THAT IT HAD CLAIME D DEPRECIATION OF RS.2,26,64,020/- AND MAINTENANCE EX PENSES OF RS.10,06,057/- TO THE EXTENT OF ITS SHARE, IN THE P ROFIT & LOSS ACCOUNT AND ALSO PRODUCED THE LOG BOOK WHICH CONTAI NED THE NAME OF THE TRAVELLERS, HOURS OF TRAVEL, PURPOSE OF TRAVEL ETC. IN ORDER TO JUSTIFY THE ALLOWABILITY OF DEPRECIATION A ND EXPENDITURE DEBITED IN THE PROFIT & LOSS ACCOUNT. THE ASSESSEE ALSO SUBMITTED BEFORE THE AO THAT THE HELICOPTER IS BEIN G USED FOR BUSINESS PURPOSES ONLY. HOWEVER, THE SUBMISSIONS O F THE ASSESSEE DID NOT FIND FAVOUR WITH THE AO AND HE REJ ECTED THE CLAIM OF THE ASSESSEE ON THE GROUND THAT ASSESSEE H AS NOT SHOWN ANY INCOME FROM THE REAL ESTATE BUSINESS IN T HE PROFIT & LOSS ACCOUNT AND CONSEQUENTLY IT IS NOT ELIGIBLE FO R DEPRECIATION AND MAINTENANCE EXPENSES ON THE HELICOPTER THEREBY ADDING RS.2,26,64,020/- TOWARDS DEPRECIATION AND RS.1,43,2 9,665/- TOWARDS MAINTENANCE EXPENSES OF THE HELICOPTER IN T HE ASSESSMENT FRAMED UNDER SECTION 143(3) DATED 30.03. 2016. 5. IN THE APPELLATE PROCEEDINGS, THE LD. CIT(A) PAR TLY ALLOWED THE APPEAL OF THE ASSESSEE. SO FAR AS THE MAINTENAN CE EXPENDITURE OF THE HELICOPTER IS CONCERNED, THE LD. CIT(A) RECORDED A FINDING OF FACT THAT THE AMOUNT DISALLOW ED BY THE AO OF RS.1,43,29,665/- IS FACTUALLY INCORRECT AND HAS IN FACT BEEN CAPITALIZED IN THE COST OF THE HELICOPTER WHILE COR RECT AMOUNT CLAIMED BY THE ASSESSEE IN RESPECT OF MAINTENANCE E XPENSES IN ITA NO.2733/M/2019 M/S. REAL GOLD DEVELOPERS 4 THE PROFIT & LOSS ACCOUNT IS RS.10,06,057/-. SIMIL ARLY, AS REGARDS THE DEPRECIATION THE LD. CIT(A) NOTED THAT HELICOPTER WAS USED FOR BUSINESS PURPOSE AND THE ASSESSEE DERIVED INCOME BY WAY OF RECEIPT OF COMPENSATION OF TDR PURCHASE ON 1 6.03.2012 FROM M/S. PILOT CONSTRUCTION PVT. LTD., HOWEVER CAM E TO THE CONCLUSION THAT USE OF PERSONAL USE CAN NOT BE RULE D OUT AND CONSEQUENTLY RESTRICTED THE DISALLOWANCE TO 25% OF THE TOTAL DEPRECIATION AND MAINTENANCE EXPENSES WHICH COME T O RS.56,66,005/- AND RS. 2,51,514/- RESPECTIVELY. 6. THE LD. A.R. SUBMITTED BEFORE US THAT THE HELICO PTER WAS ACQUIRED ON CO-OWNERSHIP BASIS AS PER THE TERMS OF MOU DATED 24.02.2011A COPY OF WHICH IS FILED AT PAGE NO. 57 O F THE PAPER BOOK. THE LD. A.R. SUBMITTED THAT THERE HAS BEEN A CHANGE IN THE CO-OWNERSHIP AND AS A RESULT THE MOU WAS AMEND ED ON 23.12.2010 A COPY OF WHICH IS FILED AT PAGE NO.65 O F THE PAPER BOOK. AS PER THE CLAUSES OF MOU, HELICOPTER WAS TO BE USED ONLY FOR BUSINESS PURPOSES. THE LD. A.R. SUBMITTED THAT THE ASSESSEE HAS MAINTAINED THE LOG BOOK WHICH CONTAINS THE DETA ILS OF FLYING HOURS OF HELICOPTER, DATE, PLACE AND PURPOSE OF TRA VEL, NAME OF THE PERSON TRAVELLING AND DURATION OF TRAVEL ETC. THE LD. A.R. SUBMITTED THAT THE HELICOPTER WAS SOLELY USED FOR T HE PURPOSE OF BUSINESS AND IT HAS BOOKED EXPENDITURE OF HELICOPTE R BASED ON THE NUMBER OF HOURS IT HAS BEEN USED BY THE ASSESSE E THE DETAILS WHEREOF ARE FILED AT PAGE NO.54 OF THE PAPE R BOOK. THE LD. A.R. SUBMITTED THAT THE AUTHORITIES BELOW HAVE NOT DOUBTED THE GENUINENESS OF THE EXPENDITURE AND EVEN THE FAC TS FURNISHED BEFORE THE AUTHORITIES BELOW IN THE FORM OF LOG BOO K, MOUS AND DETAILS CONTAINED THEREIN. THE LD. A.R. ALSO SUBMI TTED THAT THE FINDING OF THE AO THAT THERE IS NO INCOME FROM THE BUSINESS OF ITA NO.2733/M/2019 M/S. REAL GOLD DEVELOPERS 5 THE REAL ESTATE IS ALSO FACTUALLY INCORRECT AS THE LD. CIT(A) HAS RECORDED A FINDING TO THIS EFFECT. IN ANY CASE, TH E LD. COUNSEL SUBMITTED THAT NON EARNING OF INCOME CAN NOT BE A G ROUND FOR DISALLOWANCE OF EXPENDITURE INCURRED FOR THE PURPOS E OF BUSINESS. THE LD. A.R. SUBMITTED THAT LD. CIT(A) H AS DISALLOWED 25% OF THE EXPENDITURE DEBITED IN THE PROFIT & LOSS ACCOUNT MERELY ON THE GROUND THAT NON BUSINESS USE OF HELIC OPTER CAN NOT BE RULED OUT. THE LD. A.R. SUBMITTED THAT ASSE SSEE HAS FURNISHED COMPLETE DETAILS OF USE OF HELICOPTER WHI CH SHOWED THAT USAGE OF HELICOPTER FOR BUSINESS PURPOSE AND T HE ONUS IS ON THE DEPARTMENT TO PROVE THAT SAME IS USED FOR NON B USINESS PURPOSE MORE SO WHEN GENUINENESS OF THE BUSINESS EX PENDITURE AND FACTS CONTAINED IN THE LOG BOOK WERE ACCEPTED. THE LD. A.R. RELIED ON THE DECISION OF HONBLE GUJARAT HIGH COUR T IN THE CASE OF SAYAJI IRON AND ENGINEERING CO. VS. CIT (2002) 253 ITR 749 AND SUBMITTED THAT THE DISALLOWANCE AS SUSTAINED BY LD. CIT(A) MAY KINDLY BE DELETED. 7. THE LD. D.R., ON THE OTHER HAND, RELIED HEAVILY ON THE ORDER OF AO AND SUBMITTED THAT EVEN LD. CIT(A) HAS WRONGL Y ALLOWED THE PARTIAL RELIEF TO THE ASSESSEE AND PRAYED THAT THE RELIEF ALLOWED BY LD. CIT(A) MAY KINDLY BE REVERSED AND OR DER OF AO MAY BE KINDLY RESTORED AS THE REVENUE AS CHALLENGED IN GROUND NO.2 & 3 OF ITS APPEAL THE PARTIAL ALLOWANCE OF REL IEF BY LD. CIT(A). 8. AFTER HEARING BOTH THE PARTIES AND PERUSING THE MATERIAL ON RECORD, WE FIND THAT IN THIS CASE THE ASSESSEE HAS PRODUCED BEFORE THE AUTHORITIES BELOW THE COPIES OF MOU AND AMENDED MOU AFTER CHANGE IN CO-OWNERSHIP AND CLAUSES THERE IN THAT THE ITA NO.2733/M/2019 M/S. REAL GOLD DEVELOPERS 6 HELICOPTER SHALL BE USED FOR BUSINESS PURPOSE ONLY. THE ASSESSEE HAS ALSO FURNISHED LOG BOOK CONTAINING THE DETAILS OF THE TRAVEL PLACE, DATE OF TRAVEL, PERSON TRAVELLING AND PURPOSE OF TRAVEL AND ALSO THE EXPENSES HAVE BEEN CLAIMED BASE D ON THE NUMBER OF HOURS, THE HELICOPTER WAS USED BY THE ASS ESSEE IN ITS BUSINESS. WE FIND THAT THE AUTHORITIES BELOW HAVE NOT DOUBTED THE GENUINENESS OF THE EXPENDITURE OR THE DETAILS A S FURNISHED BY THE ASSESSEE. UNDER THESE CIRCUMSTANCES, WE ARE NOT IN A POSITION TO SUSTAIN THE ORDER OF THE LD CIT(A) AND ACCORDINGLY WE MODIFY THE ORDER OF LD. CIT(A) AND DIRECT THE AO TO ALLOW THE FULL AMOUNT OF DEPRECIATION AND MAINTENANCE EXPENDITURE AS CLAIMED BY THE ASSESSEE. GROUND NO.1 & 2 ARE ALLOW ED. 9. ACCORDINGLY, THE APPEAL OF THE ASSESSEE IS ALLOW ED. ITA NO.2733/M/2019 (REVENUES APPEAL) 10. THE ISSUE RAISED IN GROUND NO. 1 BY THE REVENUE IS AGAINST THE ORDER OF LD CIT(A) DELETING THE ADDITION OF RS. 20,45,30,621/- AS MADE BY THE AO ON THE GROUND THAT THE PROJECT WA S STILL IN PROGRESS AND NOT REACHED FINALITY. 11. THE FACTS IN BRIEF ARE THAT DURING THE COURSE O F ASSESSMENT PROCEEDINGS THE AO OBSERVED THAT ASSESSEE HAS MADE ADDITION TO SOLAR POWER EQUIPMENT OF RS.51,13,26,553/- DURING T HE YEAR AND ACCORDINGLY CLAIMED DEPRECIATION THEREON AMOUNTING TO RS.20,45,26,621/-. THE OTHER PARTIES ALSO INVESTED IN THE SOLAR POWER PLANTS. ACCORDING TO THE AO THE ADDITION TO S OLAR POWER EQUIPMENT WAS SHOWN UNDER THE HEAD CAPITAL WORK IN PROGRESS WHICH SHOWED THAT PROJECT WAS NOT COMPLETE AND ASSE SSEE IS NOT ELIGIBLE TO CLAIM DEPRECIATION. IT WAS PLEADED BEF ORE THE AO BY THE ASSESSEE THAT AFTER PURCHASE OF SOLAR POWER PLA NT THE WAS ITA NO.2733/M/2019 M/S. REAL GOLD DEVELOPERS 7 LEASED OUT TO M/S. ALFA INFRAPROP PVT. LTD. AS A RE SULT THE ASSET WAS PUT TO USE IMMEDIATELY UPON LEASING OUT AND CON SEQUENTLY THE ASSESSEE IS ELIGIBLE TO CLAIM THE DEPRECIATION THEREON. HOWEVER, THE AO BRUSHED ASIDE THE SUBMISSIONS OF TH E ASSESSEE BY HOLDING THAT THE ASSESSEE HAS DERIVED INCOME ONL Y BY WAY OF INTEREST AND DIVIDEND AND NOT FROM REAL ESTATE AND THEREFORE ASSET COULD NOT BE TREATED AS PUT TO USE BY M/S. AL FA INFRAPROP PVT. LTD. AND HENCE DISALLOWED THE CLAIM OF DEPRECI ATION IN THE ASSESSMENT FRAMED. 12. IN THE APPELLATE PROCEEDINGS, THE LD. CIT(A) DE LETED THE ADDITION AS MADE BY THE AO ON ACCOUNT OF DEPRECIATI ON OF SOLAR POWER PLANT BY OBSERVING AND HOLDING THAT IN THE CA SES OF OTHER CO-OWNER NAMELY M/S. ADITYA MEDI SALES LTD. AND M/S . SUN PHARMACEUTICALS PVT. LTD. SIMILAR DISALLOWANCE ON A CCOUNT OF DEPRECIATION AS MADE BY THE AO IN RESPECT OF SOLAR POWER PLANT WAS DELETED BY THE LD. CIT(A) AND ACCORDINGLY ALLOW ED THE APPEAL OF THE ASSESSEE. 13. THE LD. COUNSEL OF THE ASSESSEE AT OUTSET SUBMI TTED THAT LD. CIT(A) HAS DELETED THE DISALLOWANCE OF DEPRECIA TION ON SOLAR POWER EQUIPMENT ON MERITS AS WELL AS ON THE GROUND THAT SIMILAR DISALLOWANCE WAS DELETED BY THE LD. CIT(A) FOR A.Y. 2013-14 IN THE CASE OF CO-OWNERS M/S. ADITYA MEDI SALES LTD. THE APPEAL FILED BY THE REVENUE BEFORE THE TRIBUNAL, THE ORDE R OF LD. CIT(A) WAS UPHELD. HOWEVER, THE SAID DISALLOWANCE OF DEPR ECIATION HAS NOT BEEN CHALLENGED MEANING THEREBY THAT DEPARTMENT HAS ACCEPTED THE ORDER PASSED BY LD. CIT(A) IN THE CASE OF M/S. ADITYA MEDI SALES LTD. SIMILARLY IN THE CASE OF OTH ER CO-OWNERS M/S. SUN PHARMACEUTICALS PVT. LTD. AND M/S. UNIMED ITA NO.2733/M/2019 M/S. REAL GOLD DEVELOPERS 8 TECHNOLOGIES LTD., THE TRIBUNAL THROUGH A COMMON OR DER DATED 11.05.2020 FOR A.Y. 2013-14 UPHELD THE ORDER PASSED BY THE LD. CIT(A) THEREBY UPHOLDING THE DELETION OF DEPRECIATI ON ON SOLAR POWER EQUIPMENT BY HOLDING THAT ONCE THE DEPARTMENT HAS ACCEPTED THE ORDER PASSED BY LD. CIT(A) DELETING TH E DISALLOWANCE IN THE CASE OF CO-OWNER M/S. ADITYA ME DI SALES LTD. THE DEPRECIATION HAS TO BE ALLOWED IN THE PRESENT C ASE ALSO. IT WAS FURTHER HELD BY THE TRIBUNAL THAT THERE WAS NO FINDING THAT PART OF THE ASSET OWNED BY THE ASSESSEE COULD BE US ED FOR INDEPENDENT GENERATION OF POWER IN PHACED MANNER AN D THEREFORE THE FINDINGS IN THE CASE OF OTHER CO-OWNE RS HAVE TO BE FOLLOWED. 14. THE LD. D.R. WHILE RELYING HEAVILY ON THE ORDER OF AO SUBMITTED THAT THE ASSETS ACQUIRED BY THE ASSESSEE UNDER THE HEAD SOLAR POWER PLANT WERE CAPITALIZED UNDER THE H EAD WORK IN PROGRESS MEANING THEREBY THAT ASSETS HAVE NOT BEEN PUT TO USE AND THEREFORE ASSESSEE IS NOT ENTITLED FOR ANY DEPR ECIATION AND THEREFORE PRAYED THAT ORDER OF LD. CIT(A) MAY BE SE T ASIDE ON THIS ISSUE AND THAT OF THE AO MAY BE RESTORED. 15. AFTER HEARING BOTH THE PARTIES AND PERUSING THE MATERIAL ON RECORD, WE FIND THAT THE ISSUE IS SQUARELY COVERED BY THE DECISION OF THE CO-ORDINATE BENCH OF THE TRIBUNAL IN THE CAS E OF OTHER CO- OWNERS M/S. SUN PHARMACEUTICALS PVT. LTD. AND M/S. UNIMED TECHNOLOGIES LTD. VIDE ORDER DATED 11.05.2020 FOR A .Y. 2013-14 IN ITA NO.1636/AHD/2018 DATED 11.05.2020. THE OPER ATIVE PART IS AS UNDER: 10. ON DUE CONSIDERATION OF THESE FACTS, WE ARE OF THE VIEW THAT TO SOME EXTENT DISCREPANCIES POINTED OUT BY THE AO AND BROUGHT TO OUR NOTICE BY THE ID.CIT-DR DO CREATE A SUSPICION IN OUR MIND ABOUT THE USER OF TH E ASSETS FOR THE PURPOSE OF ITA NO.2733/M/2019 M/S. REAL GOLD DEVELOPERS 9 BUSINESS BY THE PRESENT ASSESSEES, BUT SIMULTANEOUS LY IF IT IS TO BE LOOKED IN SUCH A MANNER THAT MP POWER MANAGEMENT CO. LTD. AN INSTRUM ENTALITY OF MADHYA PRADESH STATE GOVERNMENT, HAS AWARDED A CONTRACT FO R ESTABLISHMENT OF 16 BLOCKS OF SOLAR POWER PLANT, AND SUCH BLOCKS WERE ESTABLIS HED, THEREAFTER IT AS SOLD TO REAL GOLD DEVELOPERS LLP, AND RGD LLP FURTHER SOLD THESE 16 BLOCKS IN PART TO FIVE CONCERNS INCLUDING THE PRESENT TWO ASSESSEES. IT IS TO BE APPRECIATED THAT IF THIS SOLAR POWER PLANT OF 16 BLOCKS IS AN INTEGRATED POW ER PLANT AND PART OF THE BLOCK PURCHASED BY PRESENT TWO ASSESSEES CANNOT WORK INDE PENDENTLY, THEN IT IS TO BE TREATED THAT THE PLANT WAS ESTABLISHED. THOUGH THER E IS NO SPECIFIC DISCUSSION ON THIS POINT, AND THERE IS NO CONCLUSION, BUT WE WOUL D LIKE TO TAKE NOTE OF THE FACT THAT AS FAR AS PURCHASE OF THESE ASSETS, ITS USER F OR THE PURPOSE OF BUSINESS HAS NOT BEEN DENIED BY THE AO HIMSELF IN THE SUBSEQUENT YEA R. HE HAS ALLOWED THE DEPRECIATION TO THE ASSESSEE IN THE NEXT ASSESSMENT YEAR. IN THE PRESENT YEAR ONLY DISPUTE IS YEAR OF ADMISSIBILITY OF THE DEPRECIATIO N. ON ACCOUNT OF SOME TECHNICAL GROUND, IF IT IS DENIED IN THIS YEAR, THEN IT WILL BE ADMISSIBLE IN THE NEXT YEAR, THUS, CONSIDERING STAND OF THE REVENUE IN THE CASE OF ADI TYA MEDISALES LTD. WHERE SUCH DEPRECIATION HAS BEEN ALLOWED AND ACCEPTED, MORE SO WHEN NO FINDING WAS RECORDED THAT THE PART OF THE ASSETS OWNED BY THE A SSESSEES COULD BE USED INDEPENDENTLY FOR GENERATION OF POWER IN A PHASED M ANNER. WE CONSTRUE THAT BLOCKS OF PANEL OWNED BY ASSESSEES BE TREATED AS IN TEGRATED PART OF 16 BLOCKS PURCHASED AND INSTALLED BY AIPL AND NOT TO BE TREAT ED SEPARATELY. IN OTHER WORDS, PART OF ASSETS OWNED BY THESE TWO ASSESSEES BE TREA TED AS INTEGRATED PART OF TOTAL SOLAR PLANT CONSISTING OF 16 BLOCKS. IF THAT BE SO, THEN INSTALLATION OF OTHER BLOCKS HAVE BEEN ACCEPTED BY THE DEPARTMENT, AND NOT CHALL ENGED BEFORE THE TRIBUNAL. THERE IS NO DISPARITY ON THE FACTS WITH REGARD TO T HE BLOCKS OWNED BY THE AMSL VISA- VIS OF THE ASSESSEE. WE ARE OF THE VIEW THAT THERE IS NO JUSTIFICATION TO INTERFERE IN THE FINDING OF THE ID.CIT(A) IN THE CASES OF PRESEN T TWO ASSESSEES ALSO. THEREFORE, WE DO NOT FIND ANY MERIT IN THESE TWO APPEALS; THEY ARE DISMISSED. 11. IN THE RESULT, BOTH THE APPEALS OF THE REVE NUE ARE DISMISSED. 16. IN THE SAME ACQUISITION OTHER COMPANIES M/S. SU N PHARMACEUTICALS PVT. LTD. AND M/S. UNIMED TECHNOLOG IES LTD. ALSO ACQUIRED THE PLANT OF 5.81 MEGA WATTS AND 1.87 MEGA WATTS RESPECTIVELY IN WHICH ASSESSEE ACQUIRED 11.69 MEGA WATTS. SINCE THE DEPRECIATION HAS BEEN ALLOWED TO THE CO-O WNERS BY THE TRIBUNAL ON THE SAME FACTS, WE ARE INCLINED TO UPHO LD THE ORDER OF THE LD. CIT(A) BY FOLLOWING THE COORDINATE BENCH DECISION AND CONSEQUENTLY GROUND NO.1 OF THE REVENUES APPEAL IS DISMISSED. 17. THE ISSUES RAISED IN GROUND NO.2 & 3 HAVE ALREA DY BEEN ADJUDICATED BY US IN THE CROSS APPEAL OF THE ASSESS EE IN ITA NO. 1940/MUM/2019. ACCORDINGLY, THE ISSUES INVOLVED IN GROUND NO ITA NO.2733/M/2019 M/S. REAL GOLD DEVELOPERS 10 2 AND 3 ARE ALREADY ADJUDICATED IN FAVOUR OF THE AS SESSEE. CONSEQUENTLY GROUND NO 2 AND 3 ARE BEING DISMISSED . 18. ACCORDINGLY, THE APPEAL OF THE REVENUE IS DISMI SSED. 19. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED AND THAT OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 09.07.2021. SD/- SD/- ( AMARJIT SINGH) (RAJESH KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 09.07.2021. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORDER DY/ASS TT. REGISTRAR, ITAT, MUMBAI.