DCIT, CHITTORGARH V. Sh. Mohmed Sher Khan, CHITTORGARH

ITA 340/JODH/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 5169 (ITAT-JODHPUR)
• Duration Of Justice: 9 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-03-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2011-2012
• Appeal Filed On: 17-06-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ALKA R JAIN
• Assessee Lawyers: SHYAM SINGHVI
• Keywords: Depreciation; Additional depreciation
• Section: 32

Judgement Text

IN THE INCOME TAX APPELALTE TRIBUNAL JODHPUR BENCH, JODHPUR BEFORE: SHRI N. S. SAINI, ACCOUNTANT MEMBER AND SHRI GEORGE MATHAN, JUDICIAL MEMBER I.T.A.NO.340/JODH/2015 ASSESSMENT YEAR: 2011-12 THE DY. COMMISSIONER OF INCOME- TAX-CIRCLE, KILA ROAD, CHITTORGARH VS. SH. MOHMED SHER KHAN, PROP. M/S. PROGRESSIVE ENTERPRISES, KHAWAJA BAGH, VPO SAWA, CHITTORGARH. PAN :ABFPK1122P APPELLANT RESPONDENT APPELLANT BY SMT. ALKA R. JAIN, DR RESPONDENT BY SHRI SHYAM SINGHVI, AR DATE OF HEARING: 17.03.2016 DATE OF PRONOUNCEMENT: 17.03.16 O R D E R PER: GEORGE MATHAN, J.M. : THIS APPEAL IS FILED BY THE REVENUE AGAINST THE OR DER OF THE LEARNED CIT (A)-I, UDAIPUR DATED 30-04-2015 PASSED IN APPEA L NO.120/IT/UDR/2014- 2015 FOR ASSESSMENT YEAR 2011-12. 2. SMT. ALKA R. JAIN, LEARNED DR REPRESENTED ON BEH ALF OF THE REVENUE AND SHRI SHYAM SINGHVI, LEARNED AR REPRESENTED ON B EHALF OF THE ASSESSEE. 3. IT WAS SUBMITTED BY THE LEARNED DR THAT THE ONLY ISSUE IN THE REVENUES APPEAL WAS AGAINST THE ACTION OF THE LEAR NED CIT (A) IN DIRECTING 2 ITA NO.340/JODH/2015 THE DELETION OF DISALLOWANCE OF HIGHER DEPRECATION CLAIM ON VARIOUS ITEMS OF WIND MILL INCLUDING COST OF CIVIL WORK, FOUNDATION, ELECTRICAL COMPONENTS, INSTALLATION AND COMMON POWER EVACUATION BY FOLLOWI NG THE DECISION OF THE HON'BLE RAJASTHAN HIGH COURT IN THE CASE OF M/S. K. K. ENTERPRISES [2014] 108 DTR (RAJ.) 109. IT WAS A SUBMISSION BY THE LEARNED DR THAT THE EVACUATION CHARGE DID NOT RESULT IN ANY TRANSFERABLE ASSET AND THE FOUNDATION WORK AND THE TRANSFORMER PLINTH WAS BASICALLY CIVIL WORK AND DID NOT CONSTITUTE A WIND MILL. IT WAS ALSO A SUBMISSION THAT THE REVENUE HAS ALSO CHALLENGED THE ACTION OF THE LEARNED CIT (A) IN ALLOWING THE ADDIT IONAL DEPRECIATION ON THE WIND MILL ITSELF IGNORING THE FACT THAT WIND MILLS DO NOT FALL UNDER CLAUSE (II) OF SECTION 32 (1) OF THE ACT AND HENCE, WAS NOT ELIGIB LE FOR ADDITIONAL DEPRECIATION. 4. IN REPLY, THE LEARNED AR SUBMITTED THAT IN VIEW OF THE DECISION OF THE HON'BLE RAJASTHAN HIGH COURT IN THE CASE OF M/S. K. K. ENTERPRISE REFERRED TO (SUPRA) WHICH HAS BEEN FOLLOWED BY THE LEARNED CIT (A) AND THE SAID DECISION BEING A DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT, THE ASSESSEE WAS ELIGIBLE FOR HIGHER DEPRECIATION IN RESPECT OF THE COST OF CIVIL WORK, FOUNDATION, ELECTRICAL COMPONENTS, INSTALLATION AND COMMON POWE R EVACUATION AS ALSO ADDITIONAL DEPRECIATION ON THE WIND MILL. 5. WE HAVE CONSIDERED THE SUBMISSIONS. A PERUSAL OF THE ORDER OF THE LEARNED CIT (A) SHOWS THAT THE ISSUE OF ADDITIONAL DEPRECIATION AND THE ISSUE 3 ITA NO.340/JODH/2015 OF HIGHER DEPRECIATION HAVE BEEN ADJUDICATED BY THE LEARNED CIT (A) BY FOLLOWING THE DECISION OF THE HON'BLE JURISDICTIONA L HIGH COURT IN THE CASE OF M/S. K.K. ENTERPRISE REFERRED TO (SUPRA). AS IT IS NOTICED THAT THE ISSUES ARE SQUARELY COVERED BY THE DECISION OF THE HON'BLE JUR ISDICTIONAL HIGH COURT OF RAJASTHAN AND THE LEARNED CIT (A) HAS FOLLOWED THE JUDICIAL DISCIPLINE IN FOLLOWING THE SAME AND AS THE REVENUE HAS NOT BEEN ABLE TO DISLODGE THE FINDINGS OF THE LEARNED CIT (A), THE SAME STANDS UP HELD. 6. IN THE RESULT, THE APPEAL OF THE REVENUE STANDS DISMISSED. SD/- SD/- (N. S. SAINI) (GEORGE MATHAN) ACCOUNTANT MEMBER JUDICIAL MEMBER JODHPUR, DATED:17 TH MARCH, 2016 LAKSHMIKANTA LAKSHMIKANTA LAKSHMIKANTA LAKSHMIKANTA DEKA/ DEKA/ DEKA/ DEKA/- -- - COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT 2. THE RESPONDENT 3. CIT CONCERNED 4. CIT (A) CONCERNED 5. DR, ITAT, JODHPUR 6. GUARD FILE BY ORDER, SR. PRIVATE SECRETARY DATE INITIAL ORIGINAL DICTATION PAD & DRAFT ARE ENCLOSED IN THE FILE 1. DRAFT DICTATED ON 17.03.16 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 18.03.16 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 18.03.16 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 18.03. 16 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 18 .03.16 SR.P S 6. DATE OF PRONOUNCEMENT 17.03.16 SR.PS 7. FILE SENT TO THE BENCH CLERK SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER 4 ITA NO.340/JODH/2015